Court of Appeals of Ohio, Eighth District, Cuyahoga
Procedendo Motion No. 510192 Order No. 510866
RELATOR Edward R. Evans Inmate No. A523490 Belmont
ATTORNEYS FOR RESPONDENT Michael C. O'Malley Cuyahoga
County Prosecutor By: James E. Moss Assistant County
Prosecutor The Justice Center
JOURNAL ENTRY AND OPINION
C. GALLAGHER, P.J.
On August 21, 2017, Edward Evans commenced this procedendo
action, which he captioned as State of Ohio v. Edward
Evans." The relief sought in his one-page complaint
is difficult to discern. He refers to R.C. 2929.19(B)(2)(g),
which concerns jail-time credit, and R.C. 2953.08(A)(4) that
permits appeals of sentences contrary to law.  He also refers to
State v. Watson, 11th Dist. Astabula No.
2000-A-0082, 2001-Ohio-8792, which discusses the propriety of
consecutive sentences. His conclusion states: "Judgment
relief Procedendo is allowable via judgment for trial court
to render for appeal. With instructions of rendering in
Supertiedence [sic] Rule 40."
On September 8, 2017, the Cuyahoga County prosecutor moved
for summary judgment on behalf of the respondent and argued
pleading defects, mootness by the trial court granting Evans
86 days of jail-time credit, and adequate remedy at law.
Evans's rebuttal brief argued that because Counts 3 and 4
were allied offenses, he should be given "jail-time
credit" for Count 4 and the failure of the trial court
to so grant him this "jail-time credit" means that
the judge should proceed to judgment on the issue and the
case. For the following reasons, this court grants the
respondent's motion for summary judgment and denies the
application for a writ of procedendo.
The writ of procedendo is merely an order from a court of
superior jurisdiction to one of inferior jurisdiction to
proceed to judgment. Yee v. Erie Cty. Sheriffs Dept,
51 Ohio St.3d 43, 553 N.E.2d 1354 (1990). Procedendo is
appropriate when a court has either refused to render a
judgment or has unnecessarily delayed proceeding to judgment.
State ex rel Watkins v. Eighth Dist. Court of
Appeals, 82 Ohio St.3d 532, 1998-Ohio-190, 696 N.E.2d
1079. However, the writ will not issue to control what the
judgment should be, nor will it issue for the purpose of
controlling or interfering with ordinary court procedure.
Thus, procedendo will not lie to control the exercise of
judicial discretion. Moreover, it will not issue if the
petitioner has or had an adequate remedy at law. State ex
rel. Utley v. Abruzzo, 17 Ohio St.3d 203, 478 N.E.2d 789
(1985); State ex rel. Hansen v. Reed, 63 Ohio St.3d
597, 589 N.E.2d 1324 (1992); and Howard v. Cuyahoga Cty.
Probate Court, 8th Dist. Cuyahoga No. 84702,
2004-Ohio-4621 (petitioner failed to use an adequate remedy
To the extent that Evans seeks to challenge his sentence
because Counts 3 and 4 should have been merged or because the
trial court improperly imposed consecutive sentences, Evans
has or had an adequate remedy at law through appeal to
challenge the sentences. Generally, sentencing errors are not
remediable by extraordinary writs because, inter alia, appeal
provides an adequate remedy at law. State ex rel.
Ridenour v. O'Connell, 147 Ohio St.3d 351,
2016-Ohio-7368, 65 N.E.3d 742.
To the extent that Evans seeks jail-time credit, outside of
the merger of counts three and four, the issue has been
rendered moot by the trial court granting him 86 days of
jail-time credit. Appeal, not an extraordinary writ, is the
remedy for challenging a calculation of jail-time credit.
Mosley v. Cuyahoga Cty. Court of Common Pleas, 8th
Dist. Cuyahoga No. 82269, 2002-Ohio-1364.
The court notes that the case caption, State of Ohio v.
Edward Evans, is improper, because it does not identify
the respondent and causes confusion as to what exactly is the
claim. The lack of clarity in a complaint, including an
improper caption, provides a sufficient basis to deny a
request for an extraordinary writ. State v. Byrge,
8th Dist. Cuyahoga No. 92979, 2009-Ohio-4376.
Relator also did not comply with R.C. 2969.25(C), which
requires that an inmate file a certified statement from his
prison cashier setting forth the balance in his private
account for each of the preceding six months. This also is
sufficient reason to deny the procedendo, deny indigency
status, and assess costs against the relator. State ex
rel. Pamer v. Collier, 108 Ohio St.3d 492,
2006-Ohio-1507, 844 N.E.2d 842; State ex rel. Hunter v.
Cuyahoga Cty. Court of Common Pleas, 88 Ohio St.3d 176,
2000-Ohio-285, 724 N.E.2d 420; and Hazel v. Knab,
130 Ohio St.3d 22, 2011-Ohio-4608, 955 N.E.2d 378 - the
defect may not be cured by subsequent filings.
Accordingly, this court grants the respondent's motion
for summary judgment and denies the application for a writ of
procedendo. Relator to pay costs. This court directs the
clerk of courts to serve all parties notice of this judgment
and its date of entry upon the journal as required by Civ.R.