COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 65100 GEORGE A. LAGUTA : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION EDWARD M. WALSH, et al : : Defendant-appellees : : DATE OF ANNOUNCEMENT OF DECISION : JULY 13, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 243,512 JUDGMENT : AFFIRMED. : DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: GEORGE A. LAGUTA, pro se #A255357 P.O. Box 788 Mansfield, Ohio 44901 For defendant-appellee: JEFFREY I. SHERWIN Edward M. Walsh: Assistant County Prosecutor 8th Floor - Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellee JAMES J. McDONNELL James J. McDonnell: 936 Terminal Tower Cleveland, Ohio 44113 For defendant-appellee PAUL A. GRAU John T. Neforos: 5306 Transportation Blvd. Garfield Heights, Ohio 44125 - 2 - TERRENCE O'DONNELL, J.: Plaintiff-appellant, George Laguta, appearing pro se, appeals from the decision of the common pleas court dismissing his complaint for declaratory relief filed pursuant to Civ.R. 57. Appellant was convicted of felonious assault and rape after a jury trial in the Cuyahoga County Court of Common Pleas. These convictions were affirmed by this court in State v. Laguta (Sep. 16, 1993), Cuyahoga App. No. 63469, unreported, which decision was affirmed by the Ohio Supreme Court in State v. Laguta (1995), 72 Ohio St.3d 245. On December 4, 1992, appellant filed a complaint seeking a declaratory judgment that appellees, assistant prosecuting attorney Edward M. Walsh, criminal defense attorney James J. McDonnell, and Brecksville police Detective John T. Neforos, tampered with the evidence used to support his criminal conviction. The defendants each moved, pursuant to Civ. R. 12(B)(6), to dismiss the complaint asserting that a specific statutory remedy existed in R.C. 2953.21. On January 22, 1993, the trial court granted appellant's Civ. R. 12(B)(6) motion and dismissed the complaint as to all three defendants. Appellant now appeals, raising three assignments of error. - 3 - I. Appellant's first assignment of error contends: THE LOWER COURT ABUSED ITS DISCRETION WHEN IT FAILED TO ADJUDICATE A MATTER AS PRESCRIBED UNDER ART. I, SEC. 10, ART. I, SEC. 16, BY DISMISSING A MERITORIOUS CLAIM SEEKING DECLARATORY JUDGMENT UNDER CIVIL RULE 57, ON THE PREMISE THAT THE ACTION WAS PROPER PURSUANT TO ORC 2953.21 Appellant believes that the trial court abused its discretion in dismissing his complaint because declaratory relief is warranted in this case despite the existence of an alternative remedy under R.C. 2953.21. Appellees believe that the trial court cannot grant declaratory relief because a specific statutory remedy exists. The issue, then, for our review is whether or not the trial court erred in dismissing appellant's complaint seeking declaratory judgment. In Iris Sales Co. v. Voinovich (1975), 43 Ohio App.3d 18, this court held that: Although Rule 57 of the Ohio Rules of Civil Procedure permits declaratory relief where appropriate, even when another adequate remedy exists, declaratory relief should not be granted where a special statutory proceeding has been provided. See, also, State, ex rel. Albright v. Common Pleas Ct. (1991), 60 Ohio St.3d 40. Essentially, appellant is attempting to have his criminal conviction overturned by use of the declaratory judgment statute. However, a special statutory proceeding, post-conviction relief - 4 - pursuant to R.C. 2953.21, is available to appellant. That statute provides in relevant part that: (A) Any person convicted of a criminal offense or adjudged delinquent claiming that there was such a denial or infringement of his rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States, may file a petition at any time in the court which imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief. Appellant, who has an adequate remedy under R.C. 2953.21, may not now, according to Voinovich, supra, seek declaratory relief. Accordingly, we conclude that the trial court did not err in dismissing appellant's complaint. Appellant's first assignment of error has no merit. II. Appellant's second assignment of error contends: THE LOWER COURT ABUSED ITS DISCRETION WHEN IT FAILED TO ADJUDICATE A MATTER AS PRESCRIBED UNDER ART. I, SEC. 10, ART. I, SEC. 16, BY REFUSING TO RECUSE AFTER EVIDENCE WAS FILED SUBSTANTIATING THAT PREJUDICE/CONFLICT OF INTEREST EXISTED AND DISMISSED A MERITORIOUS ACTION WITHOUT LAWFUL AUTHORITY. Appellant believes that the trial court abused its discretion in exercising jurisdiction in this case. Appellant previously raised this argument before the Ohio Supreme Court at the time of filing an affidavit of prejudice against the trial judge. That - 5 - affidavit was denied by the Supreme Court on January 14, 1993, prior to the court's dismissal of this action. Since the trial court did not decide this case while the affidavit of prejudice was pending, appellant's objection is without merit. Therefore, we find that appellant's second assignment of error is not well taken. III. Appellant's third assignment of error contends: THE COURT ABUSED ITS DISCRETION WHEN IT FAILED TO ADJUDICATE A MATTER AS PRESCRIBED UNDER ART. I, SEC. 10, ART. I, SEC. 16, BY REFUSING A PRO SE LITIGANT ANY SUPPORTING SERVICES OR EXTENSIONS OF TIME TO PROPERLY ARTICULATE HIS GRIEVANCE IN A COURT OF LAW. Appellant argues that he was unconstitutionally denied access to the jail library and free copy service while attempting to prosecute this action. Appellees have not addressed these issues in their briefs. The issue for our resolution is whether or not appellant was unconstitutionally denied these services. In State, ex rel. Carter v. Schotten, (1994), 70 Ohio St.3d 89, the Ohio Supreme Court held that the lower court did not err in denying the defendant library services and copying costs where the defendant did not allege that the outcome of the case would have been different had the state provided those services. In this case appellants complaint for declaratory relief was dismissed on the legal basis that an adequate remedy existed under R.C. 2953.21. Appellant has not alleged or demonstrated that this outcome would - 6 - be different if he had been provided photocopy and library ser- vices. Therefore, we conclude that appellant has not demonstrated a violation of his constitutional rights. Appellant's third assignment of error is without merit. Judgment affirmed. - 7 - It is ordered that appellees recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DONALD C. NUGENT,* P.J., and JAMES M. PORTER, J. CONCUR JUDGE TERRENCE O'DONNELL *Judge Donald C. Nugent concurred in this opinion before resigning from this court. N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .