State ex rel. Roberts v. Marsh (Slip Opinion) , 142 Ohio St. 3d 481 ( 2014 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State ex rel. Roberts v. Marsh, Slip Opinion No. 2014-Ohio-5242.]
NOTICE
This slip opinion is subject to formal revision before it is published in
an advance sheet of the Ohio Official Reports. Readers are requested
to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
65 South Front Street, Columbus, Ohio 43215, of any typographical or
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made before the opinion is published.
SLIP OPINION NO. 2014-OHIO-5242[THE STATE EX REL.] ROBERTS, APPELLANT, v. MARSH, JUDGE, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Roberts v. Marsh,
Slip Opinion No. 2014-Ohio-5242.]
Procedendo—Motion for new trial—Writ compelling judge to rule on motion not
available when ruling already issued—Dismissal of petition affirmed.
(No. 2014-0716—Submitted November 18, 2014—Decided December 3, 2014.)
APPEAL from the Court of Appeals for Hamilton County, No. C-140180.
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Per Curiam.
{¶ 1} We affirm the First District Court of Appeals’ dismissal of the
petition for a writ of procedendo filed by appellant, Mallon Roberts. Roberts was
found guilty of murder following a jury trial. On appeal he argued that certain
evidence should not have been allowed in the trial. State v. Roberts, 1st Dist.
Hamilton No. C-050279, 2007-Ohio-856. His conviction was affirmed. Despite
having argued the issue on appeal, Roberts filed a motion for a new trial on the
SUPREME COURT OF OHIO
same basis on November 7, 2013. Shortly thereafter, the trial court judge,
respondent Melba Marsh, overruled the motion.
{¶ 2} Roberts filed this action in the court of appeals, asking that the
court issue a writ of procedendo ordering Judge Marsh to rule on his motion.
Judge Marsh filed a motion to dismiss, asserting that the motion for a new trial
had been ruled on. The court of appeals, finding that the motion to dismiss was
“well taken,” dismissed the case. Roberts appealed.
{¶ 3} To be entitled to a writ of procedendo, Roberts must show a clear
legal right to require the court to proceed, a clear legal duty on the part of the
court to proceed, and the lack of an adequate remedy in the ordinary course of the
law. State ex rel. Sherrills v. Cuyahoga Cty. Court of Common Pleas, 72 Ohio
St.3d 461, 462, 650 N.E.2d 899 (1995). 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, 652 N.E.2d 742 (1995).
{¶ 4} Roberts asserts that Judge Marsh’s ruling on his motion was not a
proper ruling, as it did not include findings of fact and conclusions of law as
required for judgments denying postconviction relief under R.C. 2953.21.
{¶ 5} However, Roberts could have appealed Judge Marsh’s ruling on
the basis that it lacked findings of fact and conclusions of law or he could have
moved for such findings and conclusions. He therefore had adequate alternative
remedies in the ordinary course of the law. In addition, as Judge Marsh has in
fact ruled on his motion, he is not entitled to a writ of procedendo.
Judgment affirmed.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY, and
FRENCH, JJ., concur.
O’NEILL, J., dissents and would dismiss the appeal.
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January Term, 2014
Mallon Roberts, pro se.
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M.
Heenan, Assistant Prosecuting Attorney, for appellee.
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