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Date: 05-24-2020
Case Style:
STATE EX REL. L’DDARYL ELLIS, v. CHRISTOPHER LAROSE, WARDEN ET AL.
Case Number: 19 MA 0057
Judge: PER CURIAM
JUDGE GENE DONOFRIO
JUDGE CHERYL L. WAITE
JUDGE DAVID A. D’APOLITO
Court: IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
Plaintiff's Attorney: Atty. David Yost, Ohio Attorney General, Atty. George Horvath, Assistant Attorney
General, 150 East Gary Street, 16th Floor, Columbus, Ohio 43215, and Atty. Timothy
Bojanowski, Struck, Love, Bojanowski & Acedo, P.L.C
Defendant's Attorney:
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Petitioner’s pleadings fail to comply with the civil litigation history
requirement found in section R.C. 2969.25(A):
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Case No. 19 MA 0057
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.
{¶4} Although Relator filed an affidavit containing a description of some of the
civil actions that he has filed, it fails to contain a description of each civil action or appeal
of a civil action that he has filed in the previous five years in any state or federal court, as
required by R.C. 2969.25(A). More specifically, he failed to include at least one case—
State v. Ellis, 8th Dist. Cuyahoga No. 101603, 2015-Ohio-1642. Even though Relator
acknowledges the case and others he failed to include in subsequent pleadings, the Ohio
Supreme Court has specifically held that a Relator’s “belated attempt to file the required
affidavit does not excuse his noncompliance.” Fuqua v. Williams, 100 Ohio St.3d 211,
2003-Ohio-5533, 797 N.E.2d 982; 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.” Therefore, Relator’s failure to include all of the required information
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Case No. 19 MA 0057
in his affidavit mandates the dismissal of this original action on that basis alone. Robinson
v. LaRose, 147 Ohio St.3d 473, 2016-Ohio-7647, 67 N.E.3d 765, ¶ 11.
Substantive Shortcomings – Adequate Remedy at Law; Res Judicata
{¶5} Turning to the substantive claim presented by Relator’s petition, a writ of
mandamus/procedendo is an extraordinary remedy; one 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/procedendo requires the relator to demonstrate:
(1) they have a clear legal right to the relief, (2) the respondent has a clear legal duty to
provide that relief, and (3) relator has no adequate remedy at law. State ex rel. Taxpayers
for Westerville Schools v. Franklin Cty. Bd. of Elections, 133 Ohio St.3d 153, 2012-Ohio4267, 976 N.E.2d 890, ¶ 12.
{¶6} The assessment of Relator’s claim begins with Eighth District Court of
Appeals decision of his direct appeal in State v. Ellis, 8th Dist. Cuyahoga No. 99803,
2014-Ohio-116, following his bench-trial conviction for murder, involuntary manslaughter,
two counts of felonious assault, and aggravated riot along with the each offense’s firearm
specification. The Court affirmed Relator’s convictions and sentences in all respects with
the exception of the aggravated riot conviction, which the Court vacated due to insufficient
evidence. The last paragraph of the Court’s decision states:
Judgment affirmed in part, reversed in part, and remanded to the trial
court to vacate Ellis's conviction for aggravated riot.
It is ordered that appellee and appellant share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this
judgment into execution. Case remanded to the trial court for actions
consistent with this opinion.
State v. Ellis, 8th Dist. Cuyahoga No. 99830, 2014-Ohio-116 (Ellis I), ¶ 63, cause
dismissed, 139 Ohio St.3d 1423, 2014-Ohio-2595, 10 N.E.3d 741, ¶ 63.
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Case No. 19 MA 0057
{¶7} The assessment of Relator’s claim also ends with two decisions from the
Eighth District Court of Appeals wherein that Court addressed Relator’s successive
claims of his entitlement to a resentencing hearing. In State v. Ellis, 8th Dist. Cuyahoga
No. 101603, 2015-Ohio-1642, the Court noted the trial court had merged all of Relator’s
convictions for purposes of sentencing, leaving his total sentence unchanged. Therefore,
the Court observed, Relator benefited from his acquittal on the aggravated riot conviction
in that he is left with one fewer conviction. Id. at ¶ 12. Therefore, the Court found the trial
court’s correction of Relator’s judgment entry of conviction and sentence pursuant to its
decision in Ellis I outside of Relator’s presence did not constitute error under those
circumstances. Id. The Court likened its mandate to the trial court in Ellis I as ministerial
in nature and did not require a resentencing hearing. Id. at ¶ 13.
{¶8} In State ex rel. Ellis v. Burnside, 8th Dist. Cuyahoga No. 103469, 2015-
Ohio-5432, wherein Relator re-presented the same “resentencing” claim he is presenting
here, the Court found Relator’s claim barred by the doctrine of res judicata, referring to
its own previous decision on the matter and reiterating:
It must also be noted that requiring Ellis to be conveyed to the trial
court would constitute a vain act because no resentencing was required.
State ex rel. Strothers v. Turner, 79 Ohio St.3d 272, 1997-Ohio-154, 680
N.E.2d 1238. The trial court was simply required to discharge a ministerial
act by vacating a conviction as ordered in State v. Ellis, 8th Dist. Cuyahoga
No. 99830, 2014-Ohio-116.
Outcome: In short, because Relator has already availed himself of an adequate
remedy in the ordinary course of law and the doctrine of res judicata precludes the claim
he is presently bringing before this Court, we find no basis upon which a writ could issue.
Accordingly, the Court sustains each Respondent’s respective motion to dismiss and
dismisses Relator’s original action seeking a writ of mandamus/procedendo. The Court
overrules as moot all pending and as-yet ruled upon pleadings Relator has filed on his
own behalf in this case subsequent to the filing of this original action.
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