IN THE SUPREME COURT OF OHIO MOTION TO DISMISS OF RESPONDENTS JUDGE CLAIR E. DICKINSON AND COURT ADMINISTRATOR C. MICHAEL WALSH

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1 IN THE SUPREME COURT OF OHIO DUANE GIBSON, V. Relator, CLAIR E. DICKINSON, JUDGE, Case No Original Action in Procedendo C. MICHAEL WALSH, COURT ADMINISTRATOR Respondents. MOTION TO DISMISS OF RESPONDENTS JUDGE CLAIR E. DICKINSON AND COURT ADMINISTRATOR C. MICHAEL WALSH DUANE GIBSON MIKE DeWINE ( ) # Ohio Attorney General P.O. Box 8107 Mansfield, Ohio ERIN BUTCHER-LYDEN ( ) Counsel of Record Relator DAMIAN W. SIKORA ( ) Assistant Attorneys General Constitutional Offices Section 30 E. Broad Street, 16th Floor Columbus, Ohio (614) ; (614) Fax erin.butcher-lyden@ohioattomeygeneral.gov Attorneys for Respondents Judge Clair E. Dickinson Court Administrator C. Michael Walsh F LED JUL 08 m9 CLERK OF CUllRT SUP'REME COURT OF OHIO

2 IN THE SUPREME COURT OF OHIO DUANE GIBSON, V. Relator, CLAIR E. DICKINSON, JUDGE, Case No Original Action in Procedendo C. MICHAEL WALSH, COURT ADMINISTRATOR Respondents. MOTION TO DISMISS OF RESPONDENTS JUDGE CLAIR E. DICKINSON AND COURT ADMINISTRATOR C. MICHAEL WALSH Pursuant to Sup. Ct. Prac. R and Ohio Civ. Rule 12(B)(6), Respondents Judge Clair E. Dickinson and Court Administrator C. Michael Walsh of the Ninth District Court of Appeals hereby move this Court to dismiss Relator's petition for a writ of procedendo. A memorandum in support is attached. Respectfully submitted, MIKE DeWINE ( ) Ohio Attorney General ^ ^.t ER NUTCHER-LYD i ( ) Counsel of Record DAMIAN W. SIKORA ( ) Assistant Attorneys General Constitutional Offices Secfion 30 E. Broad Street, 16th Floor Columbus^o (614) ; (614) Fax erin.butcher-lyden@ohioattomeygeneral.gov Attorneys for Respondents Judge Clair E. Dickinson and Court Administrator C. Michael Walsh

3 MEMORANDUM IN SUPPORT OF RESPONDENT'S MOTION TO DISMISS 1. INTRODUCTION Relator Duane Gibson initiated this action in procedendo, but does not appear to ask this Court to compel Respondents Judge Clair E. Dickinson and Court Administrator C. Michael Walsh of the Ninth District Court of Appeals to perform any action. Gibson is not entitled to such extraordinary relief and this Court must deny Gibson's request for a writ of procedendo. II. STATEMENT OF FACTS On July 28, 2000, the Summit County Court of Common Pleas convicted Relator Gibson of aggravated arson and burglary, felonies to which he pled guilty. Gibson's Complaint, at p. 2. On September 6, 2000, the trial court sentenced Gibson to fourteen years imprisonment: a nonmandatory term of eight years in prison for the crime of arson and a six year non-mandatory term in prison for the crime of burglary, to be served consecutively. Id. at p. 2. The Ninth District Court of Appeals affirmed Mr. Gibson's convictions. Id. at p. 1. However, the trial court had failed to include language in Gibson's sentence regarding post-release control. Id. at p. 3. Pursuant to State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, the trial court held a re-sentencing hearing to correct its oversight in Gibson's original sentence. Gibson's Complaint, at pp Prior to this re-sentencing hearing, Gibson filed a motion to move the trial court to vacate his pleas from the July 28, 2000 conviction. On October 13, 2009, the trial court vacated its September 6, 2000 sentence and resentenced Gibson to include language on post-release control. Id. at p. 2. In its re-sentencing - _. -.. : an^ry, the trial court aeitredv rosan s rnotioir to vacat..-his..arl.er guilty pleas^ re:ydr-ated C*ibson' s sentences of eight years in prison for arson and six years in prison for burglary to be served 1

4 consecutively, and ordered Gibson to three years of mandatory post-release control. Id. at pp Gibson appealed the trial court's October 13, 2009 re-sentencing entry to the Ninth District Court of Appeals. Id. at p. 3. On appeal, Gibson argued that the trial court erred in denying his motion to withdraw his plea, that the trial court incorrectly imposed non-minimum and consecutive sentences, and made claims of ineffective assistance of his counsel. Id. Gibson then filed a supplemental appellant brief that argued that the trial court could not impose a sentence on him for the arson count because that sentence had expired. Id. On February 9, 2011, the Ninth District Court of Appeals affirmed the trial court's denial of Gibson's motion to withdraw his plea for lack of jurisdiction, but vacated the trial court's resentencing entry to the extent that it addressed aspects of Gibson's sentence other than postrelease control. Id. pp The Ninth District Court of Appeals then issued a special mandate to the trial court to carry its judgment into execution. Id. at p. 4. Respondent Judge Dickinson was the presiding judge over this appeal. Id. In late May or early June of 2011, Gibson sent correspondence to the Ninth District informing it that the trial court had not taken any further action since the Ninth District Court of Appeals had issued its February 9, 2011 entry. Id. In a June 6, 2011 letter to Gibson, signed by Respondent Court Administrator Walsh, the Ninth District Court of Appeals informed Gibson that the February 9, 2011 decision was not remanded to the trial court and did not require further action from the trial court. Gibson's Complaint, at p. 5. ^ Gibsonfhirleatmscornpiaint:orawrtt:,.prccedendo,asking-th;sCourtto_compel e trial court to issue a final judgment "based upon the adjudication of the court of appeals [..]" and to vacate his sentence and release him from custody. Id. at p. 6. 2

5 For the following reasons, Respondents Judge Dickinson and Court Administrator C. Michael Walsh respectfully ask this Court to dismiss Gibson's writ of procedendo against them. III. ARGUMENT A. Standard of Review A motion to dismiss for failure to state a claim upon which a court can grant relief challenges the sufficiency of the complaint itself, not evidence outside of the complaint. Volbers-Klarich v. Middletown Mgmt, Inc., 125 Ohio St. 3d. 494, 2010-Ohio-2057, at 11. When considering the factual allegations of the complaint, a court must accept incorporated items as true and "[flurthermore, the plaintiff must be afforded all reasonable inferences possibly derived therefrom." Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192. Finally, a court must find that the plaintiff s complaint appears beyond doubt that it can prove no set of facts warranting relief. Civ. R. 12(B); State ex rel. Natalina Food Co. v. Ohio Civ. Rights Comm. (1990), 55 Ohio St.3d 98, 99. B. Gibson's complaint fails because he did not bring his claim in the name of the State on his behalf. A complaint for a writ of procedendo must be brought in the name of the state, on relation of the person filing the writ. Simmons v. Saffold, 8th Dist. No , 2010-Ohio-918, at 2; State of Ohio v. Adkins, 6th Dist. No. L , 2004-Ohio-2454, at 2. Here, Gibson seeks a writ of procedendo, but brought his complaint "In re: Gibson," failing to bring his complaint in the nanie of the State on his behalf. Accordingly, this Court should dismiss Gibson's complaint. 3

6 C. Gibson's request for a writ of procedendo must fail because he does not identify any act that he wishes to compel Judge Dickinson or Court Administrator Walsh to perform. A writ of procedendo will not issue where the court lacks a clear legal duty to perform the requested act. State ex rel. Sawicki v. Court of Common Pleas of Lucas County, 126 Ohio St.3d 198, 2010-Ohio-3299, at P 11. Gibson asks this Court to compel the Summit County Court of Common Pleas to "move to Judgment and execute the court of appeals [sic] order and vacate the relator [sic] sentence and order his release from custody." Gibson's Complaint, at p. 6. Gibson does not ask this Court to compel Respondents Judge Dickinson or Court Administrator Walsh of the court of appeals to perform any act. Accordingly, this Court should dismiss Gibson's complaint because neither Judge Dickinson nor Court Administrator Walsh has a clear legal duty to perform. IV. CONCLUSION For the foregoing reasons, the Respondents Judge Dickinson and Court Administrator Walsh respectfully ask this Court to dismiss Gibson's complaint. 4

7 Respectfully submitted, MIKE DeWINE ( ) Ohio Attorney General ER UTCHER-LYMN ( ) Counsel of Record DAMIAN W. SIKORA ( ) Assistant Attorneys General Constitutional Offices Section 30 E. Broad Street, 16th Floor Columbus, Ohio (614) ; (614) Fax erin.butcher-lyden@ohioattomeygeneral.gov Attorneys for Respondents Judge Clair E. Dickinson and Court Administrator C. Michael Walsh CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing Motion to Dismiss was served by regular U.S. mail, postage prepaid, on July 8, 2011, upon the following: DUANE GIBSON # P.O. Box 8107 Mansfield, Ohio Relator _ ^i^un k4 Ad a^n) ER UTCHER-DEN ( ) Assistant Attorney General 5

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