State ex rel. Lusane v. Pittman

2016 Ohio 3236

• Court: Ohio Court of Appeals
• Decided: May 31, 2016
• Docket: 2015-P-0085
• Status: Published

Opinion

[Cite as State ex rel. Lusane v. Pittman, 2016-Ohio-3236.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY, OHIO

STATE OF OHIO ex rel. : PER CURIAM OPINION MATTHEW M. LUSANE,

Relator, : CASE NO. 2015-P-0085 - vs - :

HONORABLE JUDGE : LAURIE J. PITTMAN, : Respondent.

Original Action for Writ of Procedendo.

Judgment: Petition dismissed.

Matthew M. Lusane, pro se, PID: A660-925, Trumbull Correctional Institution, P.O. Box 640, Leavittsburg, OH 44430 (Relator).

Victor V. Vigluicci, Portage County Prosecutor, and Denise L. Smith, Chief Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Respondent).

PER CURIAM.

{¶1} Respondent, Judge Laurie J. Pittman, moves to dismiss relator,

Matthew M. Lusane’s, petition for a writ of procedendo due to mootness. Relator

does not oppose. Dismissal is warranted.

{¶2} Relator seeks a writ ordering respondent to rule on a petition for

postconviction relief that he filed in his underlying criminal case. Shortly after

requesting the writ, respondent issued a judgment disposing of the postconviction petition and ruling upon all other pending motions. Certified

copies of those judgments are before this court.

{¶3} “A writ of procedendo is ‘an order from a court of superior

jurisdiction to one of inferior jurisdiction to proceed to judgment,’ and ‘is

appropriate when a court has either refused to render a judgment or has

unnecessarily delayed proceeding to judgment.’ State ex rel. Davey v. Owen,

133 Ohio St. 96, 106, 12 N.E.2d 144 (1937), and State ex rel. Crandall, Pheils &

Wisniewski v. DeCessna, 73 Ohio St.3d 180, 184, 1995 Ohio 98, 652 N.E. 2d

742 (1995). ‘[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, 4 N.E.3d 1026, ¶5.” State ex rel. Hundzsa v. Pittman, 11th Dist.

Portage No. 2014-P-0066, 2015-Ohio-569, ¶3.

{¶4} Mootness is a basis for dismissing a procedendo petition.

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. There is no dispute that respondent has issued a judgment that fully

disposes of relator’s postconviction petition. As a writ of procedendo cannot be

used to control the substance of a judge’s decision, Hundzsa, at ¶4, the merits of

relator’s procedendo petition is moot in all respects.

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

2 TIMOTHY P. CANNON, J., THOMAS R. WRIGHT, J., COLLEEN MARY O’TOOLE J., concur.