[Cite as State ex rel. Brown v. Luebbers, 137 Ohio St.3d 542, 2013-Ohio-5062.] 

[THE STATE EX REL.] BROWN, APPELLANT, v. LUEBBERS, JUDGE, APPELLEE. 

[Cite as State ex rel. Brown v. Luebbers, 137 Ohio St.3d 542, 2013-Ohio-5062.] 

Procedendo will lie when a court has unduly delayed rendering a judgment on a 

motion—Judgment denying writ reversed—Writ of procedendo granted.

(No. 2013-0644—Submitted September 10, 2013—Decided November 20, 2013.) 

APPEAL from the Court of Appeals for Hamilton County, No. C-130119. 

_____________________ 

Per Curiam.

{¶ 1} This is an appeal from a court of appeals’ judgment dismissing a 

petition for a writ of procedendo to compel a trial judge to rule on various 

motions, including a motion to vacate an entry that had corrected an error in a 

sentencing entry. Appellee, Judge Jody Luebbers, has not ruled on the motions 

and apparently does not intend to rule on them. Appellant, Barron Brown, filed a 

complaint for a writ of procedendo in the First District Court of Appeals to force 

the judge to rule on his motions. 

{¶ 2} The court of appeals dismissed the complaint, and Brown appealed 

to this court. Because Judge Luebbers has jurisdiction but has not ruled on the 

motions, we reverse. 

Facts 

{¶ 3} In 2004, Brown was found guilty of one count of possession of 

heroin and one count of trafficking in heroin, both with specifications, and one 

count of conspiracy. After finding Brown to be a major drug offender, the trial 

court sentenced him to 27 years. According to the First District Court of Appeals, 

the conviction for conspiracy was reversed, but the judgment was otherwise 

affirmed. State v. Brown, 1st Dist. Hamilton No. C-081026, 2009-Ohio-5347, 
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¶ 2. We declined further review. State v. Brown, 106 Ohio St.3d 1488, 2005-

Ohio-3978, 832 N.E.2d 739. 

{¶ 4} In a postconviction petition filed in 2008, Brown sought 

resentencing because he had not been advised that he would be subject to 

postrelease control. The trial court denied his petition, but the court of appeals 

vacated his sentence and remanded, ordering the trial court to hold a new 

sentencing hearing and notify Brown of his postrelease-control obligations. State 

v. Brown, 1st Dist. Hamilton No. C-081026, 2009-Ohio-5347. 

{¶ 5} On remand, the trial court resentenced Brown, this time to 20 

years, but did not notify him of a mandatory term of postrelease control. On 

appeal, the court of appeals once again remanded, ordering the trial court to give 

the proper notification about postrelease control. State v. Brown, 1st Dist. 

Hamilton No. C-10050, 2010-Ohio-4599. 

{¶ 6} The trial court once again resentenced Brown, notifying him that 

the term of postrelease control was mandatory. But the trial court also indicated 

that the conspiracy count merged with another count for sentencing purposes. 

This was in error, because the court of appeals had already reversed the 

conspiracy conviction. The court of appeals remanded once again to correct the 

error. The trial court corrected it in a nunc pro tunc entry on February 13, 2012. 

{¶ 7} Brown then filed a motion to vacate the nunc pro tunc order 

because he believes it to be void. Judge Luebbers has not ruled on this motion. 

Brown therefore filed this action in procedendo in the court of appeals. 

{¶ 8} With little explanation, the court of appeals denied the writ. 

Brown’s appeal is now before the court for our consideration of the merits. 

Legal Analysis 

{¶ 9} The court of appeals dismissed Brown’s complaint for a writ of 

procedendo on the basis that he “has not demonstrated a clear legal right to 

procedendo,” with no further analysis. 
January Term, 2013 

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{¶ 10} To be entitled to a writ of procedendo, Brown 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, 650 N.E.2d 899 (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, 652 N.E.2d 742 (1995). 

{¶ 11} Here, Brown has moved to vacate the nunc pro tunc entry of 

February 13, 2012. Judge Luebbers argues that she was divested of jurisdiction to 

entertain Brown’s subsequent filings once she had corrected the erroneous 

sentencing entry on remand from the court of appeals. 

{¶ 12} However, even if that is true, Judge Luebbers may rule on the 

motions, giving lack of jurisdiction as a reason. Absent a patent and 

unambiguous lack of jurisdiction, a court with general subject-matter jurisdiction 

may determine its own jurisdiction. State ex rel. Jean-Baptiste v. Kirsch, 134 

Ohio St.3d 421, 2012-Ohio-5697, 983 N.E.2d 302, ¶ 16; State ex rel. Plant v. 

Cosgrove, 119 Ohio St.3d 264, 2008-Ohio-3838, 893 N.E.2d 485, ¶ 5; State ex 

rel. Pruitt v. Donnelly, 129 Ohio St.3d 498, 2011-Ohio-4203, 954 N.E.2d 117, 

¶ 2. 

{¶ 13} Judge Luebbers clearly has general subject-matter jurisdiction over 

Brown’s criminal case and therefore has jurisdiction to consider Brown’s motions 

and to dismiss them if she finds that she lacks jurisdiction to rule on their merits. 

{¶ 14} What she cannot do is simply fail to rule on motions before her. 

Sup.R. 40(A)(3) imposes on trial courts a duty to rule on motions within 120 

days. State ex rel. Culgan v. Collier, 135 Ohio St.3d 436, 2013-Ohio-1762, 988 

N.E.2d 564, ¶ 11. Although the Rules of Superintendence do not provide litigants 

with a right to enforce Sup.R. 40, “ ‘procedendo and mandamus will lie when a 
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trial court has refused to render, or unduly delayed rendering, a judgment.’ ” 

Culgan at ¶ 10, quoting State ex rel. Reynolds v. Basinger, 99 Ohio St.3d 303, 

2003-Ohio-3631, 791 N.E.2d 459, ¶ 5; see also State ex rel. Weiss v. Hoover, 84 

Ohio St.3d 530, 532, 705 N.E.2d 1227 (1999). 

{¶ 15} While the 120-day rule is not rigid, a court with general subjectmatter jurisdiction over a matter must eventually rule on motions or risk having a 

writ of procedendo granted. Culgan at ¶ 12. Because Judge Luebbers has not 

ruled on the motions before her in a case over which she has general jurisdiction, 

Brown’s action for a writ of procedendo has merit. 

{¶ 16} We therefore grant a writ of procedendo to compel Judge Luebbers 

to rule on Brown’s motions. 

Judgment reversed 

and writ granted. 

O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,

FRENCH, and O’NEILL, JJ., concur. 

_____________________ 

 Barron Brown, pro se. 

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. 

Cummings, Assistant Prosecuting Attorney, for appellee. 

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