THE STATE EX REL. POULTON, APPELLANT, v. COTTRILL, JUDGE, APPELLEE.
No. 2015-1755
Supreme Court of Ohio
Submitted July 12, 2016—Decided September 14, 2016.
147 Ohio St.3d 402 | 2016-Ohio-5789 | 66 N.E.3d 716
{¶ 13} Having thoroughly reviewed the record and considered Clifton‘s misconduct, the absence of aggravating factors, the applicable mitigating factors, and the sanctions that we have imposed in comparable cases, we find that a public reprimand is the appropriate sanction in this case.
{¶ 14} Accordingly, Parker Lee Clifton is hereby publicly reprimanded for the misconduct described herein. Costs are taxed to Clifton.
Judgment accordingly.
O‘CONNOR, C.J., and PFEIFER, O‘DONNELL, LANZINGER, KENNEDY, FRENCH, and O‘NEILL, JJ., concur.
Kenneth E. Peller, for relator.
Montgomery, Rennie & Jonson Co., L.P.A., George D. Jonson, and Brian M. Spiess, for respondent.
{¶ 1} We affirm the judgment of the Court of Appeals for the Fifth District dismissing a petition for a writ of procedendo filed by appellant, Adam C. Poulton. Poulton seeks a writ requiring appellee, Judge Kelly J. Cottrill, to rule on his motion to vacate or set aside the judgment of his conviction. However, as Judge Cottrill has ruled on his motion, Poulton‘s petition for a writ of procedendo is moot, and the court of appeals correctly dismissed it.
{¶ 2} To be entitled to a writ of procedendo, Poulton 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). Procedendo will not compel the performance of a duty that has already been performed. State ex rel. Kreps v. Christiansen, 88 Ohio St.3d 313, 318, 725 N.E.2d 663 (2000).
{¶ 3} After filing his complaint, Poulton filed a memorandum arguing that the complaint was not moot. The memorandum emphasized that although Judge Cottrill had ruled on his motion to vacate or set aside the judgment of his conviction, she had not issued findings of fact and conclusions of law. However, because he did not provide a copy of the entry to the court of appeals, that court could not determine whether Judge Cottrill had issued findings of fact and conclusions of law. Poulton filed another motion including a copy of the entry, but the court of appeals denied the motion.
{¶ 4} Judge Cottrill did not refuse to enter judgment. Rather, Poulton is dissatisfied with the entry that she issued. A writ of procedendo is therefore inappropriate. Moreover, Poulton had an adequate remedy in the ordinary course of the law by way of appeal of the entry. State ex rel. Roberts v. Marsh, 142 Ohio St.3d 481, 2014-Ohio-5242, 33 N.E.3d 6, ¶ 4, 5 (appeal is an adequate alternative remedy precluding a writ of procedendo). We therefore affirm the judgment of the court of appeals.
{¶ 5} Poulton also filed in this court a motion for default judgment, asserting that Judge Cottrill failed to file a merit brief here. We deny Poulton‘s motion because Judge Cottrill did, in fact, timely file a merit brief in this court and, in
{¶ 6} Finally, Poulton requests oral argument. Oral argument in a direct appeal is discretionary.
Judgment affirmed.
O‘CONNOR, C.J., and PFEIFER, O‘DONNELL, LANZINGER, KENNEDY, FRENCH, and O‘NEILL, JJ., concur.
Adam C. Poulton, pro se.
D. Michael Haddox, Muskingum County Prosecuting Attorney, and Gerald V. Anderson II, Assistant Prosecuting Attorney, for appellee.