[Cite as State ex rel. Elkins v. Fais, 2014-Ohio-3886.]


                               IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT

State of Ohio ex rel. David Elkins,                       :

                 Relator,                                 :

v.                                                        :          No. 13AP-870

Judge David Fais,                                         :    (REGULAR CALENDAR)

                 Respondent.                              :


                                             D E C I S I O N

                                     Rendered on September 9, 2014


                 David Elkins, pro se.

                 Ron O'Brien, Prosecuting Attorney, and Jeffrey C. Rogers,
                 for respondent.

                                 IN PROCEDENDO
                 ON RESPONDENT'S MOTION FOR SUMMARY JUDGMENT
TYACK, J.

        {¶ 1} Relator, David Elkins, a pro se litigant currently incarcerated, filed an
original action requesting a writ of procedendo ordering respondent, the Honorable David
Fais of the Franklin County Court of Common Pleas, to resentence him in compliance
with our judgment in State v. Elkins, 148 Ohio App.3d 370, 2002-Ohio-2914 (10th Dist.).
Respondent filed a motion for summary judgment.
        {¶ 2} In 2001, a jury found Elkins guilty of a number of charges, including
multiple counts of robbery, aggravated robbery, felonious assault, and aggravated
possession of drugs. The trial court sentenced him accordingly. This court affirmed
Elkins' convictions but remanded the matter for resentencing. Id. After a number of
subsequent resentencing and appeals, Elkins was resentenced in 2006. Elkins did not
appeal that 2006 sentencing.
No. 13AP-870                                                                             2


       {¶ 3} On March 26, 2013, Elkins filed a "Motion Requesting Mandatory Hearing
For Final Appealable Order." This was denied by the trial court on April 22, 2013. Elkins
filed a notice of appeal on May 28, 2013. We dismissed the case for not being timely
appealed. Elkins v. State, 10th Dist. No. 13AP-445 (Aug. 23, 2013).
       {¶ 4} On September 10, 2013, Elkins moved this court for leave to file a delayed
appeal for the original common pleas case. On December 6, 2013, we dismissed this case.
State v. Elkins, 10th Dist. No. 13AP-780 (Dec. 6, 2013).
       {¶ 5} Before the dismissal of case No. 13AP-780, Elkins filed this procedendo
action on October 11, 2013.      Respondent moved for summary judgment which was
assigned to the magistrate on December 11, 2013. Elkins responded to the summary
judgment motion on December 6, 2013.
       {¶ 6} In accord with Loc.R. 13(M) of the Tenth District Court of Appeals, the case
was referred to a magistrate to conduct appropriate proceedings. The magistrate then
issued a magistrate's decision, appended hereto, which contains detailed findings of fact
and conclusions of law.       The magistrate's February 14, 2014 decision includes a
recommendation that we grant respondent's motion for summary judgment and deny
relator's request for a writ of procedendo.
       {¶ 7} On March 12, 2014, we denied Elkins' motion entitled "Civ.R. 12(B)(5)
Motion to Strike Magistrate's Judgment as Sham and Motion to Dismiss Upon Due
Process Violation of U.S. Constitutional Speedy Trial Right."
       {¶ 8} Civ.R. 56(C) states that summary judgment shall be rendered forthwith if:
              [T]he pleadings, depositions, answers to interrogatories,
              written admissions, affidavits, transcripts of evidence, and
              written stipulations of fact, if any, timely filed in the action,
              show that there is no genuine issue as to any material fact and
              that the moving party is entitled to judgment as a matter of
              law. No evidence or stipulation may be considered except as
              stated in this rule. A summary judgment shall not be
              rendered unless it appears from the evidence or stipulation,
              and only from the evidence or stipulation, that reasonable
              minds can come to but one conclusion * * *.
No. 13AP-870                                                                                3


Accordingly, summary judgment is appropriate only where: (1) no genuine issue of
material fact remains to be litigated; (2) the moving party is entitled to judgment as a
matter of law; and (3) viewing the evidence most strongly in favor of the non-moving
party, reasonable minds can come to but one conclusion and that conclusion is adverse to
the non-moving party. Tokles & Son, Inc. v. Midwestern Indemn. Co., 65 Ohio St.3d 621,
629 (1992), citing Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 65-66
(1978). "[T]he moving party bears the initial responsibility of informing the trial court of
the basis for the motion, and identifying those portions of the record * * * which
demonstrate the absence of a genuine issue of fact on a material element of the non-
moving party's claim." Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996); Civ.R. 56(E).
       {¶ 9} Summary judgment is a procedural device to terminate litigation, so it must
be awarded cautiously with any doubts resolved in favor of the non-moving party.
Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-59 (1992).
       {¶ 10} To be entitled to a writ of procedendo, a party 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 (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 (1995).
       {¶ 11} The writ of procedendo is merely an order from a court of superior
jurisdiction to one of inferior jurisdiction to proceed to judgment. State ex rel. Utley v.
Abruzzo, 17 Ohio St.3d 203, 204 (1985). It is well-settled that the writ of procedendo will
not issue for the purpose of controlling or interfering with ordinary court procedure. Id.,
citing State ex rel. Cochran v. Quillin, 20 Ohio St.2d 6 (1969).
       {¶ 12} A direct appeal as of right constitutes a plain and adequate remedy in the
ordinary course of the law, the existence of which is fatal to a request for the extraordinary
remedy of procedendo. Utley at 204, citing State ex rel. Cleveland v. Calandra, 62 Ohio
St.2d 121, 122 (1980).
No. 13AP-870                                                                          4


      {¶ 13} Upon review, the magistrate's decision contains no error of law or fact. We
therefore adopt the findings of fact and conclusions of law.     As a result, we grant
respondent's motion for summary judgment and deny relator's request for a writ of
procedendo.
                                               Motion for summary judgment granted;
                                                            Writ of procedendo denied.

                         KLATT and DORRIAN, JJ., concur.
No. 13AP-870                                                                             5


                                      APPENDIX
                         IN THE COURT OF APPEALS OF OHIO
                             TENTH APPELLATE DISTRICT


State of Ohio ex rel. David Elkins,          :
              Relator,                       :
v.                                           :                    No. 13AP-870
Judge David Fais,                            :               (REGULAR CALENDAR)
              Respondent.                    :



                         MAGISTRATE'S DECISION

                             Rendered on February 14, 2014



              David Elkins, pro se.

              Ron O'Brien, Prosecuting Attorney, and Jeffrey C. Rogers,
              for respondent.


                             IN PROCEDENDO
             ON RESPONDENT'S MOTION FOR SUMMARY JUDGMENT


       {¶ 14} In this original action, relator, David Elkins, an inmate of the Hocking
Correctional Institution ("HCI") requests a writ of procedendo ordering respondent, the
Honorable David Fais, a judge of the Franklin County Court of Common Pleas ("common
pleas court"), to resentence him in compliance with this court's June 11, 2002 judgment in
case No. 01AP-1069 regarding consecutive sentencing.
Findings of Fact:
       {¶ 15} 1. On October 11, 2013, relator, an HCI inmate, filed this procedendo action.
       {¶ 16} 2. On November 13, 2013, respondent moved for summary judgment.
No. 13AP-870                                                                           6


      {¶ 17} 3. On November 21, 2013, the court administrator issued notice that
respondent's motion for summary judgment is set for submission to the magistrate on
December 11, 2013.
      {¶ 18} 4. On December 6, 2013, relator filed his written response to the motion for
summary judgment.
      {¶ 19} 5. Earlier, in common pleas court case No. 00CR-7245, a jury returned a
verdict finding relator guilty of multiple felony offenses. On August 9, 2001, respondent
held a sentencing hearing. On August 17, 2001, respondent filed his judgment entry.
      {¶ 20} 6. Relator appealed the August 17, 2001 judgment to this court. The appeal
was assigned case No. 01AP-1069. On June 11, 2002, this court issued its opinion and
filed its judgment entry in case No. 01AP-1069. State v. Elkins, 148 Ohio App.3d 370,
2002-Ohio-2914. This court's judgment entry states:
             For the reasons stated in the opinion of this court rendered
             herein on June 11, 2002, and having overruled defendant's
             first, second, and fifth assignments of error, but having
             sustained defendant's third and fourth assignments of error to
             the extent indicated, it is the judgment and order of this court
             that the judgment of the Franklin County Court of Common
             Pleas is affirmed in part and reversed in part, and this cause is
             remanded to that court for resentencing only, consistent with
             said opinion.

      {¶ 21} 7. On April 25, 2003, respondent held a resentencing hearing in case No.
00CR-7245 in response to this courts June 11, 2002 judgment. On April 30, 2003,
respondent filed his judgment entry.
      {¶ 22} 8. Relator appealed the April 30, 2003 judgment to this court. The appeal
was assigned case No. 03AP-515. On February 24, 2004, this court issued its opinion in
case No. 03AP-515. State v. Elkins, 156 Ohio App.3d 281, 2004-Ohio-842. On April 2,
2004, this court filed its judgment entry in case No. 03AP-515:
             For the reasons stated in the opinion of this court rendered
             herein on February 24, 2004, appellant's sole assignment of
             error is sustained to the extent that the case is remanded to
             the trial court for resentencing in regard to the length of the
             prison term, if any, to be imposed upon appellant for conduct
             demeaning to the seriousness of the offense. In doing so, the
             court should consider only the factor that appellant attempted
No. 13AP-870                                                                            7


               to inflict serious injury on police officers while fleeing the
               crime scene. No further evidence should be taken in regard to
               this factor or any other factor. Therefore, it is the judgment
               and order of this court that the judgment of the Franklin
               County Court of Common Pleas is reversed, and this case is
               remanded to that court for further proceedings in accordance
               with law, consistent with this opinion.

       {¶ 23} 9. On October 15, 2004, respondent held a resentencing hearing in case No.
00CR-7245 in response to this court's April 2, 2004 judgment. On April 13, 2005,
respondent filed his judgment entry.
       {¶ 24} 10. Relator appealed the April 13, 2005 judgment to this court. The appeal
was assigned case No. 05AP-480. On March 9, 2006, this court filed its judgment entry
in case No. 05AP-480:
               Defendant-appellant, David Elkins, appeals from the
               judgment of the Franklin County Court of Common Pleas on
               his felony convictions. Specifically, in his first and second
               assignments of error, appellant challenges the validity of his
               prison sentences. Recognizing that the trial court sentenced
               appellant    on    an     unconstitutional      statute,  R.C.
               2929.14(D)(3)(b), we sustain appellant's first and second
               assignments of error on the authority of State v. Foster, __
               Ohio St.3d __, 2006-Ohio-856. Accordingly, we reverse the
               judgment of the Franklin County Court of Common Pleas and
               remand this cause to the trial court for resentencing pursuant
               to Foster.

       {¶ 25} 11. On June 14, 2006, respondent held a resentencing hearing in case No.
00CR-7245 in response to this court's March 9, 2006 judgment entry. On June 23, 2006,
respondent filed his judgment entry.
       {¶ 26} 12. Relator did not timely appeal respondent's June 23, 2006 judgment
entry to this court.
       {¶ 27} 13. On March 26, 2013, relator filed a motion in common pleas court case
No. 00CR-7245. The motion was captioned: "Motion Requesting Mandatory Hearing
For Final Appealable Order."
       {¶ 28} 14. On April 22, 2013, respondent filed an entry denying relator's March 26,
2013 motion.
No. 13AP-870                                                                                8


          {¶ 29} 15. On May 28, 2013, relator filed a notice of appeal in this court from the
April 22, 2013 entry of respondent. The appeal was assigned case No. 13AP-445. On
August 23, 2013, this court filed its journal entry of dismissal in case No. 13AP-445.
          {¶ 30} 16. On September 10, 2013, pursuant to App.R. 5, relator moved this court
for leave to file a delayed appeal from common pleas court case No. 00CR-7245. Relator's
September 10, 2013 motion was assigned case No. 13AP-780.
          {¶ 31} 17. On December 6, 2013, this court filed its journal entry of dismissal in
case No. 13AP-780.
Conclusions of Law:
          {¶ 32} It is the magistrate's decision that this court grant respondent's motion for
summary judgment.
          {¶ 33} Summary judgment is appropriate when the movant demonstrates that: (1)
there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a
matter of law; and (3) reasonable minds can come to but one conclusion, and that
conclusion is adverse to the party against whom the motion for summary judgment is
made, said party being entitled to have the evidence construed most strongly in his favor.
Turner v. Turner, 67 Ohio St.3d 337, 339-40 (1993); Bostic v. Connor, 37 Ohio St.3d 144,
146 (1988); Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66 (1978). The
moving party bears the burden of proving no genuine issue of material fact exists. Mitseff
v. Wheeler, 38 Ohio St.3d 112, 115 (1988).
          {¶ 34} In the last paragraph of his complaint, relator presumably sets forth his
demand for relief:
                For all the foregoing reasons, David Elkins requests this
                court to issue a Writ of Procedendo compelling respondent,
                Judge David Fais to hold a sentencing hearing in compliance
                with Ohio law, and this Court's June 11, 2002 judgment,
                addressing, consecutive sentencing. In addition, Mr. Elkins
                hereby request this Court to have his sentence reviewed by a
                sitting Judge. Judge Fais has had four opportunities to get
                this right and has refused.

          {¶ 35} In his response to respondent's motion for summary judgment, relator
states:
No. 13AP-870                                                                               9


              The Respondent blatantly refuses to obey this Court, not
              once—but time after time, which has prompted my four
              appeals which the Respondent terms as "a continuing trend".
              Respondent argues that I have to establish that Respondent
              has a clear legal duty to act. The simple fact is the
              Respondent Judge has the duty to obey (or act) this Court's
              mandates. When he refuses to do so, even after several
              appeals to this Court, then the ONLY remedy at law is a
              Petition of Procedendo.

(Emphasis sic.)

       {¶ 36} A writ of procedendo is merely an order from a court of superior jurisdiction
to one of inferior jurisdiction to proceed to judgment. State ex rel. Utley v. Abruzzo, 17
Ohio St.3d 203, 204 (1985). A writ does not in any case attempt to control the inferior
court as to what that judgment should be. Id. A writ of procedendo will not issue where
an adequate remedy exists in the ordinary course of law. Id.
       {¶ 37} It is axiomatic that a direct appeal as of right constitutes a plain and
adequate remedy in the ordinary course of law. Id.
       {¶ 38} Here, relator had a direct appeal as of right to this court from respondent's
June 23, 2006 judgment entry. Relator failed to timely appeal the judgment. The
availability of a direct appeal as of right from the June 23, 2006 judgment is a plain and
adequate remedy in the ordinary course of the law that bars this original action for a writ
of procedendo. Id.
       {¶ 39} Accordingly, it is the magistrate's decision that this court grant respondent's
motion for summary judgment and deny relator’s request for a writ of procedendo.



                                          /S/ MAGISTRATE
                                         KENNETH W. MACKE
No. 13AP-870                                                                 10


                          NOTICE TO THE PARTIES

           Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign
           as error on appeal the court's adoption of any factual finding
           or legal conclusion, whether or not specifically designated as
           a finding of fact or conclusion of law under Civ.R.
           53(D)(3)(a)(ii), unless the party timely and specifically
           objects to that factual finding or legal conclusion as required
           by Civ.R. 53(D)(3)(b).
