[Cite as Henderson v. State,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 97042

PAUL S. HENDERSON, ET AL. RELATORS

vs.

STATE OF OHIO RESPONDENT

JUDGMENT: COMPLAINT DISMISSED

Writ of Mandamus Motion No. 446380 Order No. 448501

RELEASE DATE: October 28, 2011 FOR RELATORS

Paul S. Henderson Inmate No. 573-468 Marion Correctional Institution P.O. Box 57 Marion, Ohio 43301-0057

ATTORNEYS FOR RESPONDENT

William D. Mason Cuyahoga County Prosecutor By: Diane Smilanick Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113

ALSO LISTED

Patricia L. Casey Inmate No. 80099 1479 Collins Avenue Marysville, Ohio 43040 MARY EILEEN KILBANE, A.J.:

{¶ 1} Relator, Paul S. Henderson, is the defendant in State v. Henderson,

Cuyahoga Cty. Court of Common Pleas Case Nos. CR-520709 and CR-530899.

Henderson avers in the body of his complaint that the prosecuting attorney is “removing

money” from Henderson’s prison account. Complaint, ¶3. He requests that this court

issue a writ of mandamus to prevent the prosecuting attorney from removing funds from

Henderson’s prison account and to return to him funds that have already been removed.

{¶ 2} Henderson also makes the same claim and requests the same relief on

behalf of Patricia L. Casey, whom he avers is in custody at the Ohio Reformatory for

Women in Marysville. Casey has not signed the complaint or any of the other filings

purportedly made on her behalf.

{¶ 3} In Traywick v. Fuerst, Cuyahoga App. No. 96357,

,

Benjamin J. Wherry signed the complaint in an original action in this court on behalf of

the relator, Taheim Traywick. “Wherry’s attempt to commence this action on

Traywick’s behalf constitutes the unauthorized practice of law. Wherry concedes that he

is not admitted to practice law and he has not provided any other basis for exemption

from the requirements of R.C. Chapter 4705 and Gov.Bar.R XII. As a consequence, we

dismiss this action.” Id. ¶2.

{¶ 4} In this action, Henderson does not provide this court with any basis for

concluding that he is admitted to the practice of law. As a consequence, we must dismiss

this action with respect to the claim asserted on behalf of Casey. {¶ 5} The complaint is also defective. Henderson has titled this action as

“Henderson v. State.” As noted above, however, in the body of the complaint he

requests that this court grant relief against the prosecuting attorney. Henderson has not,

therefore, identified the respondent in the caption. “Without properly identifying the

respondent it is impossible to determine whether or not there are rights and duties

enforceable in mandamus. This court has held that this deficiency alone also warrants

dismissal.” State ex rel. Sherrills v. State (Aug. 3, 2000), Cuyahoga App. No. 78261, at

1 (citations deleted), affirmed by State ex rel. Sherrills v. State,

,

,

. (“As the court of appeals held, Sherrills’s complaint is

defective because he failed to name the proper respondents and did not include their

addresses.” ¶1, citations deleted).

{¶ 6} Likewise, in this action, Henderson has not included the address of

respondent in the caption as required by Civ.R. 10(A). Additionally, the action is not on

relation of the state as required for an action in mandamus by R.C. 2731.04, which may

also be a ground for dismissal. Clarke v. McFaul, Cuyahoga App. No. 89447,

.

{¶ 7} Although Henderson failed to name the proper respondent in the caption,

we will dispose of this action on the merits of his claim that he is entitled to relief in

mandamus against the prosecuting attorney.

{¶ 8} Henderson and Casey have filed a motion for summary judgment.

Respondent has filed a motion to dismiss. For the reasons stated below, we grant the motion to dismiss Henderson’s claim for relief in mandamus and deny relators’ motion

for summary judgment.

{¶ 9} Henderson contends that respondent lacks the authority to collect court

costs from Henderson’s prison account. In both of the underlying cases, the trial court

determined that Henderson was indigent and appointed counsel. He has also filed an

affidavit of indigency in this action.

{¶ 10} In Collins v. State, Cuyahoga App. No. 97111,

, the relator

requested this court to issue a writ of mandamus compelling the prosecuting attorney to

stop removing funds from his prison account. Collins argued that the United States

District Court had determined that the removal of funds without a garnishment hearing

was unconstitutional. Henderson relies on Clay v. Fisher (S.D.Ohio 1984),

(followed in Hutchinson v. Cox (S.D.Ohio 1992),

), the same

authorities cited by Collins. “* * * [B]oth Clay and Hutchinson arose from efforts to

collect judgments in civil actions. This action, however, arises from collection of court

costs resulting from a criminal conviction. We hold, therefore, that the district court’s

decisions in Clay and Hutchinson are not controlling in this action.” Collins, ¶6.

(Emphasis in original.)

{¶ 11} In Collins, we then examined the authorities: requiring the trial court to

include the costs of prosecution in the sentencing entry, R.C. 2947.23(A)(1); authorizing

the clerk to attempt the collection of court costs assessed against an indigent defendant,

State v. White,

,

,

; and authorizing the department of rehabilitation and correction to apply funds in a prisoner’s account to a

court judgment without proceedings in aid of execution, R.C. 5120.133(A).

{¶ 12} We concluded in Collins that the relator did not have a clear legal right to

relief and that the prosecuting attorney did “not have a clear legal duty to stop notifying

the department of rehabilitation and correction of an outstanding obligation to pay court

costs.” Collins, ¶11. We also noted that a defendant in a criminal case may request at

sentencing that the trial court waive payment of costs. If the motion to waive costs is

denied, the defendant has an adequate remedy by way of appeal. See State v. Holloman,

Cuyahoga App. No. 95896,

; State ex rel. Pless v. McMonagle

(2000),

,

.

{¶ 13} Henderson requests the same relief as Collins did and asserts the same

rationale. In light of our holding in Collins, therefore, we hold that Henderson has failed

to state a claim in mandamus upon which relief can be granted.

{¶ 14} Accordingly, we deny relators’ motion for summary judgment and grant

respondent’s motion to dismiss. Relators 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).

Complaint dismissed.

MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE

KENNETH A. ROCCO, J., and KATHLEEN ANN KEOUGH, J., CONCUR