State ex rel. Berlingeri

2014 Ohio 406

Opinion

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100671

STATE OF OHIO, EX REL.

DOMINIC BERLINGERI

RELATOR

vs.

JUDGE BRIAN J. CORRIGAN

RESPONDENT

JUDGMENT:

WRIT DENIED

Writ of Procedendo

Motion No. 470804

Order No. 471571

RELEASE DATE: February 4, 2014

FOR RELATOR

Dominic Berlingeri, Jr. Inmate No. A 583-358 Allen Correctional Institution Attn: Unit C 2338 North West Street Lima, OH 45801

ATTORNEYS FOR RESPONDENT

Timothy J. McGinty Cuyahoga County Prosecutor BY: James E. Moss Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, OH 44113

SEAN C. GALLAGHER, J.:

{¶1} On November 26, 2013, relator Dominic Berlingeri commenced this procedendo action against Judge Brian Corrigan to compel him to rule on his petition to vacate allied offenses of similar import in State v. Berlingeri, Cuyahoga C.P. No. CR-527719-G, which was filed on March 29, 2013. On December 18, 2013, respondent judge filed a motion for summary judgment, which Berlingeri has not opposed. The motion for summary judgment is granted, and the petition is denied for the reasons that follow.

{¶2} Attached to the motion for summary judgment is a copy of a journal entry that indicates that on December 17, 2013, Judge Corrigan denied Berlingeri’s petition to vacate allied offenses of similar import, rendering the petition for a writ of procedendo moot. State ex rel. Gantt v. Coleman, 6 Ohio St.3d 5, 450 N.E.2d 1163 (1983); State ex rel. Jerninghan v. Cuyahoga Cty. Court of Common Pleas, 74 Ohio St.3d 278, 658 N.E.2d 723 (1996). Additionally, the petition does not comply with Loc.App.R. 45(B)(1)(a), which is a separate ground that warrants dismissal. State ex rel. Fuller v. Friedland, 8th Dist. Cuyahoga No. 76750, 1999 Ohio App. LEXIS 4856 (Oct. 14, 1999), citing State ex rel. Sherrills v. Court of Common Pleas, 8th Dist. Cuyahoga No. 69707 (Dec. 1, 1995) (“failure to provide this court with a supporting affidavit warrants dismissal”).

{¶3} Accordingly, we grant the respondent’s unopposed motion for summary judgment. Respondent to bear costs, but costs are waived. It is further ordered that the clerk shall serve upon all parties notice of this judgment and date of entry pursuant to Civ.R. 58(B).

{¶4} Writ denied.

SEAN C. GALLAGHER, JUDGE

MARY J. BOYLE, A.J., and KENNETH A. ROCCO, J., CONCUR