[Cite as State ex rel. Sweeting v. Starr, 2014-Ohio-5505.]

STATE OF OHIO, NOBLE COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE ex rel. DEION SWEETING, ) 

 ) CASE NO. 14 NO 412 

 RELATOR, ) 

 ) OPINION

 - VS - ) AND

 ) JUDGMENT ENTRY

KAREN STARR, CLERK OF COURTS, ) 

et al., ) 

 ) 

 RESPONDENTS. ) 

CHARACTER OF PROCEEDINGS: Relator’s Petition for Writ of Mandamus; 

JUDGMENT: Petition for Writ of Mandamus Denied; 

 Respondents Granted Summary 

 Judgment. 

APPEARANCES: 

For Relator: Deion Sweeting, Pro se

 #667-557 

 Noble Correctional Institution 

 15708 McConnelsville Road 

 Caldwell, Ohio 43724 

For Respondents: Attorney Kelly Riddle 

 Noble County Prosecuting Attorney 

 408 North Street 

 Caldwell, Ohio 43724 

JUDGES: 

Hon. Joseph J. Vukovich 

Hon. Cheryl L. Waite 

Hon. Mary DeGenaro 

 Dated: December 8, 2014
[Cite as State ex rel. Sweeting v. Starr, 2014-Ohio-5505.]

PER CURIAM: 

¶{1} On February 26, 2014, Relator Deion Sweeting filed a petition for a writ 

of mandamus against Respondents Karen Starr, Clerk of Courts of Noble County, and 

former Noble County Prosecutor Clifford Sickler. The petition alleged that 

Respondents did not comply with their respective duties in R.C. 2935.09 and R.C. 

2935.10. In response, Respondent Starr filed an answer and motion to dismiss. 

03/21/14 Answer and Motion to Dismiss. In June, we issued a judgment entry 

indicating that the writ could not be granted at that time due to lack of supporting 

evidence. We also stated that the motion to dismiss could not be granted and that the 

allegations in the motion to dismiss were more appropriate for a motion for summary 

judgment. We then ordered the parties to file motions for summary judgment. 06/2/14 

J.E. 

¶{2} On October 30, 2014, Respondent Starr filed a motion for summary 

judgment with supporting memorandum and affidavit. As of this date, Relator has not 

responded to the motion. 

¶{3} Summary Judgment is governed by Civ.R. 56(C). That rule provides that 

the trial court shall render summary judgment if no genuine issue of material fact exists 

and when construing the evidence most strongly in favor of the nonmoving party, 

reasonable minds can only conclude that the moving party is entitled to judgment as a 

matter of law. State ex rel. Parsons v. Fleming, 68 Ohio St.3d 509, 511, 628 N.E.2d 

1377 (1994). 

¶{4} In our previous order we explained that a writ of mandamus can be used 

to compel a clerk of courts to comply with R.C. 2935.09. State ex rel. Boylen v. 

Harmon, 107 Ohio St.3d 370, 2006-Ohio-7, 839 N.E.2d 934, ¶ 11 (“[C]ourt of appeals 

did not err in holding that after the clerk accepts Boylen's affidavits for filing as required 

by R.C. 2935.09, subsequent proceedings will proceed pursuant to R.C. 2935.10. 

Accordingly, we affirm the judgment of the court of appeals.”). In this instance, Relator 

alleged in the petition that Respondent Starr failed to comply with R.C. 2935.09(D). 

That section provides a formal mechanism by which a private citizen can seek to have 

criminal charges brought against someone. Pursuant to that section, the private 

citizen is to file with the clerk of a court of record an affidavit charging the offense 
 - 2 -

committed. The clerk is then required to forward the affidavit to a reviewing official to 

review. 

¶{5} In the petition, Relator claims to have sent a document complying with 

R.C. 2935.09 to Respondent Starr in December 2013. A copy of that document was 

not attached to the complaint. 

¶{6} In her motion for summary judgment and in the accompanying affidavit, 

Respondent Starr avows that “she did not receive a complaint/petition/affidavit” from 

Relator “in December of 2013.” 

¶{7} Considering this averment and the fact that Relator has not responded to 

the motion for summary judgment, there is no genuine issue of material fact and 

Respondents are entitled to judgment as a matter of law. If no affidavit was sent to 

Respondent Starr she had no duty under R.C. 2935.09(D) to forward it to a reviewing 

official. Thus, she is entitled to the grant of summary judgment. Likewise, 

Respondent Sickler is also entitled to a grant of summary judgment. Respondent 

Sickler is alleged to be the reviewing official to whom Respondent Starr was mandated 

to forward the affidavit. If there was no affidavit filed, then no duty to review arose. 

¶{8} For those reasons, summary judgment is granted for Respondents and 

the petition for a writ of mandamus is denied. 

¶{9} Final Order. Clerk to serve notice as provided by the Civil Rules. Costs 

taxed against Relator. 

Vukovich, J., concurs. 

Waite, J., concurs. 

DeGenaro, P.J., concurs.