[Cite as Infante v. Astrab, 2011-Ohio-4264.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA



                            JOURNAL ENTRY AND OPINION
                                     No. 96763



                          STATE OF OHIO, EX REL.
                          ENGRACIO INFANTE, JR.
                                                           RELATOR

                                                 vs.

                        MICHAEL ASTRAB, JUDGE
                                                           RESPONDENT




                                          JUDGMENT:
                                          WRIT DENIED


                                          Writ of Mandamus
                                          Motion No.444719
                                          Order No. 447107


        RELEASE DATE:                    August 24, 2011
FOR RELATOR

Engracio Infante, Jr., pro se
Inmate No. 434-216
Lake Erie Correctional Institution
501 Thompson Road
Conneaut, Ohio 44030


ATTORNEYS FOR RESPONDENT

William D. Mason
Cuyahoga County Prosecutor
BY: James E. Moss
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




FRANK D. CELEBREZZE, JR., J.:

       {¶ 1} Relator, Engracio Infante, Jr., requests that this court issue a

writ of mandamus compelling respondent judge 1 to rule on the motion to

vacate void judgment and request for de novo sentencing hearing filed in

State v. Infante, Cuyahoga County Court of Common Pleas Case No.

CR-425246 on November 15, 2010.




         The original respondent was former judge Bridget McCafferty. In a prior entry, we
       1


recognized that Judge Michael Astrab succeeded her in office and instructed the clerk to substitute
Judge Michael Astrab as the respondent and to change the caption accordingly. See Civ.R. 25(D).
      {¶ 2} Respondent has filed a motion for summary judgment attached to

which is a copy of a journal entry issued by respondent and received for filing

by the clerk on May 11, 2011 in which respondent scheduled a hearing on

Infante’s motion for May 27, 2011.      A review of the docket in Case No.

CR-425246 reflects that, by entry received for filing by the clerk on June 30,

2011, respondent denied the motion to vacate void judgment in part, OSJ.

See Nicholson v. Nicholson, Cuyahoga App. No. 86861, 2005-Ohio-5431

(taking judicial notice of the docket in the underlying case to determine

mootness). Attached to the June 30, 2011 entry is a journal entry dated May

27, 2011 and filed on May 31, 2011. In that entry, respondent acknowledged

the filing of the motion to vacate void judgment and request for de novo

sentencing hearing.   Respondent held that Infante was not entitled to de

novo sentencing, but the court would impose postrelease control.

      {¶ 3} Infante has not opposed respondent’s motion for summary

judgment pending before this court. Respondent argues that this action is

moot. We agree.

      {¶ 4} Additionally, Loc.App.R. 45(B)(1)(a) provides, in part:        “All

complaints must contain the specific statements of fact upon which the claim

of illegality is based and must be supported by an affidavit from the plaintiff

or relator specifying the details of the claim.” Infante has not supported his

complaint with the affidavit required by Loc.App.R. 45(B)(1)(a), which
provides a basis for dismissal.     See Jordan v. Cuyahoga Cty. Court of

Common Pleas, Cuyahoga App. No. 96013, 2011-Ohio-1813.

      {¶ 5} “Relator also did not comply with R.C. 2969.25(C), which requires

that an inmate file a certified statement from his prison cashier setting forth

the balance in his private account for each of the preceding six months. This

also is sufficient reason to deny the mandamus, deny indigency status, and

assess costs against the relator. State ex rel. Pamer v. Collier, 108 Ohio St.3d

492, 2006-Ohio-1507, 844 N.E.2d 842, and State ex rel. Hunter v. Cuyahoga

Cty. Court of Common Pleas, 88 Ohio St.3d 176, 2000-Ohio-285, 724 N.E.2d

420.” Majid v. Sutula, Cuyahoga App. No. 97019, 2011-Ohio-3993, ¶5.

      {¶ 6} Accordingly, respondent’s motion for summary judgment is

granted.   Relator to pay costs.    The clerk is directed to serve upon the

parties notice of this judgment and its date of entry upon the journal. Civ.R.

58(B).

      Writ denied.



FRANK D. CELEBREZZE, JR., JUDGE

PATRICIA A. BLACKMON, P.J., and
MELODY J. STEWART, J., CONCUR
