[Cite as State ex rel. Elkins v. Fais, 2014-Ohio-3886.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio ex rel. David Elkins, : 

 Relator, : 

v. : No. 13AP-870 

Judge David Fais, : (REGULAR CALENDAR) 

 Respondent. : 

 

D E C I S I O N 

Rendered on September 9, 2014 

 

David Elkins, pro se. 

Ron O'Brien, Prosecuting Attorney, and Jeffrey C. Rogers, 

for respondent. 

 

IN PROCEDENDO 

ON RESPONDENT'S MOTION FOR SUMMARY JUDGMENT 

TYACK, J. 

{¶ 1} Relator, David Elkins, a pro se litigant currently incarcerated, filed an 

original action requesting a writ of procedendo ordering respondent, the Honorable David 

Fais of the Franklin County Court of Common Pleas, to resentence him in compliance 

with our judgment in State v. Elkins, 148 Ohio App.3d 370, 2002-Ohio-2914 (10th Dist.). 

Respondent filed a motion for summary judgment. 

{¶ 2} In 2001, a jury found Elkins guilty of a number of charges, including 

multiple counts of robbery, aggravated robbery, felonious assault, and aggravated 

possession of drugs. The trial court sentenced him accordingly. This court affirmed 

Elkins' convictions but remanded the matter for resentencing. Id. After a number of 

subsequent resentencing and appeals, Elkins was resentenced in 2006. Elkins did not 

appeal that 2006 sentencing. 
No. 13AP-870 2 

{¶ 3} On March 26, 2013, Elkins filed a "Motion Requesting Mandatory Hearing 

For Final Appealable Order." This was denied by the trial court on April 22, 2013. Elkins 

filed a notice of appeal on May 28, 2013. We dismissed the case for not being timely 

appealed. Elkins v. State, 10th Dist. No. 13AP-445 (Aug. 23, 2013). 

{¶ 4} On September 10, 2013, Elkins moved this court for leave to file a delayed 

appeal for the original common pleas case. On December 6, 2013, we dismissed this case. 

State v. Elkins, 10th Dist. No. 13AP-780 (Dec. 6, 2013). 

{¶ 5} Before the dismissal of case No. 13AP-780, Elkins filed this procedendo 

action on October 11, 2013. Respondent moved for summary judgment which was 

assigned to the magistrate on December 11, 2013. Elkins responded to the summary 

judgment motion on December 6, 2013. 

{¶ 6} In accord with Loc.R. 13(M) of the Tenth District Court of Appeals, the case 

was referred to a magistrate to conduct appropriate proceedings. The magistrate then 

issued a magistrate's decision, appended hereto, which contains detailed findings of fact 

and conclusions of law. The magistrate's February 14, 2014 decision includes a 

recommendation that we grant respondent's motion for summary judgment and deny 

relator's request for a writ of procedendo. 

{¶ 7} On March 12, 2014, we denied Elkins' motion entitled "Civ.R. 12(B)(5) 

Motion to Strike Magistrate's Judgment as Sham and Motion to Dismiss Upon Due 

Process Violation of U.S. Constitutional Speedy Trial Right." 

{¶ 8} Civ.R. 56(C) states that summary judgment shall be rendered forthwith if: 

[T]he pleadings, depositions, answers to interrogatories, 

written admissions, affidavits, transcripts of evidence, and 

written stipulations of fact, if any, timely filed in the action, 

show that there is no genuine issue as to any material fact and 

that the moving party is entitled to judgment as a matter of 

law. No evidence or stipulation may be considered except as 

stated in this rule. A summary judgment shall not be 

rendered unless it appears from the evidence or stipulation, 

and only from the evidence or stipulation, that reasonable 

minds can come to but one conclusion * * *. 
No. 13AP-870 3 

Accordingly, summary judgment is appropriate only where: (1) no genuine issue of 

material fact remains to be litigated; (2) the moving party is entitled to judgment as a 

matter of law; and (3) viewing the evidence most strongly in favor of the non-moving 

party, reasonable minds can come to but one conclusion and that conclusion is adverse to 

the non-moving party. Tokles & Son, Inc. v. Midwestern Indemn. Co., 65 Ohio St.3d 621, 

629 (1992), citing Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 65-66 

(1978). "[T]he moving party bears the initial responsibility of informing the trial court of 

the basis for the motion, and identifying those portions of the record * * * which 

demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim." Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996); Civ.R. 56(E). 

{¶ 9} Summary judgment is a procedural device to terminate litigation, so it must 

be awarded cautiously with any doubts resolved in favor of the non-moving party. 

Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-59 (1992). 

{¶ 10} To be entitled to a writ of procedendo, a party must show a clear legal right 

to require the court to proceed, a clear legal duty on the part of the court to proceed, and 

the lack of an adequate remedy in the ordinary course of the law. State ex rel. Sherrills v. 

Cuyahoga Cty. Court of Common Pleas, 72 Ohio St.3d 461, 462 (1995). A writ of 

procedendo is proper when a court has refused to enter judgment or has unnecessarily 

delayed proceeding to judgment. State ex rel. Crandall, Pheils & Wisniewski v. 

DeCessna, 73 Ohio St.3d 180, 184 (1995). 

{¶ 11} The writ of procedendo is merely an order from a court of superior 

jurisdiction to one of inferior jurisdiction to proceed to judgment. State ex rel. Utley v. 

Abruzzo, 17 Ohio St.3d 203, 204 (1985). It is well-settled that the writ of procedendo will 

not issue for the purpose of controlling or interfering with ordinary court procedure. Id., 

citing State ex rel. Cochran v. Quillin, 20 Ohio St.2d 6 (1969). 

{¶ 12} A direct appeal as of right constitutes a plain and adequate remedy in the 

ordinary course of the law, the existence of which is fatal to a request for the extraordinary 

remedy of procedendo. Utley at 204, citing State ex rel. Cleveland v. Calandra, 62 Ohio 

St.2d 121, 122 (1980). 
No. 13AP-870 4 

{¶ 13} Upon review, the magistrate's decision contains no error of law or fact. We 

therefore adopt the findings of fact and conclusions of law. As a result, we grant 

respondent's motion for summary judgment and deny relator's request for a writ of 

procedendo. 

Motion for summary judgment granted; 

Writ of procedendo denied. 

KLATT and DORRIAN, JJ., concur. 

 

 
No. 13AP-870 5 

A P P E N D I X 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio ex rel. David Elkins, : 

 Relator, : 

v. : No. 13AP-870 

Judge David Fais, : (REGULAR CALENDAR) 

 Respondent. : 

 

M A G I S T R A T E ' S D E C I S I O N 

Rendered on February 14, 2014 

 

David Elkins, pro se. 

Ron O'Brien, Prosecuting Attorney, and Jeffrey C. Rogers,

for respondent. 

 

IN PROCEDENDO 

ON RESPONDENT'S MOTION FOR SUMMARY JUDGMENT 

{¶ 14} In this original action, relator, David Elkins, an inmate of the Hocking 

Correctional Institution ("HCI") requests a writ of procedendo ordering respondent, the 

Honorable David Fais, a judge of the Franklin County Court of Common Pleas ("common 

pleas court"), to resentence him in compliance with this court's June 11, 2002 judgment in 

case No. 01AP-1069 regarding consecutive sentencing. 

Findings of Fact: 

{¶ 15} 1. On October 11, 2013, relator, an HCI inmate, filed this procedendo action. 

{¶ 16} 2. On November 13, 2013, respondent moved for summary judgment. 
No. 13AP-870 6 

{¶ 17} 3. On November 21, 2013, the court administrator issued notice that 

respondent's motion for summary judgment is set for submission to the magistrate on 

December 11, 2013. 

{¶ 18} 4. On December 6, 2013, relator filed his written response to the motion for 

summary judgment. 

{¶ 19} 5. Earlier, in common pleas court case No. 00CR-7245, a jury returned a 

verdict finding relator guilty of multiple felony offenses. On August 9, 2001, respondent 

held a sentencing hearing. On August 17, 2001, respondent filed his judgment entry. 

{¶ 20} 6. Relator appealed the August 17, 2001 judgment to this court. The appeal 

was assigned case No. 01AP-1069. On June 11, 2002, this court issued its opinion and 

filed its judgment entry in case No. 01AP-1069. State v. Elkins, 148 Ohio App.3d 370, 

2002-Ohio-2914. This court's judgment entry states: 

For the reasons stated in the opinion of this court rendered 

herein on June 11, 2002, and having overruled defendant's 

first, second, and fifth assignments of error, but having 

sustained defendant's third and fourth assignments of error to 

the extent indicated, it is the judgment and order of this court 

that the judgment of the Franklin County Court of Common 

Pleas is affirmed in part and reversed in part, and this cause is 

remanded to that court for resentencing only, consistent with 

said opinion. 

{¶ 21} 7. On April 25, 2003, respondent held a resentencing hearing in case No. 

00CR-7245 in response to this courts June 11, 2002 judgment. On April 30, 2003, 

respondent filed his judgment entry. 

{¶ 22} 8. Relator appealed the April 30, 2003 judgment to this court. The appeal 

was assigned case No. 03AP-515. On February 24, 2004, this court issued its opinion in 

case No. 03AP-515. State v. Elkins, 156 Ohio App.3d 281, 2004-Ohio-842. On April 2, 

2004, this court filed its judgment entry in case No. 03AP-515: 

For the reasons stated in the opinion of this court rendered 

herein on February 24, 2004, appellant's sole assignment of 

error is sustained to the extent that the case is remanded to 

the trial court for resentencing in regard to the length of the 

prison term, if any, to be imposed upon appellant for conduct 

demeaning to the seriousness of the offense. In doing so, the 

court should consider only the factor that appellant attempted 
No. 13AP-870 7 

to inflict serious injury on police officers while fleeing the 

crime scene. No further evidence should be taken in regard to 

this factor or any other factor. Therefore, it is the judgment 

and order of this court that the judgment of the Franklin 

County Court of Common Pleas is reversed, and this case is 

remanded to that court for further proceedings in accordance 

with law, consistent with this opinion. 

{¶ 23} 9. On October 15, 2004, respondent held a resentencing hearing in case No. 

00CR-7245 in response to this court's April 2, 2004 judgment. On April 13, 2005, 

respondent filed his judgment entry. 

{¶ 24} 10. Relator appealed the April 13, 2005 judgment to this court. The appeal 

was assigned case No. 05AP-480. On March 9, 2006, this court filed its judgment entry 

in case No. 05AP-480: 

Defendant-appellant, David Elkins, appeals from the 

judgment of the Franklin County Court of Common Pleas on 

his felony convictions. Specifically, in his first and second 

assignments of error, appellant challenges the validity of his 

prison sentences. Recognizing that the trial court sentenced 

appellant on an unconstitutional statute, R.C. 

2929.14(D)(3)(b), we sustain appellant's first and second 

assignments of error on the authority of State v. Foster, __ 

Ohio St.3d __, 2006-Ohio-856. Accordingly, we reverse the 

judgment of the Franklin County Court of Common Pleas and 

remand this cause to the trial court for resentencing pursuant 

to Foster.

{¶ 25} 11. On June 14, 2006, respondent held a resentencing hearing in case No. 

00CR-7245 in response to this court's March 9, 2006 judgment entry. On June 23, 2006, 

respondent filed his judgment entry. 

{¶ 26} 12. Relator did not timely appeal respondent's June 23, 2006 judgment 

entry to this court. 

{¶ 27} 13. On March 26, 2013, relator filed a motion in common pleas court case 

No. 00CR-7245. The motion was captioned: "Motion Requesting Mandatory Hearing 

For Final Appealable Order." 

{¶ 28} 14. On April 22, 2013, respondent filed an entry denying relator's March 26, 

2013 motion. 
No. 13AP-870 8 

{¶ 29} 15. On May 28, 2013, relator filed a notice of appeal in this court from the 

April 22, 2013 entry of respondent. The appeal was assigned case No. 13AP-445. On 

August 23, 2013, this court filed its journal entry of dismissal in case No. 13AP-445. 

{¶ 30} 16. On September 10, 2013, pursuant to App.R. 5, relator moved this court 

for leave to file a delayed appeal from common pleas court case No. 00CR-7245. Relator's 

September 10, 2013 motion was assigned case No. 13AP-780. 

{¶ 31} 17. On December 6, 2013, this court filed its journal entry of dismissal in 

case No. 13AP-780. 

Conclusions of Law: 

{¶ 32} It is the magistrate's decision that this court grant respondent's motion for 

summary judgment. 

{¶ 33} Summary judgment is appropriate when the movant demonstrates that: (1) 

there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a 

matter of law; and (3) reasonable minds can come to but one conclusion, and that 

conclusion is adverse to the party against whom the motion for summary judgment is 

made, said party being entitled to have the evidence construed most strongly in his favor. 

Turner v. Turner, 67 Ohio St.3d 337, 339-40 (1993); Bostic v. Connor, 37 Ohio St.3d 144, 

146 (1988); Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66 (1978). The 

moving party bears the burden of proving no genuine issue of material fact exists. Mitseff 

v. Wheeler, 38 Ohio St.3d 112, 115 (1988). 

{¶ 34} In the last paragraph of his complaint, relator presumably sets forth his 

demand for relief: 

For all the foregoing reasons, David Elkins requests this 

court to issue a Writ of Procedendo compelling respondent, 

Judge David Fais to hold a sentencing hearing in compliance 

with Ohio law, and this Court's June 11, 2002 judgment, 

addressing, consecutive sentencing. In addition, Mr. Elkins 

hereby request this Court to have his sentence reviewed by a 

sitting Judge. Judge Fais has had four opportunities to get 

this right and has refused. 

{¶ 35} In his response to respondent's motion for summary judgment, relator 

states: 
No. 13AP-870 9 

The Respondent blatantly refuses to obey this Court, not 

once—but time after time, which has prompted my four 

appeals which the Respondent terms as "a continuing trend". 

Respondent argues that I have to establish that Respondent 

has a clear legal duty to act. The simple fact is the 

Respondent Judge has the duty to obey (or act) this Court's 

mandates. When he refuses to do so, even after several 

appeals to this Court, then the ONLY remedy at law is a 

Petition of Procedendo. 

(Emphasis sic.) 

{¶ 36} A writ of procedendo is merely an order from a court of superior jurisdiction 

to one of inferior jurisdiction to proceed to judgment. State ex rel. Utley v. Abruzzo, 17 

Ohio St.3d 203, 204 (1985). A writ does not in any case attempt to control the inferior 

court as to what that judgment should be. Id. A writ of procedendo will not issue where 

an adequate remedy exists in the ordinary course of law. Id. 

{¶ 37} It is axiomatic that a direct appeal as of right constitutes a plain and 

adequate remedy in the ordinary course of law. Id. 

{¶ 38} Here, relator had a direct appeal as of right to this court from respondent's 

June 23, 2006 judgment entry. Relator failed to timely appeal the judgment. The 

availability of a direct appeal as of right from the June 23, 2006 judgment is a plain and 

adequate remedy in the ordinary course of the law that bars this original action for a writ 

of procedendo. Id. 

{¶ 39} Accordingly, it is the magistrate's decision that this court grant respondent's 

motion for summary judgment and deny relator’s request for a writ of procedendo. 

 /S/ MAGISTRATE 

 KENNETH W. MACKE 
No. 13AP-870 10 

NOTICE TO THE PARTIES 

Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign 

as error on appeal the court's adoption of any factual finding 

or legal conclusion, whether or not specifically designated as 

a finding of fact or conclusion of law under Civ.R. 

53(D)(3)(a)(ii), unless the party timely and specifically 

objects to that factual finding or legal conclusion as required 

by Civ.R. 53(D)(3)(b).