[Cite as Stevens v. Fleegle, 2017-Ohio-794.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
TREY A. STEVENS JUDGES:
Hon. Patricia A. Delaney, P.J.
Petitioner Hon. William B. Hoffman, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. CT2016-0039
HONORABLE JUDGE MARK C.
FLEEGLE
OPINION
Respondent
CHARACTER OF PROCEEDING: Procedendo
JUDGMENT: Writ Issued
DATE OF JUDGMENT ENTRY: March 3, 2017
APPEARANCES:
For Petitioner For Respondent
TREY A. STEVENS, PRO SE D. MICHAEL HADDOX
#A676-075 Prosecuting Attorney
Noble Correctional Institution Muskingum County, Ohio
15708 McConnelsville Road
Caldwell, Ohio 43724 By: GERALD V. ANDERSON II
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth St., P.O. Box 189
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2016-0039 2
Hoffman, J.
{¶1} Petitioner, Trey A. Stevens, has filed a Complaint for Writ of Procedendo
requesting Respondent be ordered to rule on a motion to vacate post release control
pending in the trial court. Respondent has in turn filed a motion to dismiss arguing he is
justified in not ruling on the motion.
{¶2} “To be entitled to a writ of procedendo, [a petitioner] must show 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 the law. State ex rel.
Sherrills v. Cuyahoga Cty. Court of Common Pleas, 72 Ohio St.3d 461, 462, 650 N.E.2d
899 (1995). A writ of procedendo is proper when a court has refused to enter judgment
or has unnecessarily delayed proceeding to judgment. State ex rel. Crandall, Pheils &
Wisniewski v. DeCessna, 73 Ohio St.3d 180, 184, 652 N.E.2d 742 (1995).” State ex rel.
Brown v. Luebbers, 137 Ohio St.3d 542, 2013-Ohio-5062, 1 N.E.3d 395, ¶ 10 (2013).
{¶3} “Sup.R. 40(A)(3) imposes on trial courts a duty to rule on motions within 120
days. State ex rel. Culgan v. Collier, 135 Ohio St.3d 436, 2013-Ohio-1762, 988 N.E.2d
564, ¶ 11. Although the Rules of Superintendence do not provide litigants with a right to
enforce Sup.R. 40, “ ‘procedendo and mandamus will lie when a trial court has refused to
render, or unduly delayed rendering, a judgment.’ ” Culgan at ¶ 10, quoting State ex rel.
Reynolds v. Basinger, 99 Ohio St.3d 303, 2003-Ohio-3631, 791 N.E.2d 459, ¶ 5; see also
State ex rel. Weiss v. Hoover, 84 Ohio St.3d 530, 532, 705 N.E.2d 1227 (1999).” State
ex rel. Brown v. Luebbers, 137 Ohio St.3d 542, 2013-Ohio-5062, 1 N.E.3d 395, ¶ 14
(2013).
Muskingum County, Case No. CT2016-0039 3
{¶4} The motion in this case has been pending since July 13, 2015, well over the
120 time frame imposed by Sup.R. 40(A)(3). Respondent argues it would be improper to
rule because he is waiting on guidance from a factually similar case currently pending in
the Supreme Court, State v. Grimes, Case No. 2016-0215. He believes the Supreme
Court’s acceptance of the Grimes appeal operates as a “de facto stay.” He further notes
one half of the judges on this Court will disagree with his ruling because this Court has
split on the issue presented in Petitioner’s motion. Respondent offers no authority for
these propositions.
{¶5} Once the trial court rules, either party may elect to appeal that judgment to
this Court. And once this Court rules, either party may elect to pursue appeal of our
judgment to the Ohio Supreme Court. While Grimes likely will resolve this issue, we find
Petitioner may well be prejudiced by the delay.
{¶6} We find the ruling on the July 13, 2015 motion has been unduly delayed,
therefore, we grant the writ of procedendo. Respondent shall forthwith enter a ruling on
Petitioner’s July 13, 2015 motion.
By: Hoffman, J.
Delaney, P.J. and
Wise, Earle, J. concur