[Cite as Gassaway v. Muskingum Cty. Common Pleas Court, 2019-Ohio-4197.]


                                     COURT OF APPEALS
                                 MUSKINGUM COUNTY, OHIO
                                 FIFTH APPELLATE DISTRICT


FRANKLIN L. GASSAWAY                           :           JUDGES:
                                               :
        Relator/Petitioner                     :           Hon., John W. Wise, PJ.
                                               :           Hon., Patricia A. Delaney, J.
                                               :           Hon., Earle E. Wise Jr., J.
-vs-                                           :
                                               :
MUSKINGUM COUNTY COMMON                        :           Case No. CT2019-0018
PLEAS COURT                                    :
                                               :
                                               :
                                               :
       Respondent                              :           OPINION



CHARACTER OF PROCEEDING:                                   Writ of Procedendo and
                                                           Writ of Mandamus


JUDGMENT:                                                  DENIED


DATE OF JUDGMENT:                                          October 7, 2019



APPEARANCES:

For Petitioner:                                            For Respondent:

Franklin L. Gassaway                                       D. Michael Haddox
A547-361                                                   Prosecuting Attorney
Belmont Correctional Institution                           Muskingum County
68518 Bannock Road                                         Taylor P. Bennington
St. Clairsville, OH 43950                                  Assistant Prosecuting Attorney
                                                           27 North 5th Street, Suite 43701
                                                           Zanesville, Ohio 43701
Delaney, J.

       {¶1}    On March 20, 2019, Franklin Gassaway filed a petition for Corrected Writ

of Procedendo. On this same date, he also filed a Verified Complaint for Writ of

Mandamus. In both documents, Mr. Gassaway requests the same relief. Namely, that he

be provided, at state expense, with a copy of transcripts and pleadings from case number

CR2006-0401. The Muskingum County Prosecutor filed a memorandum opposing Mr.

Gassaway’s writ.

       {¶2}   “A writ of procedendo is appropriate when a court has either refused to

render a judgment or has unnecessarily delayed proceeding to judgment.” State ex rel.

Sherrills v. Cuyahoga Cty. Court of Common Pleas, 72 Ohio St.3d 461, 462, 650 N.E.2d

899 (1995), citing State ex rel. Doe v. Tracy, 51 Ohio App.3d 198, 200, 555 N.E.2d 674

(12th Dist.1988). For a writ of procedendo to issue, relator must establish a clear legal

right to the relief requested and there must be no adequate remedy at law. Sherrills at

462, citing State ex rel. Brown v. Shoemaker, 38 Ohio St.3d 344, 345, 528 N.E.2d 188

(1988). Relator must also establish a clear legal duty on the part of the court to proceed

when the case is still at the pleading stage. Sherrills at 462. (Citations omitted.)

       {¶3}   Here, Mr. Gassaway does not allege that the trial court refused to rule on

his Motion for Preparation of Complete Transcript of Proceedings at State Expense that

he filed on September 17, 2018. Rather, Mr. Gassaway is dissatisfied with the fact that

the trial court denied his motion by way of a Judgment Entry filed on October 23, 2018.

Because the trial court ruled on his motion, Mr. Gassaway can prove no set of facts

establishing that he is entitled to extraordinary relief under a writ of procedendo.
       {¶4}   Further, Mr. Gassaway had an adequate remedy at law following the trial

court’s denial of his motion by way of a direct appeal. See State v. Hewitt, 5th Dist. Stark

No. 2016CA00067, 2016-Ohio-5762, ¶14, where this Court determined the denial of a

motion for transcripts, at state expense, is a final, appealable order.

       {¶5}   Further, this same conclusion is reached even if the Court addresses Mr.

Gassaway’s complaint as one for mandamus. For a writ of mandamus to issue, relator

must have a clear legal right to the relief prayed for, respondent must be under a clear

legal duty to perform the requested act, and relator must have no plain and adequate

remedy in the ordinary course of law. (Citations omitted.) State ex rel. Berger v.

McMonagle, 6 Ohio St.3d 28, 29, 451 N.E.2d 225 (1983). For the same reason stated

above, Mr. Gassaway had an adequate remedy at law by way of appeal and therefore,

he is also not entitled to relief under a writ of mandamus.

       {¶6}   Finally, we address Mr. Gassaway’s argument that he needs copies of the

transcript and trial court pleadings so he can perfect post-conviction filings that cannot be

filed without these documents. Verified Complaint, Mar. 20, 2019, ¶5. In Hewitt, this Court

explained that an indigent prisoner is entitled to relevant portions of a transcript upon

appeal or in seeking post-conviction relief. Hewitt at ¶ 16. (Citation omitted.) However,

one limitation is that the appeal or post-conviction action must be pending at the time the

transcript is sought. Id., citing State ex rel. Partee v. McMahon, 175 Ohio St. 243, 245,

193 N.E.2d 266 (1963); State ex rel. Catlino v. Clerk of Courts, 9 Ohio St.2d 101, 224

N.E.2d 130 (1967); State ex rel. Clark v. Marshall, 63 Ohio St.2d 107, 406 N.E.2d 1128

(1980). As pled, there is no indication that Mr. Gassaway currently has a post-conviction
action pending. Therefore, this too serves as an independent basis to deny the requested

extraordinary relief.

       {¶7}   For the foregoing reasons, Mr. Gassaway’s writ of procedendo and/or

mandamus is denied.

       {¶8}   The clerk of courts is hereby directed to serve upon all parties not in default

notice of this judgment and its date of entry upon the journal. See Civ.R. 58(B).
