State ex rel. Williams v. Croce (Slip Opinion) , 153 Ohio St. 3d 348 ( 2018 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Williams v. Croce, Slip Opinion No. 2018-Ohio-2703.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
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the opinion is published.
SLIP OPINION NO. 2018-OHIO-2703
THE STATE EX REL. WILLIAMS, APPELLANT, v. CROCE, JUDGE, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Williams v. Croce, Slip Opinion No.
2018-Ohio-2703.]
Procedendo—Procedendo will not compel performance of a duty that has already
been performed—Court of Appeals’ dismissal affirmed.
(No. 2017-1339—Submitted January 23, 2018—Decided July 12, 2018.)
APPEAL from the Court of Appeals for Summit County, No. 28651.
________________
Per Curiam.
{¶ 1} Appellant, Cameron Williams, appeals the dismissal of his complaint
for a writ of procedendo against appellee, Summit County Common Pleas Court
Judge Christine Croce. For the reasons set forth below, we affirm the judgment of
the Ninth District Court of Appeals.
SUPREME COURT OF OHIO
Background
{¶ 2} In March 2008, a Summit County jury convicted Williams of multiple
offenses, including two counts of aggravated murder with capital specifications, for
which he received a sentence of life imprisonment with parole eligibility after 69
years. The Ninth District Court of Appeals reversed his conviction on one count of
violating a protective order but otherwise affirmed. State v. Williams, 9th Dist.
Summit No. 24169, 2009-Ohio-3162.
{¶ 3} On September 10, 2013, a visiting judge sitting by assignment held a
resentencing hearing to correct the notification regarding Williams’s postrelease
control, and on September 30, she issued a new sentencing entry. Williams
appealed, arguing that the new entry did not comply with Crim.R. 32(C) (“A
judgment of conviction shall set forth the fact of conviction and sentence”) and the
requirement that “[o]nly one document can constitute a final appealable order,”
State v. Baker, 119 Ohio St. 3d 197, 2008-Ohio-3330, 893 N.E.2d 163, ¶ 17. The
court of appeals held that Williams had in fact appealed from a final, appealable
order but that the visiting judge’s corrective entry should have been labeled a nunc
pro tunc entry. The court of appeals remanded the case for that correction. State v.
Williams, 9th Dist. Summit No. 27101, 2014-Ohio-1608, ¶ 13, 21.
{¶ 4} On remand, Judge Croce issued the nunc pro tunc sentencing order
dated April 24, 2014. On December 1, 2016, Williams filed a motion asking Judge
Croce to issue a final, appealable order. On February 8, 2017, Judge Croce denied
the motion.
Procedural history
{¶ 5} On May 26, 2017, Williams filed his petition for a writ of procedendo
against Judge Croce. He alleged that neither the September 30, 2013 sentencing
entry nor the April 24, 2014 nunc pro tunc entry was a final appealable order
because neither one contained all the information required by Crim.R. 32(C) and
the “one document” rule enunciated in Baker. He asked the court to issue a writ of
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January Term, 2018
procedendo to compel Judge Croce to enter a revised journal entry that would be
final and appealable. Judge Croce filed a motion to dismiss. On September 17,
2017, the court of appeals granted the motion. 9th Dist. Summit No. 28651 (Sept.
13, 2017). The court held that Williams had failed to allege the essential elements
of procedendo: “Judge Croce has not refused to rule on Mr. Williams’ motion. She
denied the motion, and Mr. Williams is dissatisfied with her ruling. A writ of
procedendo is not appropriate under these circumstances.” Id. Williams timely
appealed.
Analysis
{¶ 6} “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). To be
entitled to a writ of procedendo, a relator must establish (1) a clear legal right to
require the respondent to proceed, (2) a clear legal duty on the part of the respondent
judge to proceed, and (3) the lack of an adequate remedy in the ordinary course of
the law. State ex rel. Yeaples v. Gall, 141 Ohio St. 3d 234, 2014-Ohio-4724, 23
N.E.3d 1077, ¶ 20. “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).
{¶ 7} The court of appeals correctly held that Williams’s complaint failed
to state a claim for a writ of procedendo. The complaint creates the impression that
Judge Croce had not ruled on Williams’s motion for a final, appealable order. But
as the court of appeals correctly noted, she had decided the motion, thereby
rendering the complaint moot. See, e.g., State ex rel. Poulton v. Cottrill, 147 Ohio
St.3d 402, 2016-Ohio-5789, 66 N.E.3d 716, ¶ 1-2 (“Procedendo will not compel
the performance of a duty that has already been performed,” and in such
circumstances, the complaint is moot). “ ‘An event that causes a case to become
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SUPREME COURT OF OHIO
moot may be proved by extrinsic evidence outside the record.’ ” State ex rel.
Hilltop Basic Resources, Inc. v. Cincinnati, 118 Ohio St. 3d 131, 2008-Ohio-1966,
886 N.E.2d 839, ¶ 15, quoting State ex rel. Cincinnati Enquirer, Div. of Gannett
Satellite Info. Network, Inc. v. Dupuis, 98 Ohio St. 3d 126, 2002-Ohio-7041, 781
N.E.2d 163, ¶ 8; see also State ex rel. Nelson v. Russo, 89 Ohio St. 3d 227, 228, 729
N.E.2d 1181 (2000) (an appellate court may take judicial notice that a writ action
is moot).
{¶ 8} Procedendo can be used only to compel Judge Croce to issue some
ruling on the motion (if she had been dilatory, which she was not) and cannot be
used to compel her to reach a specific result or to change the result once she ruled.
State ex rel. Grove v. Nadel, 81 Ohio St. 3d 325, 326, 691 N.E.2d 275 (1998)
(procedendo “does not attempt to control the inferior court about what the judgment
should be”).
{¶ 9} Williams has failed to state a claim for a writ of procedendo. The
court of appeals properly dismissed the complaint.
Judgment affirmed.
O’DONNELL, KENNEDY, FRENCH, FISCHER, and DEWINE, JJ., concur.
O’CONNOR, C.J., and DEGENARO, J., not participating.
_________________
Cameron D. Williams, pro se.
Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Joseph R.
McAleese, Assistant Prosecuting Attorney, for appellee.
_________________
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