State ex rel. Knox v. Russo , 2015 Ohio 3773 ( 2015 )

[Cite as State ex rel. Knox v. Russo, 2015-Ohio-3773.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 102859 and 103003
STATE OF OHIO, EX REL.
LARRY KNOX
RELATOR
vs.
HONORABLE JUDGE JOSEPH D. RUSSO
RESPONDENT
JUDGMENT:
WRIT DENIED
Writ of Procedendo
Motion No. 486139
Order No. 488482
RELEASE DATE: September 11, 2015
FOR RELATOR
Larry Knox, pro se
Inmate No. 0285905
Cuyahoga County Jail
P.O. Box 5600
Cleveland, Ohio 44101
ATTORNEYS FOR RESPONDENT
Timothy J. McGinty
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, Larry Knox, filed a petition for writ of procedendo, which was
captioned, State ex rel. Knox v. Russo, 8th Dist. Cuyahoga No. 102859. The pleading was
unreadable and incomprehensible and this court issued an order striking it 1 but also
granted Knox leave to file a petition that complied with Civ.R. 8 and Loc.App.R. 45.
Instead of refiling the petition in State ex rel. Knox v. Russo, 8th Dist. Cuyahoga No.
102859, Knox filed a new petition which was captioned State ex rel. Knox v. Russo, 8th
Dist. Cuyahoga No. 103003. The matters have been consolidated. Respondent filed a
motion for summary judgment and Knox has filed objections to the motion for summary
judgment. For the reasons that follow, respondent’s motion is granted and the writ is
denied.
{¶2} Knox’s pending petition for writ of procedendo and “to compel the specific
performances, to wit: * * * ” is basically incomprehensible to this court in terms of what
relief Knox is seeking by way of a writ of procedendo. The petition contains a rambling,
handwritten litany of unrelated, generalized legal theories, such as
pattern, practice of abuse power [sic], ineffective assistance of counsel’s
[sic] (attorney’s) in all said cases 2010 thru 2015, Section 10, Article I, of
Ohio Constitution. As a matter of law (produce all criminal complaints
from the municipal courts) pretrials on records, granted these continuances,
1 The
attachments/exhibits to the petition were retained by the court and
Knox was not required to resubmit them with the new petition.
produce all in pending case also, and proof, facts, Judge Joseph Russo, is
know [sic] longer acting as a judge, has been prosecuting accused cases,
2010 thru 2015 [sic], compel to produce all continuances at defendants
request, waivers, motions filed by counsels, CR-13-576939-A, granting on
records As a right and case CR-14-590340 A, and case CR-550801, and
Judge McMonagle’s certified copy of January 24-25-2008, Ohio Supreme
Courts notice of final order, judgment in case CV-08-646011 (compel to
produce 911) Journal entry, In the Cuyahoga Court, Common Pleas Courts.
The balance of the petition is similarly confusing and disjointed.
{¶3} Respondent also expressed having difficulty in comprehending Knox’s
second petition but made an effort to respond to it. Respondent first maintains that the
petition is defective for failure to attach the statement of account required by R.C.
2969.25(C). However, the attachments to Knox’s initial petition did comply with the
statute and we ordered that those attachments would be retained and need not be
resubmitted with the refiled petition. Therefore, the second petition is not subject to
dismissal on that basis.
{¶4} Alternatively, respondent argues that Knox is not entitled to a remedy by
way of procedendo. We agree that Knox has failed to establish the elements that are
required for issuance of the writ.
{¶5} In order for this court to issue a writ of procedendo, Knox must demonstrate
that he possesses a clear legal right to the relief requested and that there exists no
adequate remedy in the ordinary course of the law. State ex rel. Brown v. Shoemaker, 38
Ohio St.3d 344, 528 N.E.2d 188 (1988). Knox must also demonstrate that Judge Russo
possesses a clear legal duty, which requires him to proceed to judgment. State ex rel.
Cochran v. Quillin, 20 Ohio St.2d 6, 251 N.E.2d 607 (1969). Finally, a writ of
procedendo is appropriate when a court has refused to render a judgment or has
unnecessarily delayed proceeding to judgment. State ex rel. Doe v. Tracy, 51 Ohio
App.3d 198, 555 N.E.2d 674 (12th Dist. 1988).
{¶6} Knox’s objections to respondent’s motion for summary judgment complain
that respondent has not responded to all the claims he filed in the petition. However, like
respondent, the only basis we have been able to discern2 from Knox’s filings before this
court that could relate to a writ of procedendo is that he has filed some pro se motions for
which he seeks a ruling, including a motion to waive counsel and to represent himself.
Knox advances a host of other fragmented arguments, including that his speedy trial
rights have been violated and that his case(s) should be dismissed for that reason, along
with numerous other reasons that he believes warrant dismissal. He also believes his
indictment is defective, that he was improperly reclassified under the laws regarding
registration and notification requirements for sexual offense convictions and maintains
that the municipal and common pleas court lack jurisdiction. He generally alleges fraud
and conspiracy on behalf of respondent, court officials, his attorneys, the sheriff, and
clerks. He seeks an order compelling respondent to produce numerous documents to him,
2 Knox was expressly directed by this court to clearly set forth a coherent
claim and requested relief in his petition. He has not done so. We granted him leave
to state a claim for relief, yet we are still endeavoring to decipher a cognizable claim
and requested relief, which is not the court’s obligation. E.g., Glazer v. Chase Home
Fin. L.L.C., 8th Dist. Cuyahoga Nos. 99875 and 99736, 2013-Ohio-5589, ¶ 101;
Sonoga v. Trumbull Cty. Child Support Enforcement Agency, 11th Dist. Trumbull
No. 2004-T-015, 2005-Ohio-3615, ¶ 10 (it is not the court’s job to clean up pleading
deficiencies). Knox cannot complain that his claims are not fully addressed when he
has failed to present them in a reasonably comprehensible fashion.
including attorney fee bills, municipal court transcripts and all journal entries issued in all
cases from “2010 to 2015.”
{¶7} It appears Knox is seeking to obtain a writ of procedendo from this court
that would compel respondent to produce documents and issue specific rulings, which is
improper. “The writ of procedendo is merely an order from a court of superior jurisdiction
to one of inferior jurisdiction to proceed to judgment. It does not in any case attempt to
control the inferior court as to what that judgment should be. * * * ” State ex rel. Davey v.
Owen, 133 Ohio St. 96, 106, 12 N.E.2d 144 (1937). “Procedendo is a high prerogative
writ of an extraordinary nature. It is an order from a court of superior jurisdiction to
proceed to judgment and does not lie to control or interfere with ordinary court procedure.
* * * ” State ex rel. Ratliff v. Marshall, 30 Ohio St.2d 101, 102, 282 N.E.2d 582 (1972).
{¶8} Knox has not clearly identified which pro se motions are at issue since his
petition identifies numerous different lower court case numbers. The caption of his
petition identifies lower court case number Cuyahoga C.P. No. CR-14-590340-A but the
body of his petition cites all cases from “2010 thru 2015” and also references Cuyahoga
C.P. Nos. CR-13-576939-A and CV-08-646011.
{¶9} Knox has not established that the trial court has a clear legal duty to proceed
to judgment on any specific or identifiable motion and he has not established that
respondent has unnecessarily delayed proceeding to judgment. In CR-14-590340-A, Knox
is represented by assigned counsel and the case has been transferred from respondent’s
docket to the docket of the administrative judge of the Cuyahoga County Common Pleas
Court by order dated August 13, 2015. The law in this district generally provides that a
court may not entertain pro se motions that are filed while the defendant is represented by
assigned counsel. E.g., State v. Mongo, 8th Dist. Cuyahoga No. 100926, 2015-Ohio-1139,
¶ 14. While this does not apply to motions for self-representation,3 it is still incumbent
upon Knox to identify such a pending motion and to demonstrate that respondent has
refused to render judgment or has unnecessarily delayed proceeding to judgment on it.
We note that on June 9, 2015, the court allowed one assigned counsel to withdraw and
appointed the county public defender to represent Knox. Subsequently, he filed another
motion to waive counsel. Thereafter, the docket reflects that a competency hearing was
set and the case was scheduled for another hearing on August 13, 2015. The docket does
not reflect an unreasonable delay in these proceedings. Furthermore, respondent has
recused himself from CR-14-590340-A and the matter is now proceeding before the
administrative judge of the common pleas court.
{¶10} The docket of CR-13-576939-A reflects that the matter was dismissed
without prejudice and defendant was ordered released on that case by order dated May 1,
2015. Therefore, respondent cannot proceed in that matter.
{¶11} Besides Knox’s allegations regarding alleged pending (but unidentified)
pro se motions, Knox’s petition, and his objections to respondent’s motion for summary
judgment, present various arguments that are not cognizable in an original action and do
not provide any basis for issuing a writ of procedendo. For example, Knox presents
3See Turner v. McGinty, 8th Dist. Cuyahoga No. 102074, 2015-Ohio-529.
arguments as to why he believes his case(s) should be dismissed, including violations of
speedy trial rights due to allegedly unauthorized continuances; he seeks to compel
respondent to produce various entries; he alleges fraud by court officials and law
enforcement; he challenges the validity of the complaints or indictments; he maintains
that the municipal and common pleas courts lack jurisdiction; and he alleges that his
reclassification as a sex offender was unconstitutional. Defects in the indictment and
alleged violations of speedy trial rights cannot be collaterally attacked in an original
action. State ex rel. Lisboa v. McCafferty, 8th Dist. Cuyahoga No. 93051,
2009-Ohio-4377, ¶ 9 (“an extraordinary writ, such as prohibition, is not the proper
remedy for addressing speedy trial issues”); State ex rel. Wilkerson v. Matia, 8th Dist.
Cuyahoga No. 79115, 2001 Ohio App. LEXIS 769, *1 (8th Dist. 2001) (the issue of a
defective indictment is properly raised through a direct appeal). In essence, Knox is
advocating for the dismissal of criminal matters rather than seeking a writ compelling the
court to proceed to judgment. Therefore, a writ of procedendo is not warranted.
{¶12} For all of the foregoing reasons, respondent’s motion for summary
judgment is granted and the petition for writ of procedendo is denied. Relator to pay
costs. The court directs the clerk of courts to serve all parties with notice of this judgment
and its date of entry upon the journal as required by Civ.R. 58(B).
{¶13} Writ denied.
MELODY J. STEWART, PRESIDING JUDGE
MARY J. BOYLE, J., and
PATRICIA ANN BLACKMON, J., CONCUR