State ex rel. McGlown v. MohrState ex rel. McGlown v. Mohr
Rendered on April 23, 2015
Christopher A. McGlown, Sr., pro se.
Michael DeWine, Attorney General, and Gene D. Park, for respondents.
IN MANDAMUS
ON OBJECTION TO THE MAGISTRATE‘S DECISION
BRUNNER, J.
{¶ 1} Relator, Christopher A. McGlown, Sr., an inmate of the Allen Oakwood Correctional Institution, has filed this original action for a writ of mandamus against respondents Gary C. Mohr, director of the Ohio Department of Rehabilitation and Correction (“DRC“), and Melissa Adams, chief of the Bureau of Sentence Computation for DRC. The complaint seeks recalculation of relator‘s end of sentence date to include time served between October 27, 2007 and July 6, 2008 under
{¶ 2} Pursuant to
{¶ 4} In State v. McGlown, 6th Dist. No. L-13-1033, 2014-Ohio-1139, relator unsuccessfully appealed the denial of his motion to modify his sentences on forgery and tampering with records convictions.
{¶ 5} Previously, he had appealed the denial of his motion to correct an “illegal sentence.” The Sixth District affirmed the trial court‘s judgment in State v. McGlown, 6th Dist. No. L-12-1053, 2013-Ohio-1479.
{¶ 6} In his objection to the magistrate‘s decision, relator insists that these appeals were not of civil actions and, therefore, were not required by the statute to be included in the affidavit. The established law, however, is to the contrary. “A postconviction proceeding is not an appeal of a criminal conviction, but, rather, a collateral civil attack on the judgment.” State v. Steffen, 70 Ohio St.3d 399, 410 (1994). Accord State v. Reynolds, 79 Ohio St.3d 158 (1997), syllabus (“Where a criminal defendant, subsequent to his or her direct appeal, files a motion seeking vacation or correction of his or her sentence on the basis that his or her constitutional rights have been violated, such a motion is a petition for postconviction relief as defined in
{¶ 7} Relator further argues that the statute is directed at inmates, most of whom have a limited education and would not know what is included in the scope of “a civil action.” “It is a fundamental legal principal that ignorance of the law is no excuse.” Joe & Mary‘s Inc. v. Ohio Liquor Control Comm., 10th Dist. No. 02AP-1173, 2003-Ohio-3643, ¶ 29. ” ‘To hold that those who know about such rules or regulations are bound and those who do not know are not bound would make for a most unjust administration of law.’ ” Id., quoting State ex rel. Bd. of Edn. of N. Canton Exempted Village School Dist. v. Holt, 174 Ohio St. 55, 57 (1962).
{¶ 9} Because the requirements of
{¶ 10} Under
{¶ 11} For the reasons stated above, we overrule relator‘s objection to the magistrate‘s decision and this action is hereby dismissed.
Objection overruled; action dismissed.
BROWN, P.J., and TYACK, J., concur.
Rendered on August 21, 2014
Christopher A. McGlown, Sr., pro se.
Michael DeWine, Attorney General, and Gene D. Park, for respondents.
IN MANDAMUS
ON RESPONDENTS’ MOTION TO DISMISS
{¶ 12} Relator, Christopher A. McGlown, Sr., has filed this original action requesting that this court issue a writ of mandamus ordering respondent Gary C. Mohr, Director of the Ohio Department of Rehabilitation and Correction (“ODRC“) and Melissa Adams, Chief of the Ohio Bureau of Sentence Computation, a division of ODRC, to credit him with 368 days of jail-time credit.
{¶ 13} 1. Relator is an inmate currently incarcerated at Allen Oakwood Correctional Institution.
{¶ 14} 2. On June 16, 2014, relator filed this complaint seeking a writ of mandamus ordering respondents to credit him with 368 days of jail-time credit.
{¶ 15} 3. With his complaint, relator filed the documentation required under
{¶ 16} 4. With his complaint, relator also filed a document purporting to be an
{¶ 17} 5. On July 16, 2014, respondents filed a motion to dismiss asserting that relator‘s affidavit of prior actions did not meet the requirements of
{¶ 18} 6. Relator has not responded to respondents’ motion to dismiss, and the matter is currently before the magistrate.
Conclusions of Law:
{¶ 19} It is this magistrate‘s decision that this court should grant respondents’ motion to dismiss.
{¶ 20} A motion to dismiss for failure to state a claim upon which relief can be granted is procedural and tests the sufficiency of the complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545 (1992). In reviewing the complaint, the court must take all the material allegations as admitted and construe all reasonable inferences in favor of the nonmoving party. Id.
{¶ 21} In order for a court to dismiss a complaint for failure to state a claim upon which relief can be granted, it must appear beyond doubt from the complaint that relator can prove no set of facts entitling him to recovery. O‘Brien v. Univ. Community Tenants Union, 42 Ohio St.2d 242 (1975). As such, a complaint for writ of mandamus is not subject to dismissal under
{¶ 22} For the following reasons, respondents’ motion should be granted and relator‘s complaint should be dismissed.
{¶ 23}
At the time that an inmate commences a civil action or appeal against a government entity or employee, the inmate shall file with the court an affidavit that contains a description of each civil action or appeal of a civil action that the inmate has filed in the previous five years in any state or federal court. The affidavit shall include all of the following for each of those civil actions or appeals:
(1) A brief description of the nature of the civil action or appeal;
(2) The case name, case number, and the court in which the civil action or appeal was brought;
(3) The name of each party to the civil action or appeal;
(4) The outcome of the civil action or appeal, including whether the court dismissed the civil action or appeal as frivolous or malicious under state or federal law or rule of court, whether the court made an award against the inmate or the inmate‘s counsel of record for frivolous conduct under section 2323.51 of the Revised Code, another statute, or a rule of court, and, if the court so dismissed the action or appeal or made an award of that nature, the date of the final order affirming the dismissal or award.
{¶ 24} After performing a search on Westlaw, the magistrate confirmed that relator filed an incomplete
{¶ 26} Fuqua‘s prison warden moved to dismiss the petition.
{¶ 27} Fuqua requested leave in the Allen County Court of Appeals to amend the petition with the affidavit required by
{¶ 28} The Allen County Court of Appeals dismissed the petition for habeas corpus, and Fuqua appealed as of right to the Supreme Court of Ohio. The Supreme Court, in Fuqua, at ¶ 9, states:
Fuqua‘s belated attempt to file the required affidavit does not excuse his noncompliance. See
R.C. 2969.25(A) , which requires that the affidavit be filed “[a]t the time that an inmate commences a civil action or appeal against a government entity or employee.” (Emphasis added.)
{¶ 29} In Hawkins v. S. Ohio Correctional Facility, 102 Ohio St.3d 299, 2004-Ohio-2893, an inmate, Jomo Hawkins, filed a petition for a writ of habeas corpus in the Scioto County Court of Appeals. However, Hawkins’ petition did not contain the
{¶ 30} Following dismissal of his action, Hawkins appealed as of right to the Supreme Court of Ohio. Citing Fuqua, the Hawkins court affirmed the judgment of the Scioto County Court of Appeals.
{¶ 31} Here, relator failed to satisfy the requirement of
/S/ MAGISTRATE
STEPHANIE BISCA BROOKS