State ex rel. Atwater v. Gall

2014 Ohio 3928

• Court: Ohio Court of Appeals
• Decided: September 9, 2014
• Docket: 101483
• Status: Published

Opinion

[Cite as State ex rel. Atwater v. Gall, 2014-Ohio-3928.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 101483

STATE OF OHIO, EX REL. JOSEPH ATWATER

RELATOR

vs.

STEVEN E. GALL, JUDGE, COURT OF COMMON PLEAS RESPONDENT

JUDGMENT: WRIT DENIED

Writ of Procedendo Motion No. 476119 Order No. 477481

RELEASE DATE: September 9, 2014 FOR RELATOR

Joseph Atwater, pro se R.C.I., No. 420-399 P.O. Box 8107 Mansfield, Ohio 44901

ATTORNEYS FOR RESPONDENT

Timothy J. McGinty Cuyahoga County Prosecutor BY: James E. Moss Assistant County Prosecutor 9th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 MARY J. BOYLE, A.J.:

{¶1} On June 4, 2014, the relator, Joseph Atwater, commenced this procedendo

action to compel a ruling on his motion to merge allied offenses, which he filed on

November 4, 2013, in the underlying case, State v. Atwater, Cuyahoga C.P. No.

CR-01-409121-ZA.1 On June 25, 2014, the respondent moved for summary judgment

on the grounds of mootness. Attached to the respondent’s dispositive motion was a copy

of a certified November 11, 2013 journal entry in which the respondent denied the motion

to merge allied offenses. On July 25, 2014, Atwater filed a brief in opposition.

Atwater argues that the motion for summary judgment is invalid because Judge Timothy

McGinty was the originally assigned judge and presided over the case, and Atwater now

refuses to waive any potential conflict of interest.2 Atwater also argues that the state

received extensions of time to respond to his motion after November 11, 2013; therefore,

the journal entry cannot be binding. Atwater also seeks to cure various filing defects,

such as including a prison cashier’s affidavit and Loc.R. 45 affidavit. Nevertheless, the

November 11, 2013 journal entry establishes that the respondent proceeded to judgment

on the subject motion, and this matter is moot.

1 Atwater named Judge Daniel Gaul as the respondent. However, Judge Steven Gall is the judge assigned to the underlying case. Accordingly, this court substitutes Judge Steven Gall as the respondent.

2 In October 2001, Atwater pleaded guilty to involuntary manslaughter with a three-year firearm specification and attempted murder. The court imposed a 20-year sentence. Timothy McGinty is now the Cuyahoga County prosecutor. {¶2} Accordingly, this court grants the respondent’s motion for summary

judgment and denies the application for a writ of procedendo. Relator to pay costs.

This court directs the clerk of courts to serve all parties notice of this judgment and its

date of entry upon the journal as required by Civ.R. 58(B).

{¶3} Writ denied.

_____________________________________________ MARY J. BOYLE, ADMINISTRATIVE JUDGE

FRANK D. CELEBREZZE, JR., J., and SEAN C. GALLAGHER, J., CONCUR