State ex rel. McCall v. Gall

2017 Ohio 8234

• Court: Ohio Court of Appeals
• Decided: October 18, 2017
• Docket: 105972
• Status: Published

Opinion

[Cite as State ex rel. McCall v. Gall, 2017-Ohio-8234.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 105972

STATE OF OHIO, EX REL. TONY McCALL

RELATOR

vs.

THE HONORABLE JUDGE STEVEN E. GALL, ET AL. RESPONDENTS

JUDGMENT: WRITS DENIED

Writs of Mandamus and Procedendo Motion No. 509281 Order No. 510958

RELEASE DATE: October 18, 2017 FOR RELATOR

Tony McCall, pro se Inmate No. A167246 Pickaway Correctional Institution P.O. Box 209 Orient, Ohio 43146-0209

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 T. GALLAGHER, P.J.:

{¶1} On July 7, 2017, the relator, Tony McCall, commenced this mandamus and

procedendo action against the respondents, Judge Steven Gall, Clerk of Courts Nailah

Byrd, and the Cuyahoga County Prosecutor’s Office. He seeks in the underlying cases,

State v. McCall, Cuyahoga C.P. Nos. CR-81-166002-ZA and CR-81-166093-ZA, (1) to

compel the respondents to serve him with a copy of the February 22, 2017 judgment entry

denying his motion to withdraw guilty plea, (2) to compel a ruling on his motion to

compel the clerk to serve the ruling, (3) to compel a ruling on his February 28, 2017

motion for leave to amend and add claims to his motion to withdraw guilty plea, (4) to

compel the respondents to serve that ruling on him, and (5) to compel the prosecutor to

serve him with a copy of the March 15, 2017 brief in opposition. On August 4, 2017,

the respondents moved for summary judgment on the grounds of mootness. McCall

filed a brief in opposition on August 29, 2017.1 For the following reasons, this court

grants the respondents’ motion for summary judgment and denies the application for writs

of mandamus and procedendo.

{¶2} Attached to the respondents’ summary judgment motion are a letter from

the clerk of courts stating: “Enclosed are copies of journal entries issued 2/22/2017 in

cases CR-81-160093-ZA and CR-81-166002-ZA.” and the two journal entries from the

underlying cases denying McCall’s motions to withdraw his guilty pleas. These

1Pursuant to a motion for extension of time, this court granted McCall until September 27, 2017, to file his opposition. attachments establish that the clerk has served the journal entries upon McCall and that

his motion to compel service of these entries is moot. McCall admits this in his August

29, 2017 brief.

{¶3} The summary judgment motion also attached certified copies of

June 28, 2017 journal entries in which the respondent judge denied the motions for leave

to amend the motion to withdraw guilty plea in the two underlying cases. These

attachments establish that the judge has fulfilled his duty to rule on the subject motions.

It also moots McCall’s claim that the clerk serve him with copies of the rulings. An

extraordinary writ will not issue to compel a vain act. State ex rel. Newell v. Gaul, 8th

Dist. Cuyahoga No. 98326, 2012-Ohio-4068.

{¶4} Finally, the respondent prosecutor attached his brief in opposition to

McCall’s motion for leave to amend. This attachment establishes that McCall’s claim

for service of the brief is moot.

{¶5} Accordingly, this court grants the respondents’ motion for summary

judgment and denies the application for writs of procedendo and mandamus.

Respondents to pay costs; costs waived. 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).

{¶6} Writs denied.

EILEEN T. GALLAGHER, PRESIDING JUDGE MELODY J. STEWART, J., and SEAN C. GALLAGHER, J., CONCUR