[Cite as State ex rel. Hough v. Saffold, 2011-Ohio-3477.]




          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                        No. 96468




                                STATE OF OHIO EX REL.,
                                  TERRANCE HOUGH
                                                            RELATOR

                                                      vs.

           HONORABLE SHIRLEY STRICKLAND SAFFOLD
                                                            RESPONDENT




                                            JUDGMENT:
                                            WRIT DENIED


                                 Writ of Mandamus and/or Procedendo
                                          Motion No. 442897
                                               2

                                        Order No. 445491

RELEASE DATE:           July 11, 2011

FOR RELATOR

Terrance M. Hough, Jr.
Inmate No. A550-442
Toledo Correctional Institution
2001 East Central Avenue
Toledo, Ohio 43608-0033


ATTORNEYS FOR RESPONDENT

William D. Mason
Cuyahoga County Prosecutor
By: James E. Moss
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113


MARY J. BOYLE, J.:

       {¶ 1} On March 1, 2011, the relator, Terrance Hough, commenced this mandamus

and/or procedendo action against the respondent, Judge Shirley Strickland Saffold, to compel

the judge to issue final, appealable orders for (1) a denial of a motion to recuse herself, and (2)

a denial of a motion to supplement a postconviction relief petition in the underlying case, State

v. Hough, Cuyahoga County Common Pleas Court Case No. CR-499308. The respondent

moved for summary judgment on March 17, 2011, and Hough filed his reply brief on April 1,
                                                3

2011.    For the following reasons, this court grants the respondent’s motion for summary

judgment and denies the application for a writ of mandamus or procedendo.

                              Factual and Procedural Background

         {¶ 2} In the underlying case in May 2008, a jury convicted Hough of three counts of

aggravated murder and two counts of attempted murder, all with three-year firearm

specifications, and the trial court sentenced him to three consecutive sentences of life without

parole, consecutive to two consecutive ten-year sentences and consecutive to three years for

the firearm specifications.       The docket of the underlying case shows the following: On

December 30, 2009, Hough filed his first postconviction relief petition along with a motion to

amend.      On January 7, 2010, the trial court denied both the postconviction relief petition

and the motion to amend.          On July 16, 2010, Hough filed a second postconviction relief

petition, which the trial court denied on August 4, 2010.        On September 9, 2010, Hough

moved the trial court to issue findings of fact and conclusions of law.     Then on September

22, 2010, he moved for Judge Saffold to recuse herself and moved to supplement the

postconviction relief petition.     Judge Saffold issued findings of fact and conclusions of law

on October 5, 2010.     She denied the motion to recuse herself and the motion to supplement

the postconviction relief petition on October 7, 2010.
                                              4

          {¶ 3} Hough appealed these decisions in State v. Hough, Cuyahoga County Court of

Appeals Case No. 95954.       This court sua sponte dismissed this appeal for lack of a final,

appealable order pursuant to R.C. 2505.02 on November 8, 2010.          Hough then commenced

this mandamus and/or procedendo action to compel Judge Saffold to issue final, appealable

orders.

                                       Discussion of Law

          {¶ 4} The requisites for mandamus are well established: (1) the relator must have a

clear legal right to the requested relief, (2) the respondent must have a clear legal duty to

perform the requested relief, and (3) there must be no adequate remedy at law.      Additionally,

although mandamus may be used to compel a court to exercise judgment or to discharge a

function, it may not control judicial discretion, even if that discretion is grossly abused. State

ex rel. Ney v. Niehaus (1987), 33 Ohio St.3d 118, 515 N.E.2d 914.       Furthermore, mandamus

is not a substitute for appeal. State ex rel. Keenan v. Calabrese (1994), 69 Ohio St.3d 176,

631 N.E.2d 119; State ex rel. Daggett v. Gessaman (1973), 34 Ohio St.2d 55, 295 N.E.2d 659;

and State ex rel. Pressley v. Indus. Comm. of Ohio (1967), 11 Ohio St.2d 141, 228 N.E.2d

631, paragraph three of the syllabus.     Thus, mandamus does not lie to correct errors and

procedural irregularities in the course of a case. State ex rel. Jerninghan v. Gaughan (Sept.

26, 1994), Cuyahoga App. No. 67787.        Furthermore, if the relator had an adequate remedy,
                                               5

regardless of whether it was used, relief in mandamus is precluded. State ex rel. Tran v.

McGrath, 78 Ohio St.3d 45, 1997-Ohio-245, 676 N.E.2d 108, and State ex rel. Boardwalk

Shopping Ctr., Inc. v. Court of Appeals for Cuyahoga Cty. (1990), 56 Ohio St.3d 33, 564

N.E.2d 86. Moreover, mandamus is an extraordinary remedy which is to be exercised with

caution and only when the right is clear.    It should not issue in doubtful cases. State ex rel.

Taylor v. Glasser (1977), 50 Ohio St.2d 165, 364 N.E.2d 1; State ex rel. Shafer v. Ohio

Turnpike Comm. (1953), 159 Ohio St. 581, 113 N.E.2d 14; State ex rel. Connole v. Cleveland

Bd. of Ed. (1993), 87 Ohio App.3d 43, 621 N.E.2d 850; and State ex rel. Dayton-Oakwood

Press v. Dissinger (1940), 32 Ohio Law Abs. 308.

       {¶ 5} The writ of procedendo is merely an order from a court of superior jurisdiction

to one of inferior jurisdiction to proceed to judgment. Yee v. Erie County Sheriff’s Dept.

(1990), 51 Ohio St.3d 43, 553 N.E.2d 1354.         Procedendo is appropriate when a court has

either refused to render a judgment or has unnecessarily delayed proceeding to judgment.

State ex rel. Watkins v. Eighth Dist. Court of Appeals, 82 Ohio St.3d 532, 1998-Ohio-190,

696 N.E.2d 1079.     However, the writ will not issue to control what the judgment should be,

nor will it issue for the purpose of controlling or interfering with ordinary court procedure.

Thus, procedendo will not lie to control the exercise of judicial discretion.   Moreover, it will

not issue if the petitioner has or had an adequate remedy at law. State ex rel. Utley v. Abruzzo
                                              6

(1985), 17 Ohio St.3d 202, 478 N.E.2d 789; State ex rel. Hansen v. Reed (1992), 63 Ohio

St.3d 597, 589 N.E.2d 1324; and Howard v. Cuyahoga Cty. Probate Court, Cuyahoga App.

No. 84702, 2004-Ohio-4621 (petitioner failed to use an adequate remedy at law).

       {¶ 6} A trial judge’s denial of a motion to recuse is not an appealable order.          In

Beer v. Griffith (1978), 54 Ohio St.2d 440, 377 N.E.2d 775, the Supreme Court of Ohio ruled

that only the Chief Justice of the Supreme Court of Ohio or his designee may rule upon the

disqualification of a judge.   Thus, the Court of Appeals is without jurisdiction to rule upon

the disqualification of a judge, and that includes review of a motion to recuse.          State v.

Ramos (1993), 88 Ohio App.3d 394, 623 N.E.2d 1336; State v. Cody, Cuyahoga App. No.

95753, 2011-Ohio-2289; and State v. Scruggs, Cuyahoga App. No. 94518, 2010-Ohio-5604.

Therefore, Hough does not have a clear, legal right to a final, appealable order for a motion to

recuse, and the trial judge has no duty to issue one.    Furthermore, Judge Saffold ruled on the

motion.   Neither mandamus nor procedendo will lie for this matter.

       {¶ 7} As to the motion to supplement the postconviction relief petition, the respondent

judge fulfilled her duty by ruling on the motion.       There is no duty to issue findings of fact

and conclusions of law for untimely or successive postconviction relief petitions, much less

motions to supplement such petitions. State ex rel. Kimbrough v. Greene, 98 Ohio St.3d 116,

2002-Ohio-7042, 781 N.E.2d 155; State ex rel. Workman v. McGrath (1980), 40 Ohio St.3d
                                             7

91, 532 N.E.2d 105; and State ex rel. Jefferson v. Russo, Cuyahoga App. No. 90682,

2008-Ohio-135.    Thus, Hough has not established a clear, legal duty or a clear, legal right to

a more complete ruling on the motion to supplement.        Moreover, Hough had an adequate

remedy at law by seeking appeal to the Supreme Court of Ohio.

       {¶ 8} Accordingly, this court grants the respondent’s motion for summary judgment

and denies the application for a writ of mandamus and/or procedendo.

Costs assessed against relator.   This court directs the clerk of court for the Eighth District

Court of Appeals to serve upon the parties notice of this judgment and its date of entry upon

the journal. Civ.R. 58(B).




____________________________
MARY J. BOYLE, JUDGE

MELODY J. STEWART, P.J., and
SEAN C. GALLAGHER, J., CONCUR
