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State ex rel. Hillman v. Brown

Court of Appeals of Ohio, Tenth District

June 21, 2018

State ex rel. Robert L. Hillman, Relator,
v.
Franklin County Common Pleas Judge, Mr. Jeffrey M. Brown, Respondent.

          IN PROCEDENDO ON OBJECTION TO THE MAGISTRATE'S DECISION

         On brief:

          Robert L. Hillman, pro se.

          Ron O'Brien, Prosecuting Attorney, for respondent.

          DECISION

          BROWN, P.J.

         {¶ 1} Relator, Robert L. Hillman, an inmate, has filed a pro se original action requesting this court issue a writ of procedendo ordering respondent, the Honorable Jeffrey M. Brown, a judge of the Franklin County Court of Common Pleas, to "proceed to judgment" with respect to a complaint and affidavit relator filed, pursuant to R.C. 2935.09 and 2935.10, accusing another common pleas judge of a criminal offense.

         {¶ 2} This court referred the matter to a magistrate of this court pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the appended decision, including findings of fact and conclusions of law, recommending this court dismiss this action for failure to comply with R.C. 2969.25(A). Relator has filed a pro se objection to the magistrate's decision arguing he should have been allowed to amend his pleading to comply with R.C. 2969.25.

         {¶ 3} Relator seeks a writ of procedendo with respect to an "Affidavit of Accusation and Criminal Complaint" he filed on November 29, 2016 in Franklin C.P. No. 16MS-674, alleging that a common pleas judge "deliberately committed the crimes of * * * obstructing official business." Relator subsequently filed several motions in case No. 16MS-674, requesting the trial court to proceed to judgment on his affidavit and complaint. On November 28, 2017, relator filed the instant original action in this court.

         {¶ 4} In general, "[a] writ of procedendo is appropriate when a court has either refused to render a judgment or has unnecessarily delayed proceeding to judgment." State ex rel. Sherrills v. Common Pleas, 72 Ohio St.3d 461, 462 (1995). However, " '[a] writ of procedendo will not issue to compel the performance of a duty that has already been performed.' " State ex rel. Graham v. Niemeyer, 106 Ohio St.3d 466, 2005-Ohio-5522, ¶ 4, quoting State ex rel. Bortoli v. Dinkelacker, 105 Ohio St.3d 133, 2005-Ohio-779, ¶ 3. An appellate court "can take judicial notice that the requested act has been performed." State ex rel. Stanley v. D'Apolito, 7th Dist. No. 12 MA 218, 2013-Ohio-428, ¶ 8, citing State ex rel. Grove v. Nadel, 84 Ohio St.3d 252, 253 (1998).

         {¶ 5} In the instant action, we take judicial notice of the fact that, subsequent to the filing of this action, the trial court issued a decision and entry in case No. 16MS-674 on February 9, 2018, ruling on appellant's "Affidavit of Accusation and Criminal Complaint." Because respondent has ruled on the affidavit and complaint in case No. 16MS-674, the petition for writ of procedendo before this court is rendered moot. Similarly, relator's objection to the magistrate's decision is rendered moot and we do not address it.

         {¶ 6} Based on the foregoing, the decision of the magistrate is vacated, relator's objection is moot, and relator's request for a writ of procedendo is dismissed.

         Action dismissed.

          DORRIAN and ...


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