State ex rel. Peterson v. Durkin , 2012 Ohio 3867 ( 2012 )

[Cite as State ex rel. Peterson v. Durkin, 2012-Ohio-3867.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, ex rel. )
BOBBIE PETERSON, )
) CASE NO. 12 MA 96
RELATOR, )
) OPINION
- VS - ) AND
) JUDGMENT ENTRY
JUDGE JOHN DURKIN, MAHONING )
COUNTY COMMON PLEAS COURT, )
)
RESPONDENT. )
CHARACTER OF PROCEEDINGS: Relator’s Petition for Writ of Procedendo;
Respondent’s Combined Answer and
Motion to Dismiss.
JUDGMENT: Petition for Writ of Procedendo Denied;
Motion to Dismiss Granted.
APPEARANCES:
For Petitioner: Bobbie Peterson, Pro Se
#A506-955
Mansfield Correctional Institution
P.O. Box 788
Mansfield, Ohio 44901
For Respondent: Attorney Ralph Rivera
Assistant Prosecutor
Mahoning County Prosecutor’s Office
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503
JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: August 3, 2012
[Cite as State ex rel. Peterson v. Durkin, 2012-Ohio-3867.]
PER CURIAM:
¶{1} Relator Bobbie Peterson filed a Petition for Writ of Procedendo with this
court on May 24, 2012. The petition requests this court to order Respondent Judge
Durkin of the Mahoning County Common Pleas Court to rule on Relator’s August 31,
2011 motion titled “Motion to Impose a Valid Sentence that Complies with R.C.
2941.25(A).” On May 29, 2012, Respondent filed a combined answer and motion to
dismiss.
¶{2} The Ohio Supreme Court has explained that 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). The criteria for relief in procedendo are
well-established. 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, 868 N.E.2d 270, 2007-Ohio-
2882, ¶ 13.
¶{3} Attached to the combined answer and motion to dismiss is a judgment
entry dated September 2, 2011, which states, “The Defendant’s Motion to Impose a
Valid Sentence Filed August 31, 2011, is overruled.” 09/02/11 J.E. This attachment
establishes that the trial court has proceeded to judgment; it issued a ruling on the
August 31, 2011 motion. Thus, the trial court's performance of the act requested
renders the petition moot and requires dismissal. State ex rel. Howard v. Skow, 102
Ohio St.3d 423, 2004-Ohio-3652, ¶ 9. This is because procedendo cannot be used to
compel the performance of a duty already performed. State ex rel. Kreps v.
Christiansen, 88 Ohio St.3d 313, 318, 725 N.E.2d 663 (2000).
¶{4} Accordingly, the motion to dismiss is granted and the request for
extraordinary relief is denied.
-2-
¶{5} Final Order. Clerk to serve notice as provided by the Civil Rules.
Vukovich, J., concurs.
Donofrio, J., concurs.
DeGenaro, J., concurs.