State ex rel. Hubbard v. Bruzzese

[Cite as State ex rel. Hubbard v. Bruzzese, 2020-Ohio-238.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
JEFFERSON COUNTY
STATE EX REL. WILLIE HUBBARD,
Relator,
v.
JUDGE JOSEPH BRUZZESE, JR.,
Respondent.
OPINION AND JUDGMENT ENTRY
Case No. 19 JE 0001
Writ of Procedendo
BEFORE:
David A. D’Apolito, Cheryl L. Waite, Carol Ann Robb, Judges.
JUDGMENT:
Dismissed.
State ex rel. Willie Hubbard, Pro Se, #399-917, P.O. Box 57, Marion, Ohio 43301, Relator,
and
Atty. Jane M. Hanlin, Jefferson County Prosecutor, Jefferson County Justice Center,
16001 State Route 7, Steubenville, Ohio 43952, for Respondent.
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Dated: January 21, 2020
PER CURIAM.
{¶1} Relator Willie Hubbard, proceeding on his own behalf, has filed this original
action for a writ of procedendo seeking to have this Court compel Respondent Joseph
Bruzzese, Jr., rule on his motion for resentencing. Respondent has filed an answer,
pointing out that the matter is now moot.
{¶2} As background, in 1997, Relator was involved in a gang shooting which
resulted in the death of rival gang member. In 2001, following a jury trial, Relator was
convicted of complicity to commit murder, attempted murder, felonious assault, and
aggravated riot. The trial court sentenced Relator to an aggregate sentence of nineteen
years to life imprisonment. On direct appeal, this Court affirmed Relator’s conviction and
sentence. State v. Hubbard, 150 Ohio App. 3d 623, 2002-Ohio-6904, 782 N.E.2d 674 (7th
Dist.).
{¶3} On June 11, 2018, Relator filed in the trial court a motion for resentencing.
Approximately three and half months later and having received no response, Relator filed
a motion for judgment on the pleading. Relator then filed the present original action in
this Court seeking a writ of procedendo to compel Respondent to rule on his June 11,
2018 motion.
{¶4} Generally, a petitioner may file for a writ of mandamus or for a writ of
procedendo to compel a court to rule on a pending motion. However, “procedendo is an
extraordinary remedy which is to be exercised with caution and only when the right is
clear. It should not be used in doubtful cases.” (Citation omitted.) Pankey v. Mahoning
Cty. Court of Common Pleas, 7th Dist. Mahoning No. 13 MA 27, 2013-Ohio-1617, ¶ 2.
To be entitled to a writ of procedendo, “a relator must establish a clear legal right to require
the court to proceed, a clear legal duty on the part of the court to proceed, and the lack
of an adequate remedy in the ordinary course of law.” State ex rel. Miley v. Parrott, 77
Ohio St. 3d 64, 65, 671 N.E.2d 24 (1996).
{¶5} As counsel for Respondent correctly notes, this original action is now moot.
In March 2019, Respondent set a hearing for Relator’s motion, appointed him counsel,
Case No. 19 JE 0001
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and ordered his return from prison for the hearing. Following the hearing, the trial court
filed a supplemental sentencing order.
{¶6} Since the trial court has held a hearing and ruled on Relator’s June 11, 2018
motion for resentencing, this original action is now moot. “Neither procedendo nor
mandamus will compel the performance of a duty that has already been performed.”
Martin v. Judges of the Lucas Cty. Court of Common Pleas, 50 Ohio St. 3d 71, 72, 552
N.E.2d 906 (1990). As such, Relator’s original action for writ of procedendo is hereby
dismissed as moot.
{¶7} Final order. Clerk to service notice as provided by the Rules of Civil
Procedure. Costs taxed to Relator.
JUDGE DAVID A. D’APOLITO
JUDGE CHERYL L. WAITE
JUDGE CAROL ANN ROBB
Case No. 19 JE 0001