State ex rel. Thompson v. Doherty

[Cite as State ex rel. Thompson v. Doherty, 2026-Ohio-3512.] IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY STATE OF OHIO ex rel. CASE NO. 2026-P-0032 MICHAEL THOMPSON, Relator, Original Action for Writ of Mandamus - vs - THE HONORABLE JUDGE BECKY L. DOHERTY, A JUDGE OF THE PORTAGE COUNTY COURT OF COMMON PLEAS, GENERAL DIVISION, Respondent. PER CURIAM OPINION AND JUDGMENT ENTRY Decided: September 8, 2026 Judgment: Petition dismissed Michael Thompson, pro se, PID# A814-272, North Central Correctional Institution, P.O. Box 1812, 670 Marion-Williamsport Road, East, Marion, OH 43301 (Relator). Connie J. Lewandowski, Portage County Prosecutor, and Timothy P. Bogner, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Respondent). PER CURIAM. {¶1} This matter is before the court on a petition for writ of mandamus filed by relator, Michael Thompson (“Thompson”) on April 27, 2026. Thompson has filed against respondent, Honorable Judge Becky L. Doherty (“Judge Doherty”) of the Portage County Court of Common Pleas. Thompson is seeking an order from his court instructing Judge Doherty to resentence Thompson in accordance with this court’s February 9, 2026 decision in State v. Thompson, 2026-Ohio-398 (11th Dist.).  {¶2} This court issued an alternative writ on May 29, 2026. In accordance with the alternative writ, Judge Doherty filed a motion to dismiss the petition on May 18, 2026. Judge Doherty asserts that Thompson has failed to comply with R.C. 2969.25 as he did not attach the required affidavit. Thompson filed a response to the motion to dismiss on June 22, 2026. On June 26, 2026, Thompson also filed a pro se document captioned “motion of indigence and transcript request for (all) trial court pre-trial where defendant was pro se.” {¶3} “Mandamus is a writ, issued in the name of the state to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.” R.C. 2731.01. To be entitled to a writ of mandamus, the relator must establish “(1) a clear legal right to the requested relief, (2) a clear legal duty on the part of [the respondent] to provide it, and (3) the lack of an adequate remedy in the ordinary course of the law.” State ex rel. Patterson v. Starn, 2026-Ohio-627, ¶ 11; accord State ex rel. Ware v. Fankhauser, 2023-Ohio-3939, ¶ 8 (11th Dist.), quoting State ex rel. Brown v. Logan, 2004-Ohio-6951, ¶ 4 (11th Dist.), citing State ex rel. Greene v. Enright, 63 Ohio St.3d 729 (1992). {¶4} Generally, “procedendo and mandamus will lie when a trial court has refused to render, or unduly delayed rendering, a judgment.” State ex rel. Reynolds v. Basinger, 2003-Ohio-3631, ¶ 5; accord State ex rel. Quinn v. Rastatter, 2026-Ohio-1208, ¶ 6 (“mandamus will lie in cases of a court’s undue delay in entering judgment”); State ex rel. Simmons v. Breaux, 2020-Ohio-3251, ¶ 16, citing State ex rel. Heck v. Kessler, 1995- Ohio-304, ¶ 11 (“[a] writ of mandamus ‘is an appropriate remedy to require a lower court to comply with an appellate court’s mandate directed to that court’”). PAGE 2 OF 6 Case No. 2026-P-0032  {¶5} For a court to grant a dismissal of a petition for writ of mandamus pursuant to Civ.R. 12(B)(6), “it must appear beyond doubt from the complaint that the relator can prove no set of facts warranting relief, after all factual allegations of the complaint are presumed true, and all reasonable inferences are made in the relator's favor.” State ex rel. Sands v. Culotta, 2021-Ohio-1137, ¶ 11, citing State ex rel. Natl. Elec. Contrs. Assn., Ohio Conference v. Ohio Bur. of Emp. Servs., 83 Ohio St.3d 179, 181 (1998). {¶6} We first address Thompson’s failure to comply with R.C. 2731.04, which provides: “[a]pplication for the writ of mandamus must be by petition, in the name of the state on the relation of the person applying, and verified by affidavit.” See Salemi v. Cleveland Metroparks, 2016-Ohio-1192, ¶ 11. Thompson has failed to caption his petition correctly. While Judge Doherty has filed a motion to dismiss on other grounds, she does not raise this error. “We note that a court may dismiss a petition for an extraordinary writ, sua sponte, when the petition is improperly captioned.” (Emphasis added.) Brody v. Lucci, 2012-Ohio-1132, ¶ 21 (11th Dist.), citing Hill v. Kelly, 2011-Ohio-6341, ¶ 4 (11th Dist.); see also Shoop v. State, 2015-Ohio-2068, ¶ 10. However, the failure to bring an action in the name of the state on the relation of the person applying for the writ is not a jurisdictional defect. Salemi at ¶ 15. Thus, we sua sponte correct the caption and address the merits of the petition. Id. at ¶ 13 (finding miscaptioning a waivable defense and noting that it is “common practice when parties fail to raise the issue simply to correct the error before publication”). {¶7} We next consider Thompson’s compliance with the requirements in R.C. 2969.25. The Supreme Court of Ohio recently explained R.C. 2969.25(A) applies to civil actions and appeals filed by an inmate against a government entity or employee and PAGE 3 OF 6 Case No. 2026-P-0032  requires the inmates to file, along with the complaint, “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 must identify, among other things, “[t]he name of each party” to each civil action. R.C. 2969.25(A)(3). R.C. 2969.25 is mandatory and requires strict compliance. State ex rel. Swanson v. Ohio Dept. of Rehab. & Corr., 2019- Ohio-1271, ¶ 6. An affidavit that fails to include each party to each prior civil action as required by R.C. 2969.25(A)(3) is therefore fatally deficient. See, e.g., State ex rel. Parker Bey v. Bur. of Sentence Computation, 2022-Ohio-236, ¶ 14 (dismissal required when affidavit had “failed to identify the opposing party in four of the five listed cases” and “failed to list the outcomes for any of the cases”); State ex rel. Parker v. Ohio Adult Parole Auth., 2023-Ohio-2558, ¶ 13 (10th Dist.) (“Merely listing some parties (e.g., those mentioned in the case caption) does not constitute strict compliance with [R.C. 2969.25(A)(3)].”). A court may sua sponte dismiss an action for noncompliance with R.C. 2969.25(A). See Parker Bey at ¶ 19. State ex rel. Bates v. Copley, 2026-Ohio-1270, ¶ 5-6. R.C. 2969.25 applies to mandamus actions. See id. Thompson did not file an affidavit as required, and such defect is fatal. Dismissal is therefore appropriate. Id. at ¶ 11. {¶8} We further note that the basis of Thompson’s petition is that Judge Doherty has not resentenced him in accordance with this court’s February 9, 2026 decision in Thompson, 2026-Ohio-398 (11th Dist.). The State of Ohio filed a notice of appeal and memorandum in support of jurisdiction in the Supreme Court of Ohio on March 12, 2026. The Supreme Court accepted the State’s appeal on June 3, 2026. 06/03/2026 Case Announcements, 2026-Ohio-2031. Counsel was appointed for appellant on July 8, 2026. {¶9} “An appeal is perfected upon the filing of a written notice of appeal.” State v. Washington, 2013-Ohio-4982, ¶ 8, quoting In re S.J., 2005-Ohio-3215, ¶ 9, citing R.C. 2505.04. “Once a case has been appealed, the trial court loses jurisdiction except to take action in aid of the appeal.” Id. citing State ex rel. Special Prosecutors v. Judges, Court PAGE 4 OF 6 Case No. 2026-P-0032 of Common Pleas, 55 Ohio St.2d 94, 97 (1978). Once the State files its notice of appeal, a trial court is divested of jurisdiction and cannot resentence a defendant. Id. {¶10} Thompson’s writ is fatally defective as he failed to comply with the requirements of R.C. 2969.25(A). Judge Doherty’s motion to dismiss is granted, and Thompson’s petition for writ of mandamus is dismissed. All other pending motions are overruled as moot. EUGENE A. LUCCI, J., ROBERT J. PATTON, J., SCOTT LYNCH, J., concur. PAGE 5 OF 6 Case No. 2026-P-0032  JUDGMENT ENTRY For the reasons stated in the per curiam opinion of this court, it is hereby ordered that respondent’s motion to dismiss is granted, and relator’s petition for writ of mandamus is dismissed. All other pending motions are overruled as moot. Costs to be taxed against relator. JUDGE EUGENE A. LUCCI, concurs JUDGE ROBERT J. PATTON, concurs JUDGE SCOTT LYNCH, concurs THIS DOCUMENT CONSTITUTES A FINAL JUDGMENT ENTRY A certified copy of this opinion and judgment entry shall constitute the mandate pursuant to Rule 27 of the Ohio Rules of Appellate Procedure. PAGE 6 OF 6 Case No. 2026-P-0032