Ohio Cases May 01, 2019: Spann v. Calabrese

Case Description

JOURNAL ENTRY AND OPINION

JUDGMENT: WRIT DENIED

Writ of Mandamus
Motion No. 527031
Order No. 527455

Appearances:

Albert Spann, pro se, relator .

Michael C. O'Malley, Prosecuting Attorney, and James E. Moss, Assistant Prosecuting Attorney, for respondent .

PATRICIA ANN BLACKMON, P.J.:

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{¶ 1} Albert Spann has filed a complaint for a writ of mandamus. Spann seeks an order from this court that requires Judge Deena R. Calabrese to render a ruling with regard to a motion to withdraw a plea of guilty filed in State v . Spann , Cuyahoga C.P. No. CR-08-513194. For the following reasons, we grant Judge Calabrese's motion for summary judgment.

{¶ 2} Attached to Judge Calabrese's motion for summary judgment is a copy of a judgment entry, journalized on March 27, 2019, which demonstrates that Spann's motion to withdraw a plea of guilty was denied. Spann's complaint is moot because mandamus will not issue to compel the performance of a duty that has already been performed. State ex rel . Clay v . Gee , 138 Ohio St.3d 151, 2014-Ohio-48, 4 N.E.3d 1026; State ex rel . Fontanella v . Kontos , 117 Ohio St.3d 514, 2008-Ohio-1431, 885 N.E.2d 220.

{¶ 3} Furthermore, we find that the complaint is defective because it is improperly captioned. Spann styled this action as " Albert Spann v . Judge Deena Calabreese [sic]." Pursuant to R.C. 2731.04, a complaint for a writ of mandamus must be brought in the name of the state on relation of the person applying for the requested action. Rust v . Lucas Cty . Bd . of Elections , 108 Ohio St.3d 139, 2005-Ohio-5795, 841 N.E.2d 766; State ex rel . Simms v . Sutula , 81 Ohio St.3d 110, 689 N.E.2d 564 (1998); Maloney v . Court of Common Pleas of Allen Cty ., 173 Ohio St. 226, 181 N.E.2d 270 (1962). Spann has also failed to comply with Civ.R. 10(A), which requires that the

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complaint must include the addresses of all parties. Bandy v . Villanueva , 8th Dist. Cuyahoga No. 96866, 2011-Ohio-4831.

{¶ 4} Accordingly, we grant Judge Calabrese's motion for summary judgment. Costs to Spann; costs waived. The court directs the clerk of courts to serve all parties with notice of this judgment and the date of entry upon the journal as required by Civ.R. 58(B).

{¶ 5} Writ denied.

/s/ _________
PATRICIA ANN BLACKMON, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., and
EILEEN A. GALLAGHER, J., CONCUR