State v. RussellState v. Russell
PER CURIAM:
{¶ 1} This matter is before the court on James A. Russell’s petition for a writ of mandamus. Russell seeks a writ prohibiting the Montgomery County Clerks Office and the Lebanon Correctional Institution Collection Designee from collecting restitution and court costs associated with Russell’s criminal case, 04-CR-3840/2, in the amount of $19,847.12. Russell further asks that this Court suspend any withdrawal of funds from his inmate account with respect to the restitution and court costs pending his appeal in Montgomery App. No. 23454.
{¶ 2} We note that Russell’s conviction and sentence were reversed and remanded to the trial court on October 1, 2010. See State v. Russell, Montgomery App. No. 23454, 2010-Ohio-4765. In relevant part, this Court found there to be no evidence in the underlying trial record of Russell’s present and future ability to pay restitution in the amount of $15,498.25. Id. at ¶63-64. Therefore, we vacated the trial court’s restitution order. Id. at ¶65. Any argument herein raised with respect to the restitution order appears to be moot.
{¶ 3} On October 1, 2010, Respondents filed a motion to dismiss the present action in mandamus on the grounds that (1) Russell failed to provide an affidavit of indigence pursuant to
{¶ 4} Having received no response from Russell to Respondents’ motion to dismiss, this Court ordered him on October 26, 2010 to show cause why the present action should not be dismissed on the grounds set forth by Respondents and/or for failure to prosecute. Russell thereafter filed a “Motion in Contra to Prosecutions Motion to Dismiss” on November 3, 2010. Therein, Russell argues that he is entitled to an order vacating the court costs that were assessed against him in connection with his underlying criminal case because the trial court did not determine the specific amount, $4348.87, at the time of sentencing.
{¶ 5} Upon consideration of the foregoing, this Court finds Respondents’ motion to dismiss well-taken.
{¶ 7} “(C) If an inmate who files a civil action or appeal against a government entity or employee seeks a waiver of the prepayment of the full filing fees assessed by the court in which the action or appeal is filed, the inmate shall file with the complaint or notice of appeal an affidavit that the inmate is seeking a waiver of the prepayment of the court‘s full filing fees and an affidavit of indigency. The affidavit of waiver and the affidavit of indigency shall contain all of the following:
{¶ 8} “(1) A statement that sets forth the balance in the inmate account of the inmate for each of the preceding six months, as certified by the institutional cashier;
{¶ 9} “(2) A statement that sets forth all other cash and things of value owned by the inmate at that time.”
{¶ 10} The Supreme Court of Ohio has held that “ ‘[t]he requirements of
{¶ 11} Next, Respondents contend that Russell’s petition must be dismissed because he has failed to comply with
{¶ 12} Leave shall be granted, however, to amend a complaint so as to comply with
{¶ 13} Finally, Respondents claim that Russell had an adequate legal remedy by way of appeal to challenge his court costs. It is well-settled that a writ of mandamus is an extraordinary remedy that only applies in a limited set of circumstances. In re State ex rel. Watkins, Greene App. No. 07-CA-80, 2008-Ohio-3877, at ¶6, quoting Davenport v. Montgomery Cty., Montgomery App. No. 21196, 2006-Ohio-2909, at ¶4. To be entitled to the requested writ of mandamus, Russell must establish a clear legal right to the relief he is seeking, a clear legal duty on the part of Respondents to perform as requested, and the lack of an adequate remedy in the ordinary course of law. State ex rel. Blandin v. Beck, 114 Ohio St.3d 455, 2007-Ohio-4562, at ¶13.
{¶ 14} Russell argues that the trial court had a duty to orally notify him at his sentencing hearing that it was imposing court costs against him in the specific amount of $4348.87. In the underlying matter, the court included an assessment of unspecified costs in its May 4, 2009 sentencing entry. According to Russell, because he was
{¶ 15}
{¶ 16} “Pursuant to
{¶ 17} Russell’s legal remedy to challenge the court’s imposition of court costs was by direct appeal of his sentencing entry. Threatt, supra. See, also, State ex rel. Biros v. Logan, Trumbull App. No. 2003-T-0016, at ¶10 (finding that res judicata bars relator from collaterally attacking an order imposing court costs in a mandamus action). Likewise, insofar as Russell claims that the trial court did not orally impose court costs at his sentencing hearing, Russell’s adequate legal remedy was to challenge this alleged error on direct appeal. That Russell failed to seek this relief in the ordinary course of law does not render such remedy inadequate. See State ex rel. Atkins v. Hoover, 97 Ohio St.3d 76, 2002-Ohio-5313, at ¶5.
{¶ 18} In conclusion, this Court finds that Russell has not demonstrated a sufficient basis to justify extraordinary relief. Accordingly, Respondents’ motion to dismiss is hereby
{¶ 19} We note that the Ohio Attorney General filed a “Limited Notice of Appearance of Counsel” on November 1, 2010. Russell moved to strike said notice, to which the Attorney General filed a memorandum in opposition on November 24, 2010. Russell’s motion to strike is hereby OVERRULED.
SO ORDERED.
THOMAS J. GRADY, Presiding Judge
JAMES A. BROGAN, Judge
MIKE FAIN, Judge
To the Clerk: Pursuant to
THOMAS J. GRADY, Presiding Judge
Copies to:
Petitioner, Pro Se
P.O. Box 56
Lebanon, Ohio 45036
Carley J. Ingram
Attorney for Respondents
301 W. Third Street, 5th Floor
Dayton, Ohio 45422