[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
