State ex rel. Atwater v. Gall , 2014 Ohio 3928 ( 2014 )

[Cite as State ex rel. Atwater v. Gall, 2014-Ohio-3928.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 101483
STATE OF OHIO, EX REL.
JOSEPH ATWATER
RELATOR
vs.
STEVEN E. GALL, JUDGE,
COURT OF COMMON PLEAS
RESPONDENT
JUDGMENT:
WRIT DENIED
Writ of Procedendo
Motion No. 476119
Order No. 477481
RELEASE DATE: September 9, 2014
FOR RELATOR
Joseph Atwater, pro se
R.C.I., No. 420-399
P.O. Box 8107
Mansfield, Ohio 44901
ATTORNEYS FOR RESPONDENT
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: James E. Moss
Assistant County Prosecutor
9th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, A.J.:
{¶1} On June 4, 2014, the relator, Joseph Atwater, commenced this procedendo
action to compel a ruling on his motion to merge allied offenses, which he filed on
November 4, 2013, in the underlying case, State v. Atwater, Cuyahoga C.P. No.
CR-01-409121-ZA.1 On June 25, 2014, the respondent moved for summary judgment
on the grounds of mootness. Attached to the respondent’s dispositive motion was a copy
of a certified November 11, 2013 journal entry in which the respondent denied the motion
to merge allied offenses. On July 25, 2014, Atwater filed a brief in opposition.
Atwater argues that the motion for summary judgment is invalid because Judge Timothy
McGinty was the originally assigned judge and presided over the case, and Atwater now
refuses to waive any potential conflict of interest.2 Atwater also argues that the state
received extensions of time to respond to his motion after November 11, 2013; therefore,
the journal entry cannot be binding. Atwater also seeks to cure various filing defects,
such as including a prison cashier’s affidavit and Loc.R. 45 affidavit. Nevertheless, the
November 11, 2013 journal entry establishes that the respondent proceeded to judgment
on the subject motion, and this matter is moot.
1 Atwater named Judge Daniel Gaul as the respondent. However, Judge Steven Gall is the
judge assigned to the underlying case. Accordingly, this court substitutes Judge Steven Gall as the
respondent.
2 In October 2001, Atwater pleaded guilty to involuntary manslaughter with a three-year
firearm specification and attempted murder. The court imposed a 20-year sentence. Timothy
McGinty is now the Cuyahoga County prosecutor.
{¶2} Accordingly, this court grants the respondent’s motion for summary
judgment and denies the application for a writ of procedendo. Relator to pay costs.
This court directs the clerk of courts to serve all parties notice of this judgment and its
date of entry upon the journal as required by Civ.R. 58(B).
{¶3} Writ denied.
_____________________________________________
MARY J. BOYLE, ADMINISTRATIVE JUDGE
FRANK D. CELEBREZZE, JR., J., and
SEAN C. GALLAGHER, J., CONCUR