Opinion
No. 106443
04-25-2018
STATE OF OHIO, EX REL. GEORGE ALLEN COLE RELATOR v. SHIRLEY STRICKLAND SAFFORD, JUDGE RESPONDENT
FOR RELATOR George Allen Cole, pro se Inmate No. 671677 Richland Correctional Institution 1001 Olivesburg Road P.O. Box 8107 Mansfield, Ohio 44901 ATTORNEYS FOR RESPONDENT Michael C. O'Malley 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 Mandamus
Motion No. 514973
Order No. 516562
FOR RELATOR
George Allen Cole, pro se
Inmate No. 671677
Richland Correctional Institution
1001 Olivesburg Road
P.O. Box 8107
Mansfield, Ohio 44901
ATTORNEYS FOR RESPONDENT
Michael C. O'Malley
Cuyahoga County Prosecutor
By: James E. Moss
Assistant County Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113 MARY EILEEN KILBANE, J.:
{¶1} In this mandamus action, relator, George Cole, seeks an order compelling respondent, Judge Shirley Strickland Saffold, to serve upon him a certified copy of the trial court's judgment entry denying his petition for postconviction relief, and to rule upon his Civ.R. 60(B)(5) motion. Respondent has filed an amended motion for summary judgment on the grounds that Cole's petition is moot. We agree and grant respondent's unopposed amended motion for summary judgment.
A. Procedural History and Facts
{¶2} On April 7, 2016, Cole filed a petition for postconviction relief in State v. Cole, Cuyahoga C.P. Nos. CR-14-588878-B, CR-14-589681-A, and CR-14-590944-B, which Judge Saffold denied the following week. The judgment entries, however, failed to contain the required Civ.R. 58(B) language directing the clerk to serve the notice upon all parties. On May 1, 2017, Cole filed a motion for relief from judgment, which had not been ruled upon at the time that he filed his petition for a writ of mandamus on October 31, 2017. In his petition, Cole asks this court to compel respondent to include Civ.R. 58(B) language upon the judgment entry denying his petition for postconviction relief, and to issue a ruling on his motion for relief from judgment.
{¶3} On February 20, 2018, respondent moved for summary judgment and presented certified copies of filed journal entries, demonstrating (1) a ruling on Cole's Civ.R. 60(B) motion, which contained the required Civ.R. 58(B) language; and (2) a ruling on Cole's petition for postconviction relief, which contained findings of fact and conclusions of law as well as the required language of Civ.R. 58(B). Cole has not opposed the amended motion.
B. Moot
{¶4} The record reflects that the trial court has fully performed the duties that Cole's petition seeks this court to compel and, therefore, his request for mandamus is moot. State ex. rel. Jenninghan v. Cuyahoga Cty. Court of Common Pleas, 74 Ohio St.3d 278, 658 N.E.2d 723 (1996); State ex rel. Gantt v. Coleman, 6 Ohio St.3d 5, 450 N.E.2d 1163 (1983). Indeed, mandamus will not lie to compel the performance of a duty that has already been performed. State ex rel. Culgan v. Collier, 135 Ohio St.3d 436, 2013-Ohio-1762, 988 N.E.2d 564, ¶ 13.
{¶5} Accordingly, the court grants the respondent's motion for summary judgment and denies the writ. Costs waived. The clerk is directed to serve upon the parties notice of this judgment and its date of entry upon the journal. Civ.R. 58(B).
{¶6} Writ denied. MARY EILEEN KILBANE, JUDGE KATHLEEN ANN KEOUGH, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR