Smith v. McClelland , 2012 Ohio 2518 ( 2012 )

[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