State ex rel. Mays v. McCormick ( 2017 )

[Cite as State ex rel. Mays v. McCormick, 2017-Ohio-7891.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 106009
STATE OF OHIO, EX REL.
BRIAN MAYS
RELATOR
vs.
JUDGE TIMOTHY MCCORMICK
RESPONDENT
JUDGMENT:
WRIT DENIED
Writ of Procedendo
Motion No. 509330
Order No. 510188
RELEASE DATE: September 27, 2017
FOR RELATOR
Brian Mays, pro se
1254 Parkwood Drive
Cleveland, Ohio 44108
ATTORNEYS FOR RESPONDENT
Michael C. O’Malley
Cuyahoga County Prosecutor
By: James E. Moss
Assistant County Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶1} On July 18, 2017, the relator, Brian Mays, commenced this procedendo
action against the respondent, Cuyahoga County Common Pleas Court Judge Timothy
McCormick, to compel him to rule on a motion to terminate postrelease control that he
had filed in the underlying case, State v. Mays, Cuyahoga C.P. No. CR-02-424093-ZA.
Respondent has moved for summary judgment on the grounds of mootness, which Mays
has not opposed.
{¶2} Attached to respondent’s motion is a certified copy of a journal entry,
file-stamped July 26, 2017, granting defendant’s motion. The journal entry, therefore,
establishes that the request for a writ of procedendo is moot. State ex rel. Bortoli v.
Dinkelacker, 105 Ohio St. 3d 133, 2005-Ohio-779, 823 N.E.2d 448, ¶ 3 (“A writ of
procedendo will not issue to compel the performance of a duty that has already been
performed.”); State ex rel. Jerningham v. Cuyahoga Cty. Court of Common Pleas, 74
Ohio St. 3d 278, 658 N.E.2d 723 (1996); State ex rel. Pettway v. Cuyahoga Cty. Court of
Common Pleas, 8th Dist. Cuyahoga No. 98699, 2012-Ohio-5423.
{¶3} Accordingly, this court grants the respondent’s motion for summary
judgment and denies the writ. Costs assessed against relator; costs waived. The clerk
is directed to serve upon the parties notice of this judgment and its date of entry upon the
journal. Civ.R. 58(B).
{¶4} Writ denied.
EILEEN A. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR