State ex rel. Martinez v. Cronin
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[Cite as State ex rel. Martinez v. Cronin, 2005-Ohio-3941.] STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT STATE OF OHIO, ex rel., RAYMOND C. MARTINEZ, RELATOR, - VS - COURT OF COMMON PLEAS JUDGE MAUREEN A. CRONIN, RESPONDENT. ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 05 MA 93 OPINION AND JOURNAL ENTRY CHARACTER OF PROCEEDINGS: Relator's Petition for Writ of Mandamus and/or Petition for Issuance of Writ of Procedendo. JUDGMENT: Petition Dismissed. APPEARANCES: For Relator: For Respondent: JUDGES: Hon. Gene Donofrio Hon. Cheryl L. Waite Raymond C. Martinez, Pro-se, #451-122 SC-56 Lake Erie Correctional Institution 501 Thompson Road P.O. Box 8000 Conneaut, OH 44030 Attorney Paul J. Gains Prosecuting Attorney Attorney Martin P. Desmond Assistant Prosecuting Attorney 21 W. Boardman Street, 6th Floor Youngstown, OH 44503 - 2- Hon. Mary DeGenaro Dated: July 25, 2005 Per Curiam: {¶1} Petition for Writ of Mandamus was filed with this Court on May 26, 2005 seeking a writ to compel Respondent Judge Maureen Cronin to rule on certain pending motions pertaining to post-conviction relief and summary judgment. Pro se Relator Raymond Martinez references motions which he filed on February 22, 2005 and March 30, 2005 seeking post-conviction relief from his underlying conviction. {¶2} In response to an order from this Court granting Respondent time to file an answer or otherwise plead, on June 09, 2005, Respondent filed a motion to dismiss, asserting that the petition was moot. Respondent argues that an April 9, 2005 judgment entry denying the motion for post-conviction relief as being untimely renders the petition moot. The judgment indicated that Relator had filed his petition well in excess of 180 days from the date the transcripts of proceedings were filed. {¶3} In order for a court to issue a writ of mandamus, a Relator must demonstrate "1) that he has a clear legal right to the relief prayed for, 2) that Respondents are under a clear legal duty to perform the acts, and 3) that Relator has no plain and adequate remedy in the ordinary course of the law." State ex rel. Harris v. Rhodes (1978), 54 Ohio St.2d 41, 42. In this case, Relator is not entitled to the extraordinary writ of mandamus since he has an available legal remedy to appeal the judgment of Respondent denying his motion for post-conviction relief. Moreover, such - 3- ruling provides the relief prayed for in the petition and the writ of mandamus will not issue to compel an act already performed. State ex rel. Jerninghan v. Cuyahoga Cty. Court of Common Pleas (1996), 74 Ohio St.3d 278. {¶4} Based on the above, we conclude that the motion to dismiss is meritorious and this petition for writ of mandamus is dismissed as moot. Costs of this proceeding taxed against Relator. {¶5} Final order. Clerk to serve a copy on counsel of record and Relator pursuant to the Civil Rules. Donofrio, P.J., concurs. Waite, P., concurs. DeGenaro, P., concurs.
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