State ex rel. Orr v. Corrigan ( 2022 )

[Cite as State ex rel. Orr v. Corrigan, 2022-Ohio-3924.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE EX REL. DARLLEL ORR, :
Relator, :
No. 111878
v. :
THE HONORABLE JUDGE :
PETER J. CORRIGAN,
:
Respondent.
JOURNAL ENTRY AND OPINION
JUDGMENT: COMPLAINT DISMISSED
DATED: November 2, 2022
Writ of Procedendo
Motion No. 558130
Order No. 558921
Appearances:
Darllel Orr, pro se.
Michael C. O’Malley, Prosecuting Attorney, and James E.
Moss, Assistant Prosecuting Attorney, for respondent.
FRANK DANIEL CELEBREZZE, III, P.J.:
Relator, Darllel Orr, seeks a writ of procedendo directing respondent,
Judge Peter J. Corrigan, to take some action that is not immediately apparent from
the complaint. Orr claims that respondent wrongfully denied him “timely or
reasonable journal entry notification and closure of the sua sponte executed
stay/continuance of [r]espondent’s charged duty to deliberate guilt or innocence
from August 19, 2013 through September 19, 2013 critical timelines.” For the
following reasons, we grant respondent’s motion to dismiss and dismiss the
complaint.
I. Background
Orr was charged, tried, and convicted of several counts related to the
murder of Peter E. Nelson in State v. Orr, Cuyahoga C.P. No. CR-12-560637-A. Orr
claims that during the bench trial that was conducted in this case, respondent
indicated that he would “take some time to deliberate and let [Orr and the state]
know when I have a verdict.” Orr claims that, rather than deliberating, respondent
presided over another civil trial in the common pleas court. Orr claims respondent
breached some duty because there was no stay or continuance docketed in his case.
Orr claims this constitutes respondent’s “unjournalized/unresolved decision to sua
sponte stay the execution of deliberating [Orr’s case] — a submitted murder case
without bringing him in open court pursuant to Crim.R. 43(A) and R.C. 2945.02 to
determine his consent in the matter.” Orr goes on to claim that respondent must
provide him with
(1) a journal entry establishing whether the August 19, 2013 sua sponte
decision to stay execution of CR-12-560637-A outstanding bench trial
deliberation was reasonable; (2) a journal entry establishing the length
of the August 19, 2013 sua sponte executed stay of CR-12-560637-A
outstanding bench trial deliberation; and (3) a journal entry
establishing whether no just reason existed to delay the App.R. 4(A)
clock as required to resolve the outstanding sua sponte stay of CR-12-
560637-A bench trial deliberations pursuant to Civ.R. 54(B).
On September 15, 2022, respondent file a motion to dismiss Orr’s
complaint. There, respondent argued that the complaint was largely unintelligible,
but what could be discerned did not set forth a claim in procedendo. Further,
respondent argued that the complaint was defective because Orr failed to comply
with necessary provisions of R.C. 2969.25.1 On October 5, 2022, Orr filed a timely
brief in opposition to the motion to dismiss, styled “motion by relator to
procedurally oppose and exclude respondent’s unfactual/misleading conclusions
submitted for dismissal of the underlying action.” The same day, Orr filed a motion
to accept this filing, which was granted. To the extent that Orr’s filing in opposition
seeks to strike any portion of respondent’s motion to dismiss, the motion is denied.
The remainder of the arguments contained within the brief in opposition are
addressed below.
II. Law and Analysis
A. Standard for Writ of Procedendo
“A writ of procedendo is proper when a court has either refused to
enter a judgment or unnecessarily delayed proceeding to judgment.” McDougald v.
Kuhn, 162 Ohio St.3d 619, 2020-Ohio-4924, 166 N.E.3d 1163, ¶ 11, citing State ex
rel. Culgan v. Collier, 135 Ohio St.3d 436, 2013-Ohio-1762, 988 N.E.2d 564, ¶ 7. A
successful complaint for writ of procedendo must show that (1) the relator has a clear
1 Respondent also argued that Orr failed to file the affidavits required by R.C.
2969.25(C) that must include a statement from an inmate’s prison account when an inmate
seeks to file an action without paying the filing fee. However, Orr paid the filing fee.
Therefore, the provisions of R.C. 2969.25(C) are inapplicable.
legal right to proceed, (2) the respondent has a clear legal duty to proceed, and
(3) the relator has no other adequate remedy in the ordinary course of the law. Id.,citing Culgan.
The case is before the court on respondent’s motion to dismiss.
Pursuant to Civ.R. 12(B)(6), a court may dismiss a complaint where it appears
beyond doubt, after presuming the allegations in the complaint are true and drawing
all reasonable inferences in favor of the nonmoving party, that relators can prove no
set of facts that would entitle them to the relief sought. State ex rel. Neff v. Corrigan,
75 Ohio St.3d 12, 661 N.E.2d 170 (1996).
B. Journalization of Stay/Continuance
From the assertions in the complaint, it appears that Orr claims that
after respondent adjourned court to deliberate before announcing a decision in the
criminal case, respondent could not take further judicial actions in any other
proceedings until he decided Orr’s guilt or innocence unless respondent journalized
a continuance or stay. It is unclear where this notion originates, and Orr’s citations
to statutes, rules of court, and prior cases do not help with this determination. For
support, Orr points to the following page attached to his complaint that is
purportedly from the trial transcript:
THE COURT: Once again, please go through the exhibits and make
sure that I have all of them. I’m going to take some time to deliberate
and let you know when I have a verdict.
Mr. Orr, you have another case pending as well. We will set that for a
pretrial with the prosecutor handling that case in the next week or so,
so we can begin to figure out when we can resolve or try that case.
MR. ORR: Yes, Your Honor. Yes, sir.
THE COURT: We are in recess.
Orr claims that this shows that respondent stayed the “deliberation cycle” or case.
As Orr’s complaint indicates, after the close of evidence and closing
arguments, respondent adjourned court to deliberate on August 19, 2013.
Respondent announced the verdicts in the case in open court on September 19,
2013, as evidenced by a journal entry attached to the complaint in the instant action.
Orr’s claim is not cognizable in procedendo. Orr appears to assert
that an unjournalized stay or continuance somehow deprived the court of
jurisdiction in his criminal case. He also requests “this court * * * to make a [de
novo] determination as to whether relator is entitled to receive technicality release
behind the excessive nine[-]year delay in journalizing and resolving his stayed
deliberation cycle of prosecution for no disclosed reason.” However, these are not
proper claims for procedendo. Procedendo is a means of compelling a judge to
proceed to judgment. “‘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. Knox v. Russo, 8th Dist. Cuyahoga Nos. 102859 and 103003, 2015-
Ohio-3773, ¶ 7, quoting State ex rel. Davey v. Owen, 133 Ohio St. 96, 106, 12 N.E.2d
144 (1937).
Judgment was rendered in Orr’s underlying criminal case. According
to the December 2, 2013 sentencing entry attached to Orr’s complaint, Orr was
found guilty of several crimes and sentenced on November 27, 2013. Orr appealed
his convictions, which were affirmed. State v. Orr, 8th Dist. Cuyahoga No. 100841,
2014-Ohio-4680.
Respondent has proceeded to judgment in the underlying criminal
case, and Orr has not established that he has a legal right to have respondent
journalize a stay order in the case or that respondent has a legal duty to do so.2 The
failure to properly journalize a continuance, if that is what Orr is arguing, is an error
that could have been raised on appeal from his convictions. Orr did not raise this
argument in his direct appeal.3 He cannot now attempt to use a writ as a substitute
for a timely appeal. State ex rel. Daniels v. Russo, 156 Ohio St.3d 143, 2018-Ohio-
5194, 123 N.E.3d 1011, ¶ 24, citing State ex rel. Richfield v. Laria, 138 Ohio St.3d
168, 2014-Ohio-243, 4 N.E.3d 1040, ¶ 11; State ex rel. West v. Price, 62 Ohio St.2d
143, 144, 404 N.E.2d 139 (1980); State ex rel. Wilson v. Lawrence Cty. Court of
Common Pleas, 146 Ohio St. 4, 5, 63 N.E.2d 438 (1945). Orr had an adequate
remedy at law where he could have raised this issue in his direct appeal but failed to
do so. For all these reasons, relief in procedendo is not available to Orr.
In portions of the complaint, Orr claims he was prejudiced by delay
in the announcement of verdicts, citing to State v. Jackson, 8th Dist. Cuyahoga No.
2 Indeed, respondent may lack jurisdiction to do so after the final order of conviction
was journalized.
3 Orr raised a constitutional and statutory speedy-trial claim in his direct appeal but
did not advance this argument. See Orr at ¶ 100-111.
80398, 2002-Ohio-4576 (involving issuing findings of fact and conclusions of law
when denying a postconviction relief petition); State v. Lee, 48 Ohio St.2d 208, 357
N.E.2d 1095 (1976) (dealing with speedy-trial rights and continuances); State v.
Geraldo, 13 Ohio App.3d 27, 468 N.E.2d 328 (6th Dist.1983) (requirements for
properly journalizing a continuance prior to trial); Cleveland v. Austin, 55 Ohio
App.2d 215, 380 N.E.2d 1357 (8th Dist.1978) (speedy trial). These cases have little
to do with Orr’s claimed breach of respondent’s duty. They generally involve an
accused’s right to be brought to trial within a certain period and discuss the
docketing of continuances prior to trial. See also R.C. 2945.71 and 2945.72. These
cases are inapplicable to the present claim.
Orr also cites to R.C. 2945.02. This statute provides,
The court of common pleas shall set all criminal cases for trial for a day
not later than thirty days after the date of entry of the plea of the
defendant. No continuance of the trial shall be granted except upon
affirmative proof in open court, upon reasonable notice, that the ends
of justice require a continuance.
No continuance shall be granted for any other time than it is
affirmatively proved the ends of justice require.
Whenever any continuance is granted, the court shall enter on the
journal the reason for the same.
Criminal cases shall be given precedence over civil matters and
proceedings. The failure of the court to set such criminal cases for trial,
as required by this section, does not operate as an acquittal, but upon
notice of such failure or upon motion of the prosecuting attorney or a
defendant, such case shall forthwith be set for trial within a reasonable
time, not exceeding thirty days thereafter.
Orr appears to be under the mistaken impression that this statute
prohibits a judge from engaging in any other judicial activity during the
deliberations phase of a criminal bench trial, apart from deciding the guilt or
innocence of the criminal defendant unless the judge journalizes a continuance in
open court. The statute contains no such prohibition. Sup.R. 40(A)(2) provides that
“[a]ll cases submitted for determination after a court trial shall be decided within
ninety days from the date the case was submitted.” Here, respondent decided the
case well within the 90-day timeframe specified in Sup.R. 40.4
Crim.R. 50, cited by Orr, is also not helpful to his claims. It states,
“Criminal cases shall be given precedence over civil matters and proceedings.” The
fact that respondent may have handled other matters, including civil matters, during
the approximately one-month period between submission of the case to respondent
and the announcement of verdicts in Orr’s criminal case does not lead to a
conclusion that the trial court was required to journalize a continuance in order to
do so.
Sup.R. 40 does not establish enforceable rights for litigants, but acts as a guideline
4
for judges. Culgan, 135 Ohio St.3d 436, 2013-Ohio-1762, 988 N.E.2d 564, at ¶ 11.
Respondent’s motion to dismiss is granted.5 Costs assessed against
relator. The clerk is directed to serve on the parties notice of this judgment and its
date of entry upon the journal. Civ.R. 58(B).
Complaint dismissed.
________________________________________
FRANK DANIEL CELEBREZZE, III, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and
MARY EILEEN KILBANE, J., CONCUR
5 The court also notes that Orr’s affidavit of prior civil actions required by R.C.
2969.25(A) fails to strictly comply with this statute because the descriptions of prior actions
do not include the names of the parties to the actions. R.C. 2969.25(A)(3). For instance,
two descriptions list the respondent simply as “Warden” without providing any names of
the respondents. This provides a separate basis on which to deny the requested relief. See
State ex rel. Bey v. Loomis, 165 Ohio St.3d 267, 2021-Ohio-2066, 178 N.E.3d 468; State ex
rel. Pointer v. Ohio Adult Parole Auth., Slip Opinion No. 2022-Ohio-3261, ¶ 8.