[Cite as Williams v. Russo, 2014-Ohio-1439.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100450
MICAH WILLIAMS
RELATOR
vs.
JUDGE JOHN R. RUSSO
RESPONDENT
JUDGMENT:
WRIT DENIED
Writ of Procedendo
Motion No. 470162
Order No. 472310
RELEASE DATE: March 28, 2014
FOR RELATOR
Micah Williams, pro se
Inmate No. 512-346
Marion Correctional Institution
940 Marion-Williamsport Road
Marion, OH 43302-0057
ATTORNEYS FOR RESPONDENT
Timothy J. McGinty
Cuyahoga County Prosecutor
By: James E. Moss
Assistant County Prosecutor
Justice Center - 9 Floor
ht
1200 Ontario Street
Cleveland, OH 44113
ii
KENNETH A. ROCCO, J.:
{¶1} Micah Williams has filed a complaint for a writ of procedendo,
with “alternative relief requested.” Williams advances a number of arguments
attacking his plea, conviction, sentence, and the court’s jurisdiction to preside
over his criminal case. However, he also seeks an order from this court
directing Judge John Russo to issue a ruling on his “motion to vacate or set
aside sentence judgment, and conviction” that was filed on April 22, 2013, in
State v. Williams, Cuyahoga C.P. No. CR-05-469067. Williams concedes in his
pleadings that a ruling on that motion would render “this Writ of Procedendo”
moot. Respondent has filed a motion for summary judgment indicating that
the writ is moot because the subject motion was denied by an order dated
November 1, 2013, and because Williams is not entitled to a writ of
procedendo on any of his remaining claims. Williams has not opposed
respondent’s motion for summary judgment. For the reasons that follow, we
grant Judge Russo’s motion for summary judgment.
{¶2} Respondent notes that Williams failed to comply with R.C.
2969.25, which requires the attachment of an affidavit to the complaint for a
writ of procedendo that describes each civil action or appeal filed within the
previous five years in any state or federal court. Williams’s failure to comply
with R.C. 2969.25 warrants the dismissal of the complaint for a writ of
procedendo. State ex rel. Zanders v. Ohio Parole Bd., 82 Ohio St.3d 421,
1998-Ohio-218, 696 N.E.2d 594; Alford v. Winters, 80 Ohio St.3d 285,
1997-Ohio-117, 685 N.E.2d 1242.
{¶3} The writ of procedendo is merely an order from a court of superior
jurisdiction to one of inferior jurisdiction to proceed to judgment. Yee v. Erie
Cty. Sheriff’s Dept., 51 Ohio St.3d 43, 553 N.E.2d 1354 (1990). Procedendo is
appropriate when a court has either refused to render a judgment or has
unnecessarily delayed proceeding to judgment. State ex rel. Watkins v. Eighth
Dist. Court of Appeals, 82 Ohio St.3d 532, 1998-Ohio-190, 696 N.E.2d 1079.
However, the writ will not issue to control what the judgment should be, nor
will it issue for the purpose of controlling or interfering with ordinary court
procedure. Thus, procedendo will not lie to control the exercise of judicial
discretion. Moreover, it will not issue when there is an adequate remedy at
law. State ex rel. Bd. of State Teachers Retirement Sys. of Ohio v. Davis, 113
Ohio St.3d 410, 2007-Ohio-2205, 865 N.E.2d 1289, ¶ 43 (“procedendo is not
appropriate when the party seeking the writ has an adequate remedy in the
ordinary course of law, e.g., appeal.”) Further, this court has no jurisdiction to
issue a declaratory judgment in an original action. State ex rel. Ormond v.
Solon, 8th Dist. Cuyahoga No. 92272, 2009-Ohio-1097, ¶ 10, fn. 3, citing,
State ex rel. Neer v. Indus. Comm., 53 Ohio St.2d 22, 371 N.E.2d 842 (1978).
{¶4} The attachment to the respondent’s summary judgment motion
establishes that Judge Russo has proceeded to judgment on the motion to
vacate sentence, judgment, and conviction. Respondent denied the motion and
specifically found that “any claim or argument with respect to subject matter
jurisdiction has been waived by [Williams’s] knowing, intelligent, and
voluntary guilty plea.” Williams has or had an adequate remedy at law to
challenge all of the remaining allegations of his pleading, including the
validity of the arrest warrant, the effectiveness of his representation, the
legality of his arrest, and the court’s exercise of jurisdiction over this matter.
In fact, Williams pursued a direct appeal and has appealed the trial court’s
order dated November 1, 2013.
{¶5} Respondent’s motion for summary judgment is granted and the
application for a writ of procedendo is denied. Costs assessed against relator,
however, costs are waived. This court further orders the Clerk of the Eighth
District Court of Appeals to serve notice of this judgment upon all parties as
required by Civ.R. 58(B).
{¶6} Writ denied.
_________________________________________
KENNETH A. ROCCO, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
Williams v. Russo
Combined Opinion