State ex rel. Pedraza v. Kimbler

S
[Cite as State ex rel. Pedraza v. Kimbler, 2021-Ohio-993.]


STATE OF OHIO                      )                         IN THE COURT OF APPEALS
                                   )ss:                      NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                   )

STATE EX REL. BENJAMIN
PEDRAZA, III
                                                             C.A. No.   20CA0055-M
        Relator

        v.

MEDINA COUNTY COURT OF                                       ORIGINAL ACTION IN
COMMON PLEAS JUDGE JOYCE V.                                  PROCEDENDO
KIMBLER

        Respondent



Dated: March 29, 2021


        PER CURIAM.

        {¶1}     Relator Benjamin Pedraza has filed a petition asking this Court for a writ

of procedendo ordering Respondent, Judge Joyce V. Kimbler, to rule on his pending

motions. Judge Kimbler has moved to dismiss the complaint as moot. Because Mr.

Pedraza’s motions were implicitly denied, Mr. Pedraza’s claim is moot and this Court

dismisses his petition.

        {¶2}     When this Court reviews a motion to dismiss under Civ.R. 12(B)(6), we

must presume that all of the factual allegations in the petition are true and make all

reasonable inferences in favor of the nonmoving party. State ex rel. Seikbert v. Wilkinson,

69 Ohio St. 3d 489

, 490 (1994). A petition can only be dismissed when, having viewed

the complaint in this way, it appears beyond doubt that the relator can prove no set of
                                                                         C.A. No. 20CA0055-M
                                                                                    Page 2 of 5

facts that would entitle him to the relief requested. Goudlock v. Voorhies, 

119 Ohio St. 3d

389

, 2008-Ohio-4787, ¶ 7. With this standard in mind, we begin with the facts alleged in

the petition.

       {¶3}     According to the petition, while represented by counsel during the

proceedings leading up to his trial, Mr. Pedraza filed a pro se “Motion for Right to Speedy

Trial.” By this motion, Mr. Pedraza attempted to invoke his right to a speedy trial. After

he was convicted, Mr. Pedraza filed another pro se motion captioned “Motion to Render

Judgment” in which he moved Judge Kimbler to rule on the motion for right to speedy

trial he previously filed.

       {¶4}     To obtain a writ of procedendo, Mr. Pedraza must establish that he has a

clear legal right to require Judge Kimbler to proceed, that the judge has a clear legal duty

to proceed, and that there is no adequate remedy available in the ordinary course of law.

State ex rel. Ward v. Reed, 

141 Ohio St. 3d 50

, 2014-Ohio-4512, ¶ 9, citing State ex rel.

Sherrills v. Cuyahoga Cty. Court of Common Pleas, 

72 Ohio St. 3d 461

, 462 (1995).

Procedendo is the appropriate remedy when a court has refused to render a judgment or

has unnecessarily delayed proceeding to judgment. See, e.g., State ex rel. CNG Financial

Corp. v. Nadel, 

111 Ohio St. 3d 149

, 2006-Ohio-5344, ¶ 20. It is well-settled that

procedendo will not “compel the performance of a duty that has already been performed.”

State ex rel. Grove v. Nadel, 

84 Ohio St. 3d 252

, 253, 1998-Ohio-541. In other words,

once an act has been completed, the matter is moot. See, e.g., State ex rel. Eichenberger

v. Jamison, 10th Dist. Franklin No. 19AP-98, 2019-Ohio-2622, ¶ 12.
                                                                         C.A. No. 20CA0055-M
                                                                                    Page 3 of 5

       {¶5}   Mr. Pedraza sought a writ of procedendo to order Judge Kimbler to rule on

his two motions. Judge Kimbler moved to dismiss. She argued that when she did not

expressly rule on the motion for a speedy trial, it was deemed denied at the conclusion of

the case. She also argued that Mr. Pedraza could have raised this issue on his direct appeal

to this Court, giving him an adequate remedy.

                          The motion for speedy trial was moot

       {¶6}   We agree with Judge Kimbler that the motion for a speedy trial was deemed

denied at the conclusion of Mr. Pedraza’s criminal case. The Eighth District Court of

Appeals addressed this precise issue and concluded the motion that was the subject of the

procedendo action was deemed denied:

       To the extent that there were motions that the trial judge did not explicitly
       resolve, they are deemed denied. In State ex rel. Harris v. Sheehan, 8th
       Dist. No. 93516, 2009–Ohio–4196, the relator commenced a procedendo
       action to compel the judge to rule on various motions in a criminal case in
       which he had been found guilty and sentenced. This court dismissed the
       writ action as moot, because “[a]ny pending motions, upon disposition of
       the underlying criminal cases are ‘deemed to be denied.’” Harris at ¶ 3.
       Whitman v. Strickland Saffold, 8th Dist. No. 94539, 2010–Ohio–2232.

State ex rel. Nash v. Fuerst, 8th Dist. Cuyahoga No. 99027, 2013-Ohio-592, ¶ 8. See,

also, State ex rel. Stanley v. D’Apolito, 7th Dist. Mahoning No. 12 MA 218, 2013-Ohio-

428, ¶ 10.

       {¶7}   The motion for speedy trial was deemed denied at the conclusion of the

criminal case. This Court cannot grant a writ of procedendo to compel an action which

has already been completed. Accordingly, this matter is moot as it relates to the motion

for speedy trial.
                                                                        C.A. No. 20CA0055-M
                                                                                   Page 4 of 5

                                No clear legal duty to act

       {¶8}   Mr. Pedraza also cannot demonstrate that Judge Kimbler had a clear legal

duty to proceed as to the motion for speedy trial.

       {¶9}   Mr. Pedraza filed his motion for speedy trial when he was represented by

counsel. Ohio law does not permit hybrid representation. State v. Martin, 

103 Ohio St. 3d

385

, 2004-Ohio-5471, ¶ 32. “This Court has also concluded that, because a defendant

does not have a right to hybrid representation, a trial court should not entertain pro se

motions filed while a defendant is represented by counsel.” State v. Hill, 9th Dist. Summit

No. 29331, 2019-Ohio-5329, ¶ 10. Accordingly, Mr. Pedraza cannot demonstrate that

Judge Kimbler had a clear legal duty to proceed to rule on the speedy trial motion.

                     Procedendo will not issue to compel a vain act

       {¶10} Turning to the motion to render judgment, even if Mr. Pedraza could satisfy

the requirements for this Court to issue a writ of procedendo, the writ will not issue to

compel a vain act. State ex rel. Morenz v. Kerr, 

104 Ohio St. 3d 148

, 2004-Ohio-6208, ¶

35. At the time he filed the motion to render judgment, the motion for speedy trial had

been deemed denied. If this Court were to grant a writ of procedendo to order Judge

Kimbler to rule on the motion, it would be a vain act. As the Supreme Court has held

under similar circumstances, an order “to the trial court for a perfunctory ruling now

would require a vain act, and this court will not countenance such an act by issuance of

the extraordinary prerogative writ of procedendo.” State ex rel. Garnett v. Lyons, 44 Ohio

St.2d 125, 127.
                                                                         C.A. No. 20CA0055-M
                                                                                    Page 5 of 5

                                       Conclusion

       {¶11} Upon review of the complaint and motion to dismiss, this Court grants

Judge Kimbler’s motion and this case is dismissed. Costs taxed to Mr. Pedraza.

       {¶12} The clerk of courts is hereby directed to serve upon all parties not in default

notice of this judgment and its date of entry upon the journal. Civ.R. 58.




                                                  LYNNE S. CALLAHAN
                                                  FOR THE COURT
HENSAL, J.
TEODOSIO, J.
CONCUR.

APPEARANCES:

BENJAMIN PEDRAZA, III, Pro se, Petitioner.

S. FORREST THOMPSON, Prosecuting Attorney, and MICHAEL K. LYONS and
VINCENT V. VIGLUICCI, Assistant Prosecuting Attorneys, for Respondent.

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