McDougald v. Kuhn (Slip Opinion) , 2020 Ohio 4924 ( 2020 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
McDougald v. Kuhn, Slip Opinion No. 2020-Ohio-4924.]
NOTICE
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SLIP OPINION NO. 2020-OHIO-4924MCDOUGALD, APPELLANT, v. KUHN, JUDGE, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as McDougald v. Kuhn, Slip Opinion No. 2020-Ohio-4924.]
Procedendo—Appellant seeking order compelling judge to journalize final
judgment of conviction failed to show clear legal right to relief in that
judgment of conviction contained all elements required to be a final,
appealable order—Court of appeals’ dismissal of complaint affirmed.
(No. 2020-0534—Submitted August 18, 2020—Decided October 20, 2020.)
APPEAL from the Court of Appeals for Scioto County, No. 19CA3881.
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Per Curiam.
{¶ 1} Appellant, Jerone McDougald, appeals the Fourth District Court of
Appeals’ judgment dismissing his complaint for a writ of procedendo against
appellee, Judge Mark E. Kuhn of the Scioto County Court of Common Pleas.
McDougald has also filed motions to amend his merit brief, for judgment on the
pleadings under Civ.R. 12(C), and for default judgment under Civ.R. 55. We grant
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the motion to amend, deny the Civ.R. 12(C) and Civ.R. 55 motions, and affirm the
Fourth District’s judgment.
Background
{¶ 2} McDougald is an inmate at the Toledo Correctional Institution. On
June 13, 2019, he filed a complaint for a writ of procedendo, seeking an order
compelling Judge Kuhn to journalize a final judgment of conviction. McDougald
argued that “Crim.R. 32(C) requires that the verdict itself be recorded in the court’s
journal” and that “without the journalization of this information, there is no
judgment of conviction * * * and therefore, no final appealable order.”
{¶ 3} Attached to McDougald’s complaint was a page that appears to have
been printed from the Scioto County Clerk of Courts’ website. The printout shows
a docket entry dated April 30, 2007. The docket entry states the prison terms
imposed for four criminal counts (i.e., possession of drugs, trafficking in drugs,
possessing criminal tools, and possessing a weapon while under a disability), which
were to be served consecutively for a total of 20 years’ imprisonment.
{¶ 4} Judge Kuhn moved to dismiss McDougald’s complaint. He argued
that McDougald was not entitled to a writ of procedendo because Judge Kuhn had
recused himself and therefore “did not have a clear legal duty to proceed to
judgment in this matter.” Judge Kuhn also argued that McDougald is not entitled
to a writ of procedendo because a motion to journalize the court’s decision, filed
by McDougald on March 6, 2019, had already been denied by a substitute judge.
See State ex rel. Daniels v. Russo, 156 Ohio St.3d 143, 2018-Ohio-5194, 123
N.E.3d 1011, ¶ 9-12 (noting that an appeal lies from the denial of a motion for a
judgment entry that complies with Crim.R. 32, precluding extraordinary relief in
mandamus or procedendo).
{¶ 5} The Fourth District sua sponte converted Judge Kuhn’s motion to
dismiss into a motion for summary judgment and permitted McDougald to file
evidence in opposition. McDougald did not submit evidence but filed a brief in
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opposition to summary judgment. He argued that Judge Kuhn’s recusal did not
preclude a writ of procedendo and that Judge Kuhn’s evidence showed that the
motion denied by the substitute judge was not McDougald’s motion to journalize.
{¶ 6} The Fourth District dismissed McDougald’s complaint for lack of
jurisdiction. The court examined the allegedly defective 2007 judgment entry1 and
observed that it contained (1) a statement that a jury had found McDougald guilty
of four felony counts, (2) the sentence imposed for each of the four counts, totaling
20 years in prison, (3) the imposition of postrelease control, (4) the signature of
Judge Kuhn’s predecessor, Judge William T. Marshall, and (5) a time stamp
indicating the date of journalization. The Fourth District therefore found that
McDougald’s judgment of conviction contained all the elements required for a
final, appealable order under Crim.R. 32(C) and State v. Lester, 130 Ohio St.3d
303, 2011-Ohio-5204, 958 N.E.2d 142. Accordingly, the court concluded that it
“lack[ed] jurisdiction” to grant McDougald’s requested relief in procedendo and
dismissed his petition.
{¶ 7} McDougald has appealed to this court as of right.
McDougald’s Motions
{¶ 8} McDougald has filed a motion to amend his merit brief, seeking to
add an argument that Judge Kuhn’s recusal does not bar relief in procedendo. He
argues that Judge Kuhn recused himself after McDougald filed this action and “for
the purpose of avoiding his duties to render a judgment.” McDougald’s motion is
unopposed.
{¶ 9} We grant the motion to amend. There is no prejudice to Judge Kuhn,
because he had the opportunity to address McDougald’s amended argument in his
merit brief. Moreover, the additional argument does not add a new issue to this
1. Neither party submitted the April 30, 2007 judgment entry as summary-judgment evidence. The
Fourth District considered it because McDougald alleged it to be defective in his procedendo
complaint. McDougald does not challenge the Fourth District’s consideration of the judgment entry.
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appeal, because McDougald raised the issue of Judge Kuhn’s late recusal in his
brief opposing summary judgment in the Fourth District.
{¶ 10} McDougald has also filed a Civ.R. 12(C) motion for judgment on
the pleadings and a Civ.R. 55 motion for default judgment in this appeal. In both
motions, McDougald contends that he is entitled to a judgment in his favor because
Judge Kuhn has not filed a merit brief in this appeal. We deny those motions
because neither Civ.R. 12(C) nor Civ.R. 55 applies to proceedings on appeal. See
Civ.R. 1(C); see also S.Ct.Prac.R. 6.01 et seq. (rules of practice for appeals of right
in this court). In any event, McDougald is incorrect, because Judge Kuhn timely
filed a merit brief in this case.
Writ of Procedendo
{¶ 11} A writ of procedendo is proper when a court has either refused to
enter a judgment or unnecessarily delayed proceeding to judgment. State ex rel.
Culgan v. Collier, 135 Ohio St.3d 436, 2013-Ohio-1762, 988 N.E.2d 564, ¶ 7. For
a writ of procedendo to issue, McDougald must show a clear legal right to require
Judge Kuhn to proceed, a clear legal duty on Judge Kuhn’s part to proceed, and the
lack of an adequate remedy in the ordinary course of law. Id.{¶ 12} The Fourth District dismissed McDougald’s petition based on its
purported lack of jurisdiction over McDougald’s original action in procedendo.
The Fourth District’s stated reason for the dismissal, however, conflates the merits
of McDougald’s petition with the court’s subject-matter jurisdiction. A court of
appeals has original jurisdiction in procedendo. Article IV, Section 3(B)(1)(e),
Ohio Constitution. The Fourth District’s determination that McDougald’s April
30, 2007 judgment of conviction was a final, appealable order did not divest the
court of jurisdiction over McDougald’s complaint; rather, it was a merits
determination that McDougald is not entitled to relief in procedendo.
{¶ 13} This court will not, however, reverse a correct judgment simply
because it is based on an erroneous rationale. State ex rel. Miller v. Bower, 156
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January Term, 2020
Ohio St.3d 455, 2019-Ohio-1623, 129 N.E.3d 389, ¶ 14. And in this case, the
dismissal of McDougald’s petition was appropriate because he failed to show a
clear legal right to relief in procedendo.
{¶ 14} Judge Kuhn does not raise his recusal as a bar to McDougald’s action
against him. Rather, Judge Kuhn argues that his predecessor, Judge Marshall,
entered a final, appealable order of conviction on April 30, 2007. Citing the
judgment entry of conviction, on which the Fourth District also relied, Judge Kuhn
argues that all the elements required by Crim.R. 32(C) and Lester were present.
{¶ 15} McDougald’s merit brief does not dispute the contents of the trial
court’s judgment entry journalized on April 30, 2007. Instead, he directs our
attention to a page from the trial court’s docket in his criminal case. The docket
text for an entry dated April 30, 2007, recites the prison terms to which McDougald
was sentenced for four criminal offenses. Relying on this docket entry, McDougald
contends that the trial court failed to journalize the jury verdict in his judgment of
conviction, rendering the entry defective under Crim.R. 32(C) and not a final,
appealable order.
{¶ 16} McDougald is mistaken, however, because he has confused the trial
court’s journalization of its judgment with its notation on the docket. The trial
court’s docket of journal entries, upon which McDougald relies, is not the
equivalent of journalization. State ex rel. Norris v. Wainwright, 158 Ohio St.3d 20,
2019-Ohio-4138, 139 N.E.3d 867, ¶ 19. Journalization is documented by the trial-
court judge’s signature and the stamp of the clerk of courts. Id. Thus, journal
entries signed by the trial-court judge and stamped by the clerk of courts are what
control, not the references to them contained on the court’s docket. Id.; see also
State ex rel. Hopson v. Cuyahoga Cty. Court of Common Pleas, 135 Ohio St.3d
456, 2013-Ohio-1911, 989 N.E.2d 49, ¶ 5.
{¶ 17} The Fourth District determined that the judgment entry of conviction
dated April 30, 2007, and signed by Judge Marshall contained all the elements
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required by Crim.R. 32(C) and Lester to be a final, appealable order. McDougald
does not dispute the contents of the judgment entry and therefore has failed to show
a clear legal right to relief in procedendo. See State ex rel. Howard v. Doneghy,
102 Ohio St.3d 355, 2004-Ohio-3207, 810 N.E.2d 958, ¶ 6 (writ of procedendo will
not issue to compel performance of a duty the court has already performed). The
dismissal of McDougald’s complaint was therefore appropriate.
Judgment affirmed.
O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, DONNELLY,
and STEWART, JJ., concur.
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Jerone McDougald, pro se.
Shane A. Tieman, Scioto County Prosecuting Attorney, and Danielle M.
Parker, Assistant Prosecuting Attorney, for appellee.
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