State ex rel. Lusane v. Pittman ( 2016 )

[Cite as State ex rel. Lusane v. Pittman, 2016-Ohio-3236.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO ex rel. : PER CURIAM OPINION
MATTHEW M. LUSANE,
Relator, :
CASE NO. 2015-P-0085
- vs - :
HONORABLE JUDGE :
LAURIE J. PITTMAN,
:
Respondent.
Original Action for Writ of Procedendo.
Judgment: Petition dismissed.
Matthew M. Lusane, pro se, PID: A660-925, Trumbull Correctional Institution, P.O. Box
640, Leavittsburg, OH 44430 (Relator).
Victor V. Vigluicci, Portage County Prosecutor, and Denise L. Smith, Chief Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Respondent).
PER CURIAM.
{¶1} Respondent, Judge Laurie J. Pittman, moves to dismiss relator,
Matthew M. Lusane’s, petition for a writ of procedendo due to mootness. Relator
does not oppose. Dismissal is warranted.
{¶2} Relator seeks a writ ordering respondent to rule on a petition for
postconviction relief that he filed in his underlying criminal case. Shortly after
requesting the writ, respondent issued a judgment disposing of the
postconviction petition and ruling upon all other pending motions. Certified
copies of those judgments are before this court.
{¶3} “A writ of procedendo is ‘an order from a court of superior
jurisdiction to one of inferior jurisdiction to proceed to judgment,’ and ‘is
appropriate when a court has either refused to render a judgment or has
unnecessarily delayed proceeding to judgment.’ State ex rel. Davey v. Owen,
133 Ohio St. 96, 106, 12 N.E.2d 144 (1937), and State ex rel. Crandall, Pheils &
Wisniewski v. DeCessna, 73 Ohio St. 3d 180, 184, 1995 Ohio 98, 652 N.E.2d
742 (1995). ‘[P]rocedendo will not issue to compel the performance of a duty
that has already been performed.’ State ex rel. Clay v. Gee, 138 Ohio St. 3d 151,
2014-Ohio-48, 4 N.E.3d 1026, ¶5.” State ex rel. Hundzsa v. Pittman, 11th Dist.
Portage No. 2014-P-0066, 2015-Ohio-569, ¶3.
{¶4} Mootness is a basis for dismissing a procedendo petition.
Moreover, a motion to dismiss may be supported with certified judgments. See
State ex rel. Davies v. Schroeder, 11th Dist. Ashtabula No. 2013-A-0059, 2014-
Ohio-973, ¶6-8; Davis v. Burt, 11th Dist. Geauga No. 2011-G-3009, 2011-Ohio-
5340, ¶5-8. There is no dispute that respondent has issued a judgment that fully
disposes of relator’s postconviction petition. As a writ of procedendo cannot be
used to control the substance of a judge’s decision, Hundzsa, at ¶4, the merits of
relator’s procedendo petition is moot in all respects.
{¶5} Respondent’s motion to dismiss is granted.
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TIMOTHY P. CANNON, J., THOMAS R. WRIGHT, J., COLLEEN MARY
O’TOOLE J., concur.
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