State ex rel. Mays v. McCormick

2017 Ohio 7891

• Court: Ohio Court of Appeals
• Decided: September 27, 2017
• Docket: 106009
• Status: Published

Opinion

[Cite as State ex rel. Mays v. McCormick, 2017-Ohio-7891.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 106009

STATE OF OHIO, EX REL. BRIAN MAYS

RELATOR

vs.

JUDGE TIMOTHY MCCORMICK RESPONDENT

JUDGMENT: WRIT DENIED

Writ of Procedendo Motion No. 509330 Order No. 510188

RELEASE DATE: September 27, 2017 FOR RELATOR

Brian Mays, pro se 1254 Parkwood Drive Cleveland, Ohio 44108

ATTORNEYS FOR RESPONDENT

Michael C. O’Malley Cuyahoga County Prosecutor By: James E. Moss Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 EILEEN A. GALLAGHER, J.:

{¶1} On July 18, 2017, the relator, Brian Mays, commenced this procedendo

action against the respondent, Cuyahoga County Common Pleas Court Judge Timothy

McCormick, to compel him to rule on a motion to terminate postrelease control that he

had filed in the underlying case, State v. Mays, Cuyahoga C.P. No. CR-02-424093-ZA.

Respondent has moved for summary judgment on the grounds of mootness, which Mays

has not opposed.

{¶2} Attached to respondent’s motion is a certified copy of a journal entry,

file-stamped July 26, 2017, granting defendant’s motion. The journal entry, therefore,

establishes that the request for a writ of procedendo is moot. State ex rel. Bortoli v.

Dinkelacker, 105 Ohio St.3d 133, 2005-Ohio-779, 823 N.E.2d 448, ¶ 3 (“A writ of

procedendo will not issue to compel the performance of a duty that has already been

performed.”); State ex rel. Jerningham v. Cuyahoga Cty. Court of Common Pleas, 74

Ohio St.3d 278, 658 N.E.2d 723 (1996); State ex rel. Pettway v. Cuyahoga Cty. Court of

Common Pleas, 8th Dist. Cuyahoga No. 98699, 2012-Ohio-5423.

{¶3} Accordingly, this court grants the respondent’s motion for summary

judgment and denies the writ. Costs assessed against relator; costs waived. The clerk

is directed to serve upon the parties notice of this judgment and its date of entry upon the

journal. Civ.R. 58(B). {¶4} Writ denied.

EILEEN A. GALLAGHER, JUDGE

KATHLEEN ANN KEOUGH, A.J., and FRANK D. CELEBREZZE, JR., J., CONCUR