State ex rel. Peterson v. Sutula

2011 Ohio 4646

• Court: Ohio Court of Appeals
• Decided: September 14, 2011
• Docket: 96744
• Status: Published

Opinion

[Cite as State ex rel. Peterson v. Sutula, 2011-Ohio-4646.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96744

STATE OF OHIO EX REL., DAMIEN L. PETERSON RELATOR

vs.

JUDGE JOHN D. SUTULA RESPONDENT

JUDGMENT: WRIT DENIED

Writ of Procedendo Motion No. 444842 Order No. 447196

RELEASE DATE: September 14, 2011 FOR RELATOR

Damien L. Peterson, Pro Se Inmate No. 503-884 Marion Correctional Institution P.O. Box 57 940 Marion-Williamsport Road Marion, OH 43302

ATTORNEYS FOR RESPONDENT

William D. Mason Cuyahoga County Prosecutor

By: James E. Moss Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113

MELODY J. STEWART, P.J.:

{¶ 1} Relator, Damien L. Peterson, requests that this court issue a writ of procedendo

compelling respondent judge to issue a ruling on the motion to vacate void sentencing journal

entry/judgement of conviction filed by Peterson in State v. Peterson, Cuyahoga County Court

of Common Pleas Case No. CR-388072 on November 12, 2010. {¶ 2} Respondent has filed a motion for summary judgment attached to which is a

copy of the journal entry received for filing by the clerk on May 25, 2011 denying the motion

to vacate void sentencing journal entry/judgement of conviction. Relator has not opposed the

motion. Respondent argues that this action in procedendo is, therefore, moot. We agree.

{¶ 3} We also note that Peterson has not complied with the requirement of R.C.

2969.25 that he provide an affidavit describing “each civil action or appeal of a civil action

that the inmate has filed in the previous five years in any state or federal court.” R.C.

2969.25(A). Failure to comply with this provision provides a basis for dismissal of an action

in procedendo. State ex rel. Huffman v. Ambrose, 8th Dist. No. 95546, 2010-Ohio-5376.

Peterson also failed to support his complaint with a statement setting forth the balance in his

inmate account as certified by the institutional cashier. See R.C. 2969.25(C). “This also is

sufficient reason to deny the writ, deny indigency status, and assess costs against the relator.”

Id. ¶9.

{¶ 4} Accordingly, respondent’s motion for summary judgment is granted. Relator

to pay costs. 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).

Writ denied. MELODY J. STEWART, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., and SEAN C. GALLAGHER, J., CONCUR