Smith v. Pike , 2014 Ohio 780 ( 2014 )

[Cite as Smith v. Pike, 2014-Ohio-780.]
STATE OF OHIO, COLUMBIANA COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
ROBERT J. SMITH, )
)
RELATOR, )
) CASE NO. 13 CO 55V. )
) OPINION
JUDGE C. ASHLEY PIKE, ) AND
) JUDGMENT ENTRY
RESPONDENT. )
CHARACTER OF PROCEEDINGS: Writ of Procedendo
JUDGMENT: Dismissed
APPEARANCES:
Relator Robert J. Smith, Pro-se
5700 ½ State Route 225
Wayland, Ohio 44285
For Respondent Robert L. Herron
Prosecutor
Krista R. Peddicord
Assistant Prosecutor
105 S. Market St.
Lisbon, Ohio 44432
JUDGES:
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Dated: February 27, 2014
[Cite as Smith v. Pike, 2014-Ohio-780.]
PER CURIAM
{¶1} Relator Robert J. Smith has filed a pro se petition for a writ of
procedendo asking this court to compel respondent Columbiana County Common
Pleas Court Judge C. Ashley Pike to issue a new sentencing entry to correct an
alleged illegal sentence.
{¶2} Smith alleges that in 2007 he was sentenced in the Columbiana County
Common Pleas Court to 5-years post-release control and a ten-year driver’s license
suspension in case no. 2005CR00358. He argues that according to Ohio statutory
and case law post-release control should have been only for 3 years and that the
driver’s license suspension should have been a mandatory loss of driver’s license.
He filed in the sentencing court a motion to correct the alleged illegal sentence, but
the court denied the requested relief.
{¶3} The criteria for relief in procedendo are well-established. The relator
must demonstrate: (1) a clear legal right to proceed in the underlying matter; and (2)
the lack of an adequate remedy in the ordinary course of the law. State ex rel.
Charvat v. Frye, 114 Ohio St.3d 76, 2007-Ohio-2882, 868 N.E.2d 270, ¶ 13. A writ of
procedendo is appropriate when “a court has either refused to render a judgment or
has unnecessarily delayed proceeding to judgment.” State ex rel. Weiss v. Hoover,
84 Ohio St.3d 530, 532, 705 N.E.2d 1227 (1999).
{¶4} Smith’s petition must be dismissed. Respondent has not refused to
render a judgment nor has it unnecessarily delayed proceeding to judgment. Smith
filed a motion to correct the alleged illegal sentence and respondent ruled upon that
motion. Smith was just dissatisfied with how respondent ruled upon that motion.
Smith has not identified any motions that respondent has yet to rule upon.
{¶5} Additionally, relief in procedendo is unavailable if there is an adequate
remedy in the ordinary course of law. State ex rel. Sevayega v. McMonagle, 122
Ohio St.3d 54, 2009-Ohio-2367, 907 N.E.2d 1180, ¶ 1. To the extent Smith contests
the propriety of the ruling he received on his motion to correct sentence, he had an
adequate remedy in the ordinary course of law by way of appeal. See id.{¶6} For the foregoing reasons, Smith’s petition for writ of procedendo is
-2-
dismissed. Costs assessed to Smith.
{¶7} Final order. Clerk to serve notice as provided by the civil rules.
Donofrio, J. concurs.
Waite, J. concurs.
DeGenaro, P.J. concurs.