[Cite as Stevens v. Fleegle,

.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

TREY A. STEVENS JUDGES: Hon. Patricia A. Delaney, P.J. Petitioner Hon. William B. Hoffman, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. CT2016-0039 HONORABLE JUDGE MARK C. FLEEGLE OPINION Respondent

CHARACTER OF PROCEEDING: Procedendo

JUDGMENT: Writ Issued

DATE OF JUDGMENT ENTRY: March 3, 2017

APPEARANCES:

For Petitioner For Respondent

TREY A. STEVENS, PRO SE D. MICHAEL HADDOX #A676-075 Prosecuting Attorney Noble Correctional Institution Muskingum County, Ohio 15708 McConnelsville Road Caldwell, Ohio 43724 By: GERALD V. ANDERSON II Assistant Prosecuting Attorney Muskingum County, Ohio 27 North Fifth St., P.O. Box 189 Zanesville, Ohio 43702-0189 Muskingum County, Case No. CT2016-0039 2

Hoffman, J.

{¶1} Petitioner, Trey A. Stevens, has filed a Complaint for Writ of Procedendo

requesting Respondent be ordered to rule on a motion to vacate post release control

pending in the trial court. Respondent has in turn filed a motion to dismiss arguing he is

justified in not ruling on the motion.

{¶2} “To be entitled to a writ of procedendo, [a petitioner] 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,

,

(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,

,

(1995).” State ex rel.

Brown v. Luebbers,

,

,

(2013).

{¶3} “Sup.R. 40(A)(3) imposes on trial courts a duty to rule on motions within 120

days. State ex rel. Culgan v. Collier,

,

,

. Although the Rules of Superintendence do not provide litigants with a right to

enforce Sup.R. 40, “ ‘procedendo and mandamus will lie when a trial court has refused to

render, or unduly delayed rendering, a judgment.’ ”

, quoting State ex rel.

Reynolds v. Basinger,

,

,

, ¶ 5; see also

State ex rel. Weiss v. Hoover,

,

(1999).” State

ex rel. Brown v. Luebbers,

,

,

(2013). Muskingum County, Case No. CT2016-0039 3

{¶4} The motion in this case has been pending since July 13, 2015, well over the

120 time frame imposed by Sup.R. 40(A)(3). Respondent argues it would be improper to

rule because he is waiting on guidance from a factually similar case currently pending in

the Supreme Court, State v. Grimes, Case No. 2016-0215. He believes the Supreme

Court’s acceptance of the Grimes appeal operates as a “de facto stay.” He further notes

one half of the judges on this Court will disagree with his ruling because this Court has

split on the issue presented in Petitioner’s motion. Respondent offers no authority for

these propositions.

{¶5} Once the trial court rules, either party may elect to appeal that judgment to

this Court. And once this Court rules, either party may elect to pursue appeal of our

judgment to the Ohio Supreme Court. While Grimes likely will resolve this issue, we find

Petitioner may well be prejudiced by the delay.

{¶6} We find the ruling on the July 13, 2015 motion has been unduly delayed,

therefore, we grant the writ of procedendo. Respondent shall forthwith enter a ruling on

Petitioner’s July 13, 2015 motion.

By: Hoffman, J.

Delaney, P.J. and

Wise, Earle, J. concur