[Cite as State ex rel. Jones v. Vercillo, 2015-Ohio-3991.]


                                         COURT OF APPEALS
                                      ASHLAND COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT

                                                                JUDGES:
STATE OF OHIO, EX REL.                                  :       Hon. W. Scott Gwin, P.J.
DARIUS M. JONES                                         :       Hon. Patricia A. Delaney, J.
                                                        :       Hon. Craig R. Baldwin, J.
                                       Relator          :
                                                        :
-vs-                                                    :       Case No. 15-COA-003
                                                        :
JUDGE DAMIAN J. VERCILLO                                :
                                                        :       OPINION
                                 Respondent




CHARACTER OF PROCEEDING:                                     Writ of Mandamus



JUDGMENT:                                                    Dismissed



DATE OF JUDGMENT ENTRY:                                      September 25, 2015


APPEARANCES:

For: Relator                                                 For: Respondent
DARIUS M. JONES                                              JUDGE DAMIAN J. VERCILLO
P.O. BOX 8107                                                Ashland County Common Pleas Court
Mansfield, OH 44901                                          142 West Second Street
                                                             Ashland, OH 44805
Ashland County, Case No. 15-COA-003                                                           2

Gwin, P.J.

        {¶1}     Relator,   Darius   M.   Jones,   has   filed   a   Complaint   for   Writ   of

Mandamus/Procedendo requesting this Court find Respondent lacked jurisdiction to

conduct a hearing nine months after having been served with a notice of availability

from Relator. Respondent has filed a motion to dismiss arguing Relator’s claim fails

because he had an adequate remedy at law. Relator in turn filed a motion for summary

judgment.

        {¶2}     To be entitled to the issuance of a writ of mandamus, the Relator must

demonstrate: (1) a clear legal right to the relief prayed for; (2) a clear legal duty on the

respondent's part to perform the act; and, (3) that there exists no plain and adequate

remedy in the ordinary course of law. State ex rel. Master v. Cleveland, 75 Ohio St.3d

23, 26-27, 1996 Ohio 228, 661 N.E.2d 180; State ex rel. Harris v. Rhodes (1978), 54

Ohio St.2d 41, 374 N.E.2d 641, citing State ex rel.National City Bank v. Bd of Education

(1977) 52 Ohio St.2d 81, 369 N.E.2d 1200.

        {¶3}     On August 15, 2013, while Relator was in prison, he filed a “notice of

availability.”   Ohio Revised Code Section 2941.401 provides in relevant part, “When a

person has entered upon a term of imprisonment in a correctional institution of this

state, and when during the continuance of the term of imprisonment there is pending in

this state any untried indictment, information, or complaint against the prisoner, he shall

be brought to trial within one hundred eighty days after he causes to be delivered to the

prosecuting attorney and the appropriate court in which the matter is pending, written

notice of the place of his imprisonment and a request for a final disposition to be made

of the matter . . .”
Ashland County, Case No. 15-COA-003                                                      3


        {¶4}     The essence of the complaint is that Respondent did not resolve the

cause pending below within 180 days of being served with Relator’s “notice of

availability.”

        {¶5}     Relator has not explained exactly what cause was pending in

Respondent’s court.       R.C. 2941.401 requires a person to be tried on any “untried

indictment, information, or complaint” within 180 days of the notice. Relator describes

the pending action below as a “simple misdemeanor warrant” and “an alleged child

support warrant.” Complaint paragraphs 1 and 2. Respondent suggests there was no

pending criminal case but concedes there was a child support warrant in the juvenile

court. Answer paragraph 2.

        {¶6}     Even assuming arguendo R.C. 2941.401 is applicable to the underlying

case, the Supreme Court has held mandamus will not lie due to a violation of this code

section because an adequate remedy at law exists. In other words, because Relator

can challenge a violation of R.C. 2941.401 by filing a motion to dismiss on speedy trial

grounds, mandamus does not lie. The sole contention in the complaint before us is that

Respondent failed to resolve the warrant within 180 days in violation of R.C. 2941.401.

As noted above, a violation of R.C. 2941.401 does not lie in mandamus, the mandamus

action is dismissed for failure to state a claim upon which relief may be granted.

        {¶7}     Relator captioned his complaint as one in mandamus/procedendo.

Despite its caption, Relator has alleged no facts in support of a writ of procedendo.

        {¶8}     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.” Miley,
Ashland County, Case No. 15-COA-003                                                      4

supra, at 65, citing State ex rel. Sherrills v. Cuyahoga Cty. Court of Common Pleas

(1995), 72 Ohio St.3d 461, 462. The Supreme Court has noted, “The writ of procedendo

is merely an order from a court of superior jurisdiction to one of inferior jurisdiction to

proceed to judgment. It does not in any case attempt to control the inferior court as to

what that judgment should be.” State ex rel. Davey v. Owen, 133 Ohio St. 96,106, 12

N.E.2d 144, 149 (1937).

      {¶9}   Because none of the facts alleged in the complaint have any relation to a

writ of procedendo, the complaint for writ of procedendo is dismissed for failure to state

a claim upon which relief may be granted.

By Gwin, P.J.,

Delaney, J., and

Baldwin, J., concur
