[Cite as Staffrey v. D'Apolito, 2018-Ohio-4193.]



             IN THE COURT OF APPEALS OF OHIO
                              SEVENTH APPELLATE DISTRICT
                                  MAHONING COUNTY

                  STATE OF OHIO ex rel. DANIEL STAFFREY, SR.,

                                                    Relator,

                                                       v.

                                     JUDGE LOU D’APOLITO,

                                               Respondent.


                        OPINION AND JUDGMENT ENTRY
                                          Case No. 18 MA 0038


                                            Writ of Procedendo

                                          BEFORE:
                   Cheryl L. Waite, Gene Donofrio, Carol Ann Robb, Judges.



                                                   JUDGMENT:
                                                    Dismissed.


Daniel Staffrey, Sr., Pro se, #A332-476, Grafton Correctional Institution, 2500 South
Avon Belden Road, Grafton, Ohio 44044.

Atty. Paul J. Gains, Mahoning County Prosecutor and
Atty. Ralph M. Rivera, Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503, Respondent.

                                        Dated: October 12, 2018



PER CURIAM.
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       {¶1}   Relator Daniel Staffrey Sr., proceeding on his own behalf, has filed a

complaint for a writ of procedendo asking this Court to compel Respondent Judge Lou

D’Apolito of the Mahoning County Common Pleas Court to rule on his June 12, 2017

petition for postconviction relief. Counsel for Respondent has filed a motion to dismiss

indicating that Respondent has already ruled on the petition, and attached a copy of a

April 27, 2018 judgment entry denying the petition.

       {¶2}   In 1995, the Mahoning County Grand Jury indicted Relator on charges of:

rape in violation of R.C. 2907.02(A)(2); attempted aggravated murder in violation of R.C.

2923.02(A) and R.C. 2903.01(A); kidnapping in violation of R.C. 2905.01(A)(4); and

aggravated burglary in violation of R.C. 2911.11(A)(3). All counts were first degree

felonies and were accompanied by firearm specifications.

       {¶3}   Relator and the State of Ohio, represented by the Mahoning County

Prosecutor’s Office, reached a Crim.R. 11(F) plea agreement. The state agreed to drop

all of the firearm specifications and remain silent as to a sentencing recommendation.

In exchange, Relator pleaded guilty to rape, attempted aggravated murder, kidnapping,

and aggravated-burglary.     In a December 11, 1996 judgment entry, the trial court

sentenced Relator to ten to twenty-five years on each of the rape, kidnapping, and

aggravated-burglary counts, to run concurrently, and five to twenty-five years on the

attempted-aggravated-murder count, to run consecutively. The entry twice mentioned a

plea form but did not disclose whether Relator pleaded guilty or no contest.

       {¶4}   Relator then pursued a direct appeal of his conviction and sentence in this

Court. During the pendency of his direct appeal, Relator filed a petition in the trial court

for postconviction relief pursuant to R.C. 2953.21 on July 23, 1997. He presented five




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claims for relief, one premised on ineffective assistance of trial counsel and the other

four premised on the trial court’s failure to sentence him pursuant to Senate Bill 2, which

substantially amended Ohio’s felony sentencing scheme for crimes committed on or

after its effective date, July 1, 1996. Shortly thereafter, the state responded to Relator’s

petition for postconviction relief with a summary judgment motion.

       {¶5}   Meanwhile, this Court affirmed Relator’s conviction and sentence. State v.

Staffrey, 7th Dist. No. 96 CA 246, (June 25, 1999). Thereafter, on July 28, 2000, the

trial court granted the state’s summary judgment motion as to Relator’s 1997 petition for

postconviction relief, dismissed the petition, and issued findings of fact and conclusions

of law.   The court noted Relator’s claim of ineffective assistance of counsel was

supported only by his own self-serving declarations or affidavits which were insufficient

to rebut the record before the court. As to Relator’s remaining four claims concerning

the trial court’s failure to sentence him pursuant to Senate Bill 2, the court cited well-

settled Ohio Supreme Court precedent that Senate Bill 2 applies to crimes committed

on or after its effective date, July 1, 1996, and noted Relator’s crimes were committed

prior to that date.    Relator did not appeal the trial court’s July 28, 2000 decision

dismissing his petition for postconviction relief.

       {¶6}   In June of 2009, Relator filed in the trial court a motion entitled, “Motion to

Withdraw Guilty Plea (Crim.R.32.1); Motion for Resentencing, Request for Hearing.”

The motion argued that Relator would not have pled guilty if he knew he would receive

an indefinite sentence and that shock probation or judicial release was not available to

him. The motion also argued that pursuant to State v. Baker, 119 Ohio St.3d 197,




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2008-Ohio-3330, 893 N.E.2d 163, the trial court’s judgment of conviction did not

constitute a final order because it failed to comply with Crim.R. 32(C).

        {¶7}   Since the trial court did not immediately rule on the motion, Relator filed in

this Court a petition for a writ of mandamus and procedendo against the trial judge. We

denied the petition on procedural grounds due to the failure to simultaneously provide

an affidavit of prior civil actions as required by R.C. 2969.25(A). State ex rel. Staffrey v.

Mahoning Cty. Court of Common Pleas, 7th Dist. 09-MA-194, 2010-Ohio-616.

        {¶8}   In 2010, Relator refiled an apparently procedurally compliant petition for a

writ of mandamus and procedendo and this Court granted the writ in part. State ex rel.

Staffrey v. D’Apolito, 188 Ohio App.3d 56, 2010-Ohio-2529, ¶ 27 (7th Dist.). We held

that the trial court’s judgment of conviction was not a final appealable order because it

did not state the means of conviction and thus, it did not comply with Crim.R. 32 or

Baker. Id. at ¶ 24. We stated that Relator was entitled to a revised sentencing entry

that complies with Crim.R. 32 and Baker. Id. at ¶ 26. We also ordered the court to rule

on the motion to withdraw the guilty plea. Id. at ¶ 27.

        {¶9}   On July 9, 2010, the trial court reissued the December 11, 1996

sentencing order and included the means of conviction, which complied with the

mandates of Crim.R. 32 and Baker. A few days after the revised sentencing order, the

trial court overruled the motion to withdraw the guilty plea and this Court affirmed the

trial court’s decision in that regard. State v. Staffrey, 7th Dist. 10 MA 130, 2011-Ohio-

5760.

        {¶10} Proceeding on his own behalf, Relator filed in the trial court a successive

petition for postconviction relief on June 12, 2017, in which he argues his trial counsel




Case No. 18 MA 0038
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coerced him into rejecting a 9-year-term-of-imprisonment plea offer.         Approximately

seven months later, he also filed a motion requesting the court to conduct a hearing on

his petition and issue findings of fact and conclusions of law.

       {¶11} Again proceeding on his own behalf, on March 30, 2018 Relator filed in

this Court the subject of the present action, his complaint for a writ of procedendo

seeking to compel Respondent to rule on his June 12, 2017 petition for postconviction

relief. Meanwhile, in the trial court below, the state filed a motion for judgment on the

pleadings on April 5, 2018, and the trial court filed a judgment entry on April 30, 2018

dismissing Relator’s petition for postconviction relief as untimely or, in the alternative,

barred by the doctrine of res judicata.

       {¶12} In the present proceedings, the state has now filed a combined answer

and motion to dismiss citing to and attaching the trial court’s April 30, 2018 judgment

entry dismissing Relator’s petition for postconviction relief.

       {¶13} Generally, a petitioner may file for a writ of mandamus or for a writ of

procedendo to compel a court to rule on a pending motion. However, “procedendo is an

extraordinary remedy which is to be exercised with caution and only when the right is

clear. It should not be used in doubtful cases.” (Citation omitted.) Pankey v. Mahoning

Cty. Court of Common Pleas, 7th Dist. No. 13 MA 27, 2013-Ohio-1617, ¶ 2. In order to

be entitled to a writ of procedendo, “a relator must establish 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 law.” State ex rel. Miley v. Parrott, 77

Ohio St.3d 64, 65, 671 N.E.2d 24 (1996).




Case No. 18 MA 0038
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      {¶14} As counsel for Respondent points out in their combined answer and

motion to dismiss, Respondent ruled on Relator’s motion on April 30, 2018, during the

pendency of this matter. Respondent has attached as an exhibit to their combined

answer and motion to dismiss a copy of the trial court’s April 30, 2018 judgment entry

dismissing Relator’s June 12, 2017 petition for postconviction relief.    Relator has

pursued an appeal of the trial court’s April 30, 2018 judgment entry and this appeal

remains pending under appellate case no. 18 MA 0061.

      {¶15} Since the trial court has ruled on his petition for postconviction relief,

Relator’s petition for a writ of procedendo before this Court is moot.        “Neither

procedendo nor mandamus may compel appellees to perform a duty already

performed.” Martin v. Judges of the Lucas Cty. Court of Common Pleas, 50 Ohio St.3d

71, 72, 552 N.E.2d 906 (1990). As such, Relator’s petition for writ of procedendo is

hereby dismissed as moot.

      {¶16} Final order.    Clerk to service notice as provided by the Rules of Civil

Procedure. Costs taxed to Petitioner.



JUDGE GENE DONOFRIO


JUDGE CHERYL L. WAITE


JUDGE CAROL ANN ROBB




Case No. 18 MA 0038
