Smith v. McClelland ( 2012 )


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  • [Cite as Smith v. McClelland, 
    2012-Ohio-2518
    .]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 98123
    ALFONSO SMITH
    RELATOR
    vs.
    JUDGE ROBERT C. McCLELLAND
    RESPONDENT
    JUDGMENT:
    WRIT DENIED
    Writ of Procedendo
    Motion No. 454069
    Order No. 455161
    RELEASE DATE: June 4, 2012
    FOR RELATOR
    Alfonso Smith, pro se
    Inmate No. 601-802
    North Central Correctional Institution
    P.O. Box 1812
    Marion, Ohio 43301-1812
    ATTORNEYS FOR RESPONDENT
    William D. Mason
    Cuyahoga County Prosecutor
    By: James E. Moss
    Assistant County Prosecutor
    8th Floor Justice Center
    1200 Ontario Street
    Cleveland, Ohio 44113
    MARY EILEEN KILBANE, J.:
    {¶1} Alfonso Smith has filed a complaint for a writ of procedendo. Smith seeks
    an order from this court that requires Judge Robert C. McClelland to issue rulings with
    regard to a petition for a writ of habeas corpus and a “hybrid” motion to challenge the
    selection of the grand jury as originally filed in State v. Smith, Cuyahoga C.P. Case
    No. CR-537931.1 Judge McClelland has filed a motion for summary judgment, which
    we grant for the following reasons.
    {¶2} Initially, we find that Smith’s complaint for a writ of procedendo is
    procedurally defective.    Loc.App.R. 45(B)(1)(a) provides that a complaint for an
    extraordinary writ must be supported by a sworn affidavit that specifies the details of
    Smith’s claim. A simple statement that verifies that Smith has reviewed the complaint
    and that the contents are true and accurate does not satisfy the mandatory requirement
    under Loc.App.R. 45(B)(1)(a). State ex rel. Jones v. McGinty, 8th Dist. No. 92602,
    
    2009-Ohio-1258
    ; State ex rel. Mayes v. Ambrose, 8th Dist. No. 91980, 
    2009-Ohio-25
    ;
    James v. Callahan, 8th Dist. No. 89654, 
    2007-Ohio-2237
    .
    {¶3} In addition, we find that Smith is not entitled to a writ of procedendo.
    Attached to Judge McClelland’s motion for summary judgment is a copy of a journal
    1Pursuant  to Civ.R. 25(D)(1), Judge Robert C. McClelland is substituted for
    the judge that was originally assigned to the underlying criminal case.
    entry that demonstrates that a ruling was rendered, on September 17, 2010, with regard to
    Smith’s petition for a writ of habeas corpus. In addition, Smith’s “hybrid” motion, to
    challenge the selection of the grand jury, must be deemed denied upon disposition of the
    underlying criminal action. Smith entered a plea of guilty to one count of gross sexual
    imposition on April 18, 2011, which rendered any pending motion deemed as denied.
    State ex rel. Harris v. Sheehan, 8th Dist. No. 93516, 
    2009-Ohio-4196
    ; State v. Whitaker,
    8th Dist. No. 83824, 
    2004-Ohio-5016
    . Thus, Smith’s complaint for a writ of procedendo
    is moot. State ex rel. Fontanella v. Kontos, 
    117 Ohio St.3d 514
    , 
    2008-Ohio-1431
    , 
    885 N.E.2d 220
    .
    {¶4} Accordingly, we grant Judge McClelland’s motion for summary judgment.
    Smith to pay costs. The court directs the clerk of court to serve notice of this judgment
    and its date of entry upon the journal as required by Civ.R. 58(B).
    {¶5} Writ denied.
    MARY EILEEN KILBANE, JUDGE
    JAMES J. SWEENEY, P.J., and
    KENNETH A. ROCCO, J., CONCUR
    

Document Info

Docket Number: 98123

Judges: Kilbane

Filed Date: 6/4/2012

Precedential Status: Precedential

Modified Date: 10/30/2014