[Cite as State ex rel. Davis v. Sutula, 2017-Ohio-7486.]


                  Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 105868



                              STATE OF OHIO, EX REL.
                                 DWAYNE DAVIS

                                                             RELATOR

                                                       vs.

                      JUDGE KATHLEEN ANN SUTULA
                                                             RESPONDENT




                                            JUDGMENT:
                                           WRITS DENIED


                                  Writs of Procedendo and Mandamus
                                          Motion No. 508494
                                           Order No. 509514


        RELEASE DATE: September 6, 2017
FOR RELATOR

Dwayne Davis, pro se
Inmate No. 644-653
Lake Erie Correctional Institution
P.O. Box 8000
Conneaut, Ohio 44030


ATTORNEYS FOR RESPONDENT

Michael C. O’Malley
Cuyahoga County Prosecutor
By: James E. Moss
Assistant County Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
TIM McCORMACK, J.:

       {¶1}    On June 5, 2017, relator, Dwayne Davis, commenced this procedendo and

mandamus action against the respondent, Judge Kathleen Ann Sutula.            Davis seeks an

order compelling the judge to render a ruling and also issue findings of fact and

conclusions of law on his petition for postconviction relief    filed on January 10, 2017, in

State v. Davis, Cuyahoga C.P. No. CR-13-574008-A. For the reasons that follow, we

grant respondent’s motion and deny relator’s request for a writ of procedendo or a writ of

mandamus.

       A. Procedural History and Facts

       {¶2}    In 2013, Davis pleaded guilty to and was convicted of two counts of

burglary and one count of intimidation of a crime victim or witness.       He was sentenced

to ten years in prison. On March 12, 2015, this court granted Davis’s request for a

delayed appeal, and he subsequently filed the transcript of the lower court proceedings on

April 30, 2015. On October 29, 2015, this court ultimately affirmed Davis’s convictions

but remanded for the trial court to enter a nunc pro tunc entry to incorporate the findings

made at the sentencing hearing into the journal entry. See State v. Davis, 8th Dist.

Cuyahoga No. 102639, 2015-Ohio-4501.

       {¶3}    On January 10, 2017 — more than 365 days from the date on which the

trial transcript was filed in his direct appeal, Davis filed a “petition to vacate or set aside

judgment of conviction or sentence,” which is the subject of this action. After Davis
commenced the underlying action on June 5, 2017, the trial court denied the petition on

June 28, 2017, noting that the petition was untimely.

       {¶4}    Judge Sutula has moved for summary judgment on the grounds that the

trial court has ruled on the motion, thereby rendering Davis’s petition moot, and that the

trial court has no duty to issue findings of fact and conclusions of law because the petition

was untimely under R.C. 2953.21. Davis, however, opposed the motion for summary

judgment, arguing that the trial court still has a duty to issue findings of fact and

conclusions of law because he was “unavoidably prevented” from discovering the facts

supporting his petition. Davis’s arguments and allegations of his petition, however, fail

to satisfy the standards for either a writ of mandamus or a writ of procedendo.

       B. Mandamus and/or Procedendo to Compel Ruling and Issuance of
       Findings of Fact and Conclusions of Law

       {¶5}    In order to obtain a writ of mandamus/procedendo, Davis must establish,

through clear and convincing evidence, that he possesses a clear legal right to the

requested relief, that Judge Sutula possesses a clear legal duty to provide the requested

relief, and that Davis lacks an adequate remedy in the ordinary course of the law. State

ex rel. Arnold v. Gallagher, 8th Dist. Cuyahoga No. 105351, 2017-Ohio-4076, ¶ 7, citing

State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452.

Neither procedendo nor mandamus, however, will compel the performance of a duty that

has already been performed. State ex rel. Howard v. Doneghy, 102 Ohio St.3d 355,

2004-Ohio-3207, 810 N.E.2d 958, ¶ 2. Under such circumstances, the complaint is

moot. Id.
      {¶6}    Attached to Judge Sutula’s motion for summary judgment is a certified

copy of a journal entry, filed-stamped June 28, 2017, that demonstrates Davis’s petition

was ruled upon.   Davis’s request for a ruling is therefore moot.

      {¶7} Further, contrary to Davis’s assertion, the trial court had no duty to issue

findings of fact and conclusions of law because of the untimeliness of the petition.   As

stated by the Ohio Supreme Court, “a trial court need not issue findings of fact and

conclusions of law when it dismisses an untimely [postconviction-relief] petition.” State

ex rel. Kimbrough v. Greene, 98 Ohio St.3d 116, 2002-Ohio-7042, 781 N.E.2d 155, ¶ 6.

“This rule applies even when the defendant * * * claims, under R.C. 2953.23, that he was

unavoidably prevented from discovery of the facts to present his claim for post-conviction

relief.” State ex rel. Hach v. Summit Cty. Court of Common Pleas, 102 Ohio St.3d 75,

2004-Ohio-1800, 806 N.E.2d 554, ¶ 9; see also State ex rel. Dillon v. Cottrill, 145 Ohio

St.3d 264, 2016-Ohio-626, 48 N.E.3d 552, ¶ 5. Davis therefore fails to prove by clear

and convincing evidence that he has a legal right to compel Judge Sutula to issue findings

of fact and conclusions of law or that Judge Sutula has a legal duty to do so. Cottrill at

id.

      {¶8}    Moreover, Davis has an adequate remedy in the ordinary course of law by

way of appealing the trial court’s denial of his petition for postconviction relief.   See

Cottrill at ¶ 6, citing State ex rel. Smith v. McGee, 144 Ohio St.3d 50, 2015-Ohio-2748,

40 N.E.3d 1105, ¶ 13-14,        (“Appeal is an adequate remedy precluding writs of

procedendo and mandamus”), citing State ex rel. Ward v. Reed, 141 Ohio St.3d 50,
2014-Ohio-4512, 21 N.E.3d 303, ¶ 12.        Indeed, Davis has appealed the judgment, which

is pending before this court.     See State v. Davis, 8th Dist. Cuyahoga No. 106012 (notice

of appeal filed July 18, 2017).

       {¶9} Accordingly, Judge Sutula’s motion for summary judgment is granted, and

Davis’s complaint for mandamus and/or procedendo is denied. Relator to pay costs;

costs waived.   The court directs the clerk of courts to serve all parties with notice of this

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

       {¶10}    Writs denied.




TIM McCORMACK, JUDGE

KATHLEEN ANN KEOUGH, A.J., and
MARY EILEEN KILBANE, J., CONCUR
