State ex rel. Lemons v. KontosState ex rel. Lemons v. Kontos
Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 44481-1092 (For Respondent).
O P I N I O N
MARY JANE TRAPP, P.J.
{¶1} This action in procedendo is presently before this court for final disposition of the motion to dismiss of respondent, Judge Peter J. Kontos of the Trumbull County Court of Common Pleas. As the primary basis for his motion, Judge Kontos asserts that the petition of relator, Charles Lemons, III, fails to state a viable claim for a writ because his own allegations support the conclusion that there exists a separate legal proceeding he could maintain to obtain the identical relief requested in this action. For the following
{¶2} In bringing the instant original action, relator sought an order which would require Judge Kontos to enter final judgment in his favor as to criminal charges brought against him in Trumbull C.P. No. 2007-CR-806. In the first section of his petition, relator simply set forth a list of the various motions that had been filed on his behalf prior to his actual trial. These motions included two separate requests to dismiss the criminal case on the grounds that he had been denied his statutory right to a speedy trial. In referring to the motions, relator did not attempt to provide a summary of the arguments that had been raised before the trial court. Instead, the petition merely contended that, since his motions had been appropriate under the circumstances, he was entitled to the entry of a dismissal judgment regarding all charges.
{¶3} In the second section of his petition, relator alleged that the trial testimony of the purported victim was not sufficient to prove that he committed at least five of the charged offenses. In conjunction with this point, he appeared to challenge the fact that he was ultimately found guilty of two counts of rape even though no biological evidence was presented at trial. In light of this, relator again maintained that Judge Kontos had a legal duty to acquit him in the criminal case.
{¶4} In now claiming that relator’s petition should be subject to dismissal under
{¶5} In regard to the basic factual assertions upon which the motion to dismiss is predicated, this court would note that, although relator’s petition made reference to a jury trial, he did not admit that Judge Kontos had released the final sentencing judgment in the underlying case. Furthermore, our review of the motion to dismiss indicates that Judge Kontos did not attach any evidentiary materials in support of his assertions. As a result, when the scope of our review in this matter is limited to the petition for relief and the motion to dismiss, there appears to be a dispute concerning the exact status of the criminal case.
{¶6} As a general proposition, any determination on a
{¶7} In fact, such a review does indicate that a conviction has been entered in
{¶8} In order to be entitled to a writ of procedendo, the relator in such an action must be able to demonstrate, inter alia, that there is no alternative legal remedy which he could pursue under the circumstances. See Davis v. Camplese, 11th Dist. No. 2007-A-0082, 2008-Ohio-2509, at ¶12. In light of this basic requirement, the Supreme Court of Ohio has concluded that the writ will not lie when the relator had the ability to appeal a trial court’s determination, since a direct appeal constitutes an adequate legal remedy. State ex rel. Grove v. Nadel (1998), 84 Ohio St.3d 252.
{¶9} In other words, a procedendo action cannot be employed to challenge the underlying merits of a lower court’s decision because such a challenge can be raised as part of a direct appeal. See State ex rel. Sevayega v. McMonagle, 122 Ohio St.3d 54, 2009-Ohio-2367; Davis, 2008-Ohio-2509, at ¶12. Instead, the limited purpose of the writ is to require a lower court to go forward “when a court has either refused to render a judgment or has unnecessarily delayed proceeding to judgment.” State ex rel. Miley v. Parrott (1996), 77 Ohio St.3d 64, 65.
{¶10} In the instant matter, it has been established through judicial notice that Judge Kontos has already released a judgment of conviction against relator as part of the underlying criminal case; therefore, this matter does not involve a situation in which
{¶11} Since a reversal of a criminal conviction can be achieved through a direct appeal from Judge Kontos’ final judgment, relator had an adequate legal remedy when he filed this action. Under such circumstances, a writ of procedendo would never lie to compel any further action on Judge Kontos’ part.
{¶12} As this court has indicated on prior occasions, the dismissal of a claim in procedendo will be justified under
{¶13} For the stated reasons, the motion to dismiss of Judge Peter J. Kontos,
COLLEEN MARY O’TOOLE, J., concurs in judgment only,
DIANE V. GRENDELL, J., concurs in judgment with a Concurring Opinion.
{¶14} I concur in judgment only on the basis that the relator has an adequate legal remedy through the direct appeal of his conviction, currently pending before this court (Appellate Case No. 2009-T-0032). Davis v. Camplese, 11th Dist. No. 2007-A 0082, 2008-Ohio-2509, at ¶12 (“a writ of procedendo will not lie when an adequate remedy at law exists”). Since the absence of a legal remedy is a mandatory prerequisite for the writ, relator’s action lacks merit and dismissal is warranted. State ex rel. Weiss v. Hoover, 84 Ohio St.3d 530, 531-532, 1999-Ohio-422 (“to be entitled to a writ of procedendo, [relator] must establish *** the lack of an adequate remedy in the ordinary course of law”).
{¶15} On this basis, I concur in the ultimate decision to dismiss the Petition for Writ of Procedendo.