IN THE SUPREME COURT OF OHIO

Transcription

1 !r 0r^ IN THE SUPREME COURT OF OHIO STATE EX REL. RICIIARD L. CURLEY, Relator, V. Case No Original Action in Replevin NINTH DISTRICT COURT OF APPEALS, Respondent. 1VIOT`ION TO DISMISS OF RESPONDENT MICHAEL DEWINE ( ) Ohio Attorney General RICHARD L. CURLEY, # Mansfield Correctional Institution P.O. Box 8107 Mansfield, OH Pro se Relator SARAI-I PIERCE ( ) *Counsel of Record DARLENE FAWKES PETTIT ( ) Assistant Attorneys General Constitutzonal Offices Section 30 East Broad Street, 16th Floor Columbus, Ohio Tel: (614) Fax: (614) sarah. pi erce oa ohioattorneygeneral. gov darlene.pettit(c3ohioattorneygeneral. gov Caunsel for Respondent, Ninth District Court ofappeals tt L f4r^ '^ ^ ;fv^s^ E3 Y 4 ; ^t ^,^E

2 IN THE SUPREME COURT OF OHIO STATE EX REL. RICI-IARD L. CURLEY, Relator, Case No V. Original Action in Replevin NINTI-I DISTRICT COURT OF APPEALS, Respondent. MOTION TO DISMISS OF RESPONDENT Pursuant to Sup.Ct.Prac.R (A)(1) and Civ.R.12(B)(6), Respondent the Ninth District Court of Appeals of Ohio hereby moves this Court to dismiss Relator's petition for a writ of replevin. A memorandum in support is attached. Respectfi.211y submitted, MICI-IAEL DEWINE ( ) Ohio Attorney General SARAH PIERCE ( ) *Counsel ofrecora' DARLENE FAWKES PETTIT ( ) Assistant Attorneys General Constitutional Offices Section 30 East Broad Street, 16th Floor Coluznbus, Ohio Tel: (614) Fax: (614) sarah.pierce a ohioattorneygenerai.gov darlene.pettit(cr^,ohioattorneygeneral.gov Counsel for Respondent Ninth District Court of'appeals

3 MEMORANDUM IN SUPPORT OF RESPONDENT'S MOTION TO I)IS:MISS 1. INTRODUCTION Relator Richard Curley, an inmate, filed a complaint against Respondent Ninth District Court of Appeals alleging that his sentencing entry was not a final appealable order under Crim. R. 32. Relator therefore claims to be entitled to replevin of funds taken from his personal inniate account to pay for appellate court eosts. Relator requests relief that is not available under Ohio law and, alternatively, fails to state a claim upon which a court can grant relief. Accordingly, and as argued below, Respondent respectfully asks this Court to dismiss Relator's complaint. II. STATEMENT OF FACTS On January 4, 2001, Relator pled guilty to seven counts of burglary. Complaint, Exhibit, p. 1(journal entry dated 2/21/2001).' On February 13, 2001, Relator was sentenced to a total prison term of 21 years. Id. at pp Relator was resentenced on August 12, 2008 and May 18, 2011, receiving the same sentence given in Id. at pp. 3-6 (journal entries dated 5/18/2011 and 8/25/2008). On December 2, 2013, Relator filed the present action for a"writ of replevin," In his complaint, Relator alleges that his sentencing entry was not a final appealable order under Crim. R. 32 because Respondent failed to properly review the sentences handed down by the trial court and Relator was not advised of his right to appeal his sentence. Complaint, ^1[ Relator therefore claims to be entitled to replevin of funds taken from his personal inmate account to pay for appellate court costs. Complaint, 'FjT Civil Rule 12(B)(6) requires that, where a motion to dismiss present matters outside of the complaint, the court must treat the motion as a summary judgment motion under Civil Rule 56. The court may consider documents attached to or incorporated into the complaint in a motion to dismiss, however. State ex rel. Cr abtree v. Franklin Cty, Bd of f Health, 77 Ohio St.3d 247, 249, 673 N.E.2d 1281 (1997). Here, Relator has attached several documents that appear to be extensions of his complaint. 2

4 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. UolUers-Klarich v. 11%fiddletown Mgmt., Inc., 125 Ohio St.3d 494, 2010-Ohio-2057, 929 N.E.2d 434, Ti 11. When considering the factual allegations of the complaint, a court must accept incorporated items as true and "the plaintiff must be afforded all reasonable inferences possibly derived therefrom." Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988). Finally, a court must find that the plaintiff's complaint does not provide relief on any possible theory. Civ. R. 12(B)(6); State Auto. 1V1ut. Ins. Co, v. Titanium Metals Corp., 108 Ohio St.3d 540, 2006-Ohio-1713, 844 N.E.2d 1999,118. B. Relator's complaint must fail because he has not requested the appropriate writ for relief and this Court lacks jurisdiction. As an initial matter, Relator's complaint for a "writ of replevin" should be dismissed for lack of jurisdiction. Relator requests a "writ of replevin" alleging that he is entitled to a return of funds that were taken from his personal inmate account to pay for appellate court costs. No such writ exists in Ohio law. An action in replevin is a civil action, and is based solely on statutory authority. Gates v. Praul, No. 10AP-784, 2011-Ohio-6230, 33 (10th Dist. Dec. 6, 2011), appeal not allowed, 2012-Ohio-3054, 132 Ohio St. 3d 1462, 969 N.E2d 1230 (2012); see also R.C. Chapter Trial courts have original, exclusive jurisdiction over replevin actions. R.C (A) (county courts); R.C (A)(2)(a)(i) (small claims divisions of municipal and county courts); R.C (courts of common pleas). An original action in replevin is not contemplated by the Rules of this Court, and this action should therefore be dismissed for lack of jurisdiction. Sup.Ct.Prac.R

5 C. Alternatively, Relator fails to meet the requirements for a writ of mandamus to issue. To the extent Relator intended to request a writ of mandarnus conipelling Respondent to return fi.ulds allegedly removed from Relator's inmate accou.nt, Relator's complaint should be dismissed. Regardless of how Relator captions his request for extraordinary relief, he is not entitled to relief in mandamus from this Court. A court will only issue a writ of mandamus where (1) the relator has a clear legal right to the requested relief; (2) the respondent has a clear legal duty to perform the requested relief; and (3) the relator has no adequate remedy at law. State ex 7 el. Van Gundy v, Indus. Comna., 111 Ohio St.3d 395, 2006-Ohio-5854, 856 N.E.2d 951, 13, citing State ex rel: Luna v. Huffinan, 74 Ohio St.3d 486, 487, 659 N.E.2d 1279 (1996). Because Relator fails to satisfy these requirements, his action must fail and his complaint should be dismissed. Relator does not have a clear legal right to the relief he requests, nor does Respondent have a clear legal duty to grant it. Relator is responsible for costs of an appeal where the appeal is dismissed, or where the judgment appealed is affirmed. App. R. 24. Relator essentially argues that because his original sentezicing order was deficient, Respondent was without jurisdiction to hear any subsequent appeals and Respondent must therefore surrender all court costs seized in connection with these appeals. Relator, however, presents no evidence that the costs of his four appeals were inappropriately assessed to him. See Relator's Exhibit, pp (entries dated 2/23/2001; 1/14/2004; 3/25/2004; and 9/17/2008). Further, Relator has been re-sentenced in accordance with R.C and any sentencing deficiencies have been cured. See Relator's Exhibits, pp. 3-6 (journal entries dated 5/18/2011 and 8/25/2008), Accordingly, Relator does not have a clear legal right to have his court costs returned, nor does Respondent have a clear legal duty to return them, 4

6 Finally, Relator had an adequate remedy at law of which he availed himself. Relief in mandamus is precluded if a relator had an adequate remedy at law, regardless of whether that remedy was sought. State ex rel. Brown v. Kr iclzbauna., 11th Dist. App. No. MA 44, 2011-Ohio- 2002, 1[4, citing State ex rel. Tran v. 111cGrath, 78 Ohio St.3d 45, 676 N.E.2d 108 (1997). Relator has already sought several appeals in his criminal case, specifically on February 23, 2001; January 14, 2004; March 25, 2004; and September 17, See Relator's Exhibit, pp (entries dated 2/23/2001; 1/14/2004; 3,25/2004; and 9/17/2008). An appeal is an adequate remedy at law and bars relief in mandamus. State ex rel. Gilligan v. Ohio Bd of'tax Appeals, 70 Ohio St.3d 196, 201, 638 N.E.2d 74 (1994). Because Relator has an adequate remedy at law, his request for manaamus is precluded. Accordingly, Relator's request for relief must fail. IV. CONCLUSION complaint. For the foregoing reasons, Respondent respectfully requests this Court dismiss Relator's Respectfully submitted, MICHAEL DEWINE ( ) Ohio Attorney General SARAH PIERCE ( ) *Counsel of Record DARLENE FAWKES PETTIT ( ) Assistant Attornevs General Constitutional Offices Section 30 East Broad Street, 16th Floor Columbus, Ohio Tel: (614) Fax: (614) sarah. pierce@ohioattorneygeneral. gov darlene.petti t@ohioattorneygeneral. gov Counsel for Respondent Ninth District Court of Appeals 5

7 CERTIFICATE OF SERVICE I hereby certify that a true and accurate copy of the foregoing Motion to Dismiss was filed with the Court and served by regular U.S. mail, postage prepaid, on December 23, 2013, to the following: RICHARD L. CURLEY, Mansfield Correctional Institution P.O. Box 8107 Mansfield, OH Pro se Relator SARAI-I PIERCE 08'7799) Assistant Attorney General 6