Court of Appeals of Ohio, Eighth District, Cuyahoga
STATE OF OHIO, EX REL. DWAYNE DAVIS RELATOR
JUDGE KATHLEEN ANN SUTULA RESPONDENT
of Procedendo and Mandamus Motion No. 508494 Order No. 509514
RELATOR Dwayne Davis, pro se
ATTORNEYS FOR RESPONDENT Michael C. O'Malley Cuyahoga
County Prosecutor By: James E. Moss Assistant County
JOURNAL ENTRY AND OPINION
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
Procedural History and Facts
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.
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.
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.
Mandamus and/or Procedendo to Compel Ruling and Issuance of
Findings of Fact and Conclusions of Law
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.
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.
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.
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