Smith v. McClelland

[Cite as Smith v. McClelland, 2012-Ohio-2518.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 98123

ALFONSO SMITH RELATOR

vs.

JUDGE ROBERT C. McCLELLAND RESPONDENT

JUDGMENT: WRIT DENIED

Writ of Procedendo Motion No. 454069 Order No. 455161

RELEASE DATE: June 4, 2012

FOR RELATOR

Alfonso Smith, pro se Inmate No. 601-802 North Central Correctional Institution P.O. Box 1812 Marion, Ohio 43301-1812

ATTORNEYS FOR RESPONDENT

William D. Mason Cuyahoga County Prosecutor

By: James E. Moss Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113

MARY EILEEN KILBANE, J.:

{¶1} Alfonso Smith has filed a complaint for a writ of procedendo. Smith seeks an order from this court that requires Judge Robert C. McClelland to issue rulings with regard to a petition for a writ of habeas corpus and a “hybrid” motion to challenge the selection of the grand jury as originally filed in State v. Smith, Cuyahoga C.P. Case No. CR-537931.1 Judge McClelland has filed a motion for summary judgment, which we grant for the following reasons.

{¶2} Initially, we find that Smith’s complaint for a writ of procedendo is procedurally defective. Loc.App.R. 45(B)(1)(a) provides that a complaint for an extraordinary writ must be supported by a sworn affidavit that specifies the details of Smith’s claim. A simple statement that verifies that Smith has reviewed the complaint and that the contents are true and accurate does not satisfy the mandatory requirement under Loc.App.R. 45(B)(1)(a). State ex rel. Jones v. McGinty, 8th Dist. No. 92602, 2009-Ohio-1258; State ex rel. Mayes v. Ambrose, 8th Dist. No. 91980, 2009-Ohio-25; James v. Callahan, 8th Dist. No. 89654, 2007-Ohio-2237.

{¶3} In addition, we find that Smith is not entitled to a writ of procedendo. Attached to Judge McClelland’s motion for summary judgment is a copy of a journal

1Pursuant to Civ.R. 25(D)(1), Judge Robert C. McClelland is substituted for the judge that was originally assigned to the underlying criminal case.

entry that demonstrates that a ruling was rendered, on September 17, 2010, with regard to Smith’s petition for a writ of habeas corpus. In addition, Smith’s “hybrid” motion, to challenge the selection of the grand jury, must be deemed denied upon disposition of the underlying criminal action. Smith entered a plea of guilty to one count of gross sexual imposition on April 18, 2011, which rendered any pending motion deemed as denied. State ex rel. Harris v. Sheehan, 8th Dist. No. 93516, 2009-Ohio-4196; State v. Whitaker, 8th Dist. No. 83824, 2004-Ohio-5016. Thus, Smith’s complaint for a writ of procedendo is moot. State ex rel. Fontanella v. Kontos, 117 Ohio St.3d 514, 2008-Ohio-1431, 885 N.E.2d 220.

{¶4} Accordingly, we grant Judge McClelland’s motion for summary judgment. Smith to pay costs. The court directs the clerk of court to serve notice of this judgment and its date of entry upon the journal as required by Civ.R. 58(B).

{¶5} Writ denied.

MARY EILEEN KILBANE, JUDGE

JAMES J. SWEENEY, P.J., and KENNETH A. ROCCO, J., CONCUR