Opinion
No. 103648
02-03-2016
STATE OF OHIO, EX REL. DONALD PATE, JR. RELATOR v. JUDGE DEENA CALABRESE RESPONDENT
FOR RELATOR Donald Pate, Jr., pro se Inmate No. 590232 Ross Correctional Institution P.O. Box 7010 Chillicothe, Ohio 45601 ATTORNEYS FOR RESPONDENT Timothy J. McGinty Cuyahoga County Prosecutor By: James E. Moss Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113
JOURNAL ENTRY AND OPINION JUDGMENT: WRIT DENIED Writ of Procedendo Motion No. 490715
Order No. 492552
FOR RELATOR
Donald Pate, Jr., pro se
Inmate No. 590232
Ross Correctional Institution
P.O. Box 7010
Chillicothe, Ohio 45601
ATTORNEYS FOR RESPONDENT
Timothy J. McGinty
Cuyahoga County Prosecutor
By: James E. Moss
Assistant County Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113 EILEEN A. GALLAGHER, P.J.:
{¶1} Donald Pate, Jr. has filed a complaint for a writ of procedendo. Pate seeks an order from this court that requires Judge Deena Calabrese to render a ruling, in State v. Pate, Cuyahoga C.P. No. CR-10-535104, with regard to a petition for postconviction relief filed on October 1, 2012. Judge Calabrese has filed a motion for summary judgment.
{¶2} Attached to Judge Calabrese's motion for summary judgment is a copy of a judgment entry, journalized on October 28, 2015, which demonstrates that a ruling has been rendered with regard to Pate's petition for postconviction relief. Thus, Pate'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; State ex rel. Reynolds v. Basinger, 99 Ohio St.3d 303, 2003-Ohio-3631, 791 N.E.2d 459. In addition, a writ will not issue to compel the performance of a duty that has already been performed. State ex rel. Rose v. McGinty, 123 Ohio St.3d 86, 2009- Ohio-4050, 914 N.E.2d 366; State ex rel. Sevayega v. McMonagle, 122 Ohio St.3d 54, 2009-Ohio-2367, 907 N.E.2d 1180.
{¶3} Accordingly, we grant Judge Calabrese's motion for summary judgment. Costs to relator. Costs waived. The court directs the clerk of courts to serve all parties with notice of this judgment and the date of entry upon the docket as required by Civ.R. 58(B).
{¶4} Writ denied. /s/_________
EILEEN A. GALLAGHER, PRESIDING JUDGE SEAN C. GALLAGHER, J., and
ANITA LASTER MAYS, J., CONCUR