[Cite as Perry v. Sweeney, 2020-Ohio-119.]



             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                 MAHONING COUNTY

                                      MORRIS PERRY, SR.,

                                                Relator,

                                                    v.

  JUDGE MAUREEN A. SWEENEY, COMMON PLEAS COURT JUDGE,
                       Respondent.


                        OPINION AND JUDGMENT ENTRY
                                        Case No. 19 MA 0016


                                             Writ of Mandamus

                                         BEFORE:
                Cheryl L. Waite, Carol Ann Robb, David A. D’Apolito, Judges.



                                               JUDGMENT:
                                                Dismissed.


 Atty. Paul J. Gains, Mahoning County Prosecutor and Atty. Ralph M. Rivera, Assistant
 Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503,
 for Plaintiff-Appellee

 Morris Perry, Sr., Pro se, Inmate No. 195, Mahoning County Justice Center, 110 Fifth
 Avenue, Youngstown, Ohio 44503.


                                       Dated: January 9, 2020



 PER CURIAM.
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       {¶1}   Relator Morris Perry, Sr., proceeding on his own behalf, has filed this

original action for a writ of mandamus asking this Court to compel Respondent Judge

Maureen A. Sweeney of the Mahoning County Common Pleas Court to rule on certain

pretrial motions. These motions were also filed by Relator on his own behalf, although

he is represented by counsel, and involve a pending criminal case in which he is the

defendant. State v. Perry, Mahoning C.P. No. 2018 CR 00997. Counsel for Respondent

has filed a combined answer and motion to dismiss, highlighting procedural deficiencies

in Relator’s petition as well as arguing that it should fail on the substantive merits.

       {¶2}   The Mahoning County Grand Jury indicted Relator on one count of felony-

life rape. Although the case has a lengthy, complicated, and confusing procedural history,

it remains in the pretrial phase. This is due in large part to Relator’s dissatisfaction with

his first appointed trial counsel, his filing of pretrial motions on his own behalf while

represented by counsel, his unsuccessful attempt to have the trial court judge disqualified

from presiding over the case, and his successful bid to obtain new appointed trial counsel.

       {¶3}   Generally, a relator may file an original action seeking a writ of mandamus

or a writ of procedendo to compel a court to rule on a pending motion. A writ of mandamus

is an extraordinary remedy which should be exercised by this Court with caution and

issued only when the right is clear. State ex rel. Brown v. Ashtabula Cty. Bd. of Elections,

142 Ohio St.3d 370, 2014-Ohio-4022, 31 N.E.3d 596, ¶ 11. Entitlement to a writ of

mandamus requires the relator to demonstrate: (1) relator has a clear legal right to the

relief, (2) respondent has a clear legal duty to provide that relief, and (3) there is no other

adequate remedy at law. State ex rel. Taxpayers for Westerville Schools v. Franklin Cty.

Bd. of Elections, 133 Ohio St.3d 153, 2012-Ohio-4267, 976 N.E.2d 890, ¶ 12.




Case No. 19 MA 0016
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       {¶4}   The state argues that Relator’s petition contains three procedural

deficiencies, each of which emanate from R.C. 2969.21 et seq. which imposes certain

procedural requirements on civil actions or appeals brought by inmates. Following his

indictment, Relator was taken into custody and incarcerated in the county jail. While at

one point Relator was released after posting a $50,000.00 surety bond, it appears he

violated the conditions of that bond and has since been returned to the county jail.

Regardless whether Relator is jailed or has been released on bond while awaiting trial,

Relator does not fall within the definition of an “inmate.” An “ ‘inmate’ means a person

who is in actual confinement in a state correctional institution or in a county, multicounty,

municipal, municipal-county, or multicounty-municipal jail or workhouse or a releasee who

is serving a sanction in a violation sanction center.” R.C. 2969.21(D). Relator is not

presently serving a sanction and has not been convicted or sentenced at this time.

Therefore, a different set of procedural requirements apply to his petition.

       {¶5}   This Court is vested with jurisdiction to hear an original mandamus action

pursuant to Article IV, Section 3(B)(1) of the Ohio Constitution and R.C. 2731.02. There

are three specific requirements for the filing of an application for a writ of mandamus. The

application (1) must be by petition, (2) in the name of the state on the relation of the

person applying, and (3) verified by affidavit. R.C. 2731.04. Relator’s petition does not

meet the second and third requirements: it was not captioned in the name of the state on

the relation of the person applying and it was not verified by affidavit.

       {¶6}   By itself, Relator’s failure to verify his mandamus petition by affidavit, as

required by R.C. 2731.04, is not a fatal defect since the verification requirements

contained in R.C. 2731.04 have been displaced by Civ.R. 11. State ex rel. Madison v.




Case No. 19 MA 0016
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Cotner, 66 Ohio St.2d 448, 449, 423 N.E.2d 72 (1981); State ex rel. Clark v. Krichbaum,

7th Dist. Mahoning No. 07-MA-66, 2007-Ohio-3185, ¶ 10.

       {¶7}   However, Relator’s failure to caption his mandamus action in the name of

the state on the relation of the person applying is a different matter. If a respondent alerts

a relator of his or her failure to properly caption a mandamus action and the relator does

not seek leave to amend his or her complaint to comply with R.C. 2731.04, the mandamus

action must be dismissed. Blankenship v. Blackwell, 103 Ohio St.3d 567, 2004-Ohio-

5596, 817 N.E.2d 382, ¶ 36, citing Litigaide, Inc. v. Lakewood Police Dept. Custodian of

Records, 75 Ohio St.3d 508, 664 N.E.2d 521 (1996). Here, the state has alerted Relator

of his failure to properly caption his mandamus action by way of its combined answer and

motion to dismiss, albeit relying on the incorrect Ohio Revised Code section. Relator has

not responded to the combined answer and motion nor has he sought leave to amend his

complaint to comply with R.C. 2731.04. Therefore, Relator’s omission provides sufficient

grounds to dismiss this action. Blankenship, supra.

       {¶8}   Putting the procedural deficiencies of Relator’s petition aside, the petition

also fails on its merits, for two reasons. First, Relator has been represented by appointed

counsel at all times in the trial court proceedings. Although a criminal defendant has the

right to counsel or the right to act pro se, a defendant does not have any right to “hybrid

representation.” State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227,

paragraph one of the syllabus; State v. Thompson, 33 Ohio St.3d 1, 6-7, 514 N.E.2d 407

(1987). The right to counsel and the right to act pro se “are independent of each other

and may not be asserted simultaneously.” Martin at paragraph one of the syllabus.




Case No. 19 MA 0016
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      {¶9}   Accordingly, where “counsel represents a criminal defendant, a trial court

may not entertain a defendant’s pro se motion.” State v. Mongo, 8th Dist. Cuyahoga No.

100926, 2015-Ohio-1139, ¶ 13-15.       Accord State v. Smith, 4th Dist. Highland No.

09CA29, 2010-Ohio-4507, ¶ 100, State v. Davis, 10th Dist. Hamilton No. 05AP–5039,

2006-Ohio-193, ¶ 12; State v. Greenleaf, 11th Dist. Portage No. 2005-P-0017, 2006-

Ohio-4317, ¶ 70.

      {¶10} Second, a thorough review of the trial court docket demonstrates that his

appointed trial counsel has filed motions very similar to those which Relator has filed on

his own behalf. In each instance, the trial court has ruled on those motions, including a

few which Relator had filed on his behalf and were not duplicative of those filed by his

appointed trial counsel. Therefore, Relator’s original action for a writ of mandamus before

this Court is also moot. “Neither procedendo nor mandamus will compel the performance

of a duty that has already been performed.” Martin v. Judges of the Lucas Cty. Court of

Common Pleas, 50 Ohio St.3d 71, 72, 552 N.E.2d 906 (1990).

      {¶11} For all of the foregoing reasons, Respondent’s motion to dismiss is granted

and this case is dismissed.

      {¶12} Costs taxed against Relator. Final order. Clerk to serve copies of this

decision and judgment entry pursuant to the civil rules.



 JUDGE CHERYL L. WAITE


 JUDGE CAROL ANN ROBB


 JUDGE DAVID A. D’APOLITO




Case No. 19 MA 0016
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Case No. 19 MA 0016
