State ex rel. Long v. Culotta

2019 Ohio 2515

Opinion

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO

STATE OF OHIO ex rel. : PER CURIAM OPINION STACEY R. LONG, :

Relator, CASE NO. 2019-L-039 :

- vs -

:

VINCENT A. CULOTTA, JUDGE, :

Respondent.

Original Action for Writ of Procedendo. Judgment: Petition dismissed.

Stacey R. Long, pro se, PID: A644-513, Lake Erie Correctional Institution, P.O. Box 8000, 501 Thompson Road, Conneaut, OH 44030 (Relator).

Charles E. Coulson, Lake County Prosecutor, and Michael L. DeLeone, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Respondent).

PER CURIAM.

{¶1} Respondent, Vincent A. Culotta, Judge of the Lake County Court of Common Pleas, moves to dismiss relator, Stacey R. Long’s, petition for a writ of procedendo as moot. Relator has not responded. For the reasons that follow, the petition is dismissed as moot.

{¶2} Under his sole claim, relator seeks a writ compelling respondent to render a decision on relator’s “motion for leave to file delayed motion for new trial” in an

2

underlying criminal case. Shortly after requesting the writ, respondent issued a judgment disposing of the motion and ruling upon all other pending motions. A certified copy of the judgment entry and docket reflecting the judgment is before this court.

{¶3} A writ of procedendo is an order from a court of superior jurisdiction to a court of inferior jurisdiction to proceed to judgment. State ex rel. Utley v. Abruzzo, 17 Ohio St.3d 203, 204 (1985). A writ of procedendo is proper when a court has refused to enter judgment or has unnecessarily delayed proceeding to judgment. State ex rel. Crandall, Pheils & Wisniewski v. DeCessna, 73 Ohio St.3d 180, 184 (1995).

{¶4} “[P]rocedendo will not issue to compel the performance of a duty that has already been performed.” State ex rel. Clay v. Gee, 138 Ohio St.3d 151, 2014-Ohio-48, ¶5; State ex rel. Kreps v. Christiansen, 88 Ohio St.3d 313, 318 (2000). We further note that the writ “does not in any case attempt to control the inferior court as to what that judgment should be.” State ex rel. Davey v. Owen, 133 Ohio St. 96, 106 (1937); State ex rel. Levin v. Sheffield Lake, 70 Ohio St.3d 104, 106 (1994) (procedendo “never attempts to control how the inferior court rules”).

{¶5} “Mootness is a basis for dismissing a procedendo petition.” State ex rel.

Lusane v. Pittman, 11th Dist. Portage No. 2015-P-0085, 2016-Ohio-3236, ¶4. Moreover, a motion to dismiss may be supported with certified judgments. See State ex rel. Davies v. Schroeder, 11th Dist. Ashtabula No. 2013-A-0059, 2014-Ohio-973, ¶6-8; Davis v. Burt, 11th Dist. Geauga No. 2011-G-3009, 2011-Ohio-5340, ¶5-8.

{¶6} There is no dispute that respondent has issued a judgment that fully disposes of relator’s motion. As a writ of procedendo cannot be used to control the

3

substance of a judge’s decision, the merits of relator’s procedendo petition are moot in all respects.

{¶7} In the present case, respondent ruled on relator’s October 19, 2018 “motion for leave to file delayed motion for new trial” after the filing of this original action.

{¶8} As respondent has performed the judicial act that relator sought to compel, the petition is moot.

{¶9} Respondent’s motion to dismiss is granted.

{¶10} Relator’s petition is dismissed as moot.

CYNTHIA WESTCOTT RICE, J., TIMOTHY P. CANNON, J., MARY JANE TRAPP, J., concur.