[Cite as State ex rel. Atwater v. Gall, 2014-Ohio-3928.]


                  Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                        No. 101483



                              STATE OF OHIO, EX REL.
                                JOSEPH ATWATER

                                                                  RELATOR

                                                       vs.

                           STEVEN E. GALL, JUDGE,
                          COURT OF COMMON PLEAS
                                                                  RESPONDENT




                                            JUDGMENT:
                                            WRIT DENIED


                                             Writ of Procedendo
                                             Motion No. 476119
                                             Order No. 477481

        RELEASE DATE: September 9, 2014
FOR RELATOR

Joseph Atwater, pro se
R.C.I., No. 420-399
P.O. Box 8107
Mansfield, Ohio 44901

ATTORNEYS FOR RESPONDENT

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: James E. Moss
Assistant County Prosecutor
9th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, A.J.:

       {¶1} On June 4, 2014, the relator, Joseph Atwater, commenced this procedendo

action to compel a ruling on his motion to merge allied offenses, which he filed on

November 4, 2013, in the underlying case, State v. Atwater, Cuyahoga C.P. No.

CR-01-409121-ZA.1 On June 25, 2014, the respondent moved for summary judgment

on the grounds of mootness. Attached to the respondent’s dispositive motion was a copy

of a certified November 11, 2013 journal entry in which the respondent denied the motion

to merge allied offenses.       On July 25, 2014, Atwater filed a brief in opposition.

Atwater argues that the motion for summary judgment is invalid because Judge Timothy

McGinty was the originally assigned judge and presided over the case, and Atwater now

refuses to waive any potential conflict of interest.2 Atwater also argues that the state

received extensions of time to respond to his motion after November 11, 2013; therefore,

the journal entry cannot be binding.       Atwater also seeks to cure various filing defects,

such as including a prison cashier’s affidavit and Loc.R. 45 affidavit.        Nevertheless, the

November 11, 2013 journal entry establishes that the respondent proceeded to judgment

on the subject motion, and this matter is moot.


       1  Atwater named Judge Daniel Gaul as the respondent. However, Judge Steven Gall is the
judge assigned to the underlying case. Accordingly, this court substitutes Judge Steven Gall as the
respondent.

       2 In October 2001, Atwater pleaded guilty to involuntary manslaughter with a three-year
firearm specification and attempted murder. The court imposed a 20-year sentence. Timothy
McGinty is now the Cuyahoga County prosecutor.
      {¶2} Accordingly, this court grants the respondent’s motion for summary

judgment and denies the application for a writ of procedendo.        Relator to pay costs.

This court directs the clerk of courts to serve all parties notice of this judgment and its

date of entry upon the journal as required by Civ.R. 58(B).

       {¶3} Writ denied.



_____________________________________________
MARY J. BOYLE, ADMINISTRATIVE JUDGE

FRANK D. CELEBREZZE, JR., J., and
SEAN C. GALLAGHER, J., CONCUR
