STATE EX REL. LARRY JOHNSON, Relator, v. JUDGE ANTHONY M. D‘APOLITO, Respondent.
Case Nos. 21 MA 0095, 21 MA 0105
IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT MAHONING COUNTY
June 28, 2022
2022-Ohio-2341
Writ of Procedendo/Mandamus
BEFORE: Cheryl L. Waite, Gene Donofrio, Carol Ann Robb, Judges.
JUDGMENT: Dismissed.
Larry Johnson, Pro se, #670-089, Allen Correctional Institution, P.O. Box 4501, Lima, Ohio 45802, Relator, and
Atty. Paul J. Gains, Mahoning County Prosecutor and Atty. Edward A. Czopur, Assistant Prosecutor, Mahoning County Prosecutor‘s Office, 21 West Boardman Street., 6th Floor, Youngstown, Ohio 44503, for Respondent.
PER CURIAM.
{¶2} In 2014, a Grand Jury returned a three-count indictment charging Petitioner with murder, aggravated murder, and robbery in the Mahoning County Court of Common Pleas, case no. 2014 CR 00020. Beginning in 2015, Judge Shirley J. Christian took over as the judge presiding over Petitioner‘s case. Judge Christian was one of five judges that comprised the General Division of the Mahoning County Court of Common Pleas and is named as the sole party respondent in this petition.
{¶3} In March of 2015, Petitioner entered into a negotiated plea agreement with the state pursuant to
{¶4} Over six years later, and now proceeding on his own behalf, Petitioner filed a motion challenging the subject matter jurisdiction of the trial judge. The motion, filed on May 10, 2021, was assigned to Judge Anthony M. D‘Apolito who succeeded Judge
{¶5} Relator captioned this original action as a combined petition for a writ of mandamus/procedendo. Although mandamus is technically available as an original action in cases involving a court‘s alleged undue delay in entering judgment, in recent years, the Ohio Supreme Court has reiterated its position favoring procedendo as the more appropriate action, since “[a]n inferior court‘s refusal or failure to timely dispose of a pending action is the ill a writ of procedendo is designed to remedy.” State ex rel. Levin v. Sheffield Lake, 70 Ohio St.3d 104, 110, 637 N.E.2d 319 (1994); State ex rel. Dehler v. Sutula, 74 Ohio St.3d 33, 35, 656 N.E.2d 332 (1995); State ex rel. Doe v. Gallia Cty. Common Pleas Court, 153 Ohio St.3d 623, 2018-Ohio-2168, 109 N.E.3d 1222, ¶ 14, reconsideration denied sub nom. Doe v. Gallia Common Pleas Court, 153 Ohio St.3d 1460, 2018-Ohio-3257, 104 N.E.3d 791.
{¶6} The Rules of Superintendence for the courts of Ohio provide that “[a]ll motions shall be ruled upon within one hundred twenty days from the date the motion was filed * * *.”
{¶7} However, in Culgan, the Court went on to explain how the rule should guide a court‘s consideration of a request to compel a ruling:
Sup.R. 40(A)(3) imposes on trial courts a duty to rule on motions within 120 days. Although the Rules of Superintendence do not provide litigants with a right to enforceSup.R. 40 , the rule does guide this court in determiningwhether a trial court has unduly delayed ruling on a motion for purposes of ruling on a request for an extraordinary writ. A court that takes more than 120 days to rule on a motion risks unduly delaying the case and, as here, risks our issuing writs of mandamus and/or procedendo to compel a ruling. That is not to say that claims in mandamus and/or procedendo automatically lie simply because a motion remains pending longer than 120 days. Other factors may dictate that a trial court take more time to rule on a motion. For example, a judge may require longer than 120 days to rule on a motion for summary judgment in a complex case. Other factors that might delay a ruling are the need for further discovery, the possibility of settlement, and other motions pending in the case. See State ex rel. Duncan v. DeWeese, 5th Dist. No. 2011- CA-67, 2011-Ohio-5194, 2011 WL 4625370, ¶ 4. This is not an exhaustive list; we cannot anticipate all the factors that might allow a court, acting within its proper discretion, to delay ruling on a motion past the 120 days commanded by the rule.
Id. at ¶ 11-12.
{¶8} Appellant‘s motion in this matter was filed on May 10, 2021. Here, while the trial did not rule on the motion within the 120-day period prescribed by law, Respondent issued a decision ruling on Relator‘s pending motion just twenty (20) days after Relator instituted this action. Included with Respondent‘s motion to dismiss is a copy of the file-stamped entry, rendering this original action in procedendo moot. State ex rel. Howard v. Skow, 102 Ohio St.3d 423, 811 N.E.2d 1128, 2004-Ohio-3652, ¶ 9 (explaining that the
{¶9} Relator‘s action seeking a writ of procedendo is hereby dismissed as moot. No costs assessed. Final order. Clerk to serve copies of this decision and judgment entry pursuant to the civil rules.
JUDGE CHERYL L. WAITE
JUDGE GENE DONOFRIO
JUDGE CAROL ANN ROBB