[Cite as Collins v. Sweeney, 2016-Ohio-1171.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE ex rel. KENYATTA COLLINS, 

 RELATOR, 

V. 

JUDGE MAUREEN A. SWEENEY, 

 RESPONDENT. 

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CASE NO. 16 MA 0007 

OPINION 

AND 

JUDGMENT ENTRY 

CHARACTER OF PROCEEDINGS: Petitions for Writs of Mandamus and 

Habeas Corpus 

JUDGMENT: Writ of Mandamus Granted 

Writ of Habeas Corpus Dismissed 

APPEARANCES: 

For Relator Kenyatta Collins, Pro-se 

#651-971 

P.O. Box 8000 

Conneaut, Ohio 44030 

For Respondent Ralph Rivera 

Assistant Prosecutor 

21 West Boardman Street, 6th Floor 

Youngstown, Ohio 44503-1426 

JUDGES: 

Hon. Gene Donofrio 

Hon. Cheryl L. Waite 

Hon. Mary DeGenaro 

 

 

 Dated: March 18, 2016 
[Cite as Collins v. Sweeney, 2016-Ohio-1171.]

PER CURIAM. 

{¶1} Relator/Petitioner Kenyatta Collins has filed this original action on his 

own behalf and captioned it as a combined petition for writs of mandamus and 

habeas corpus. Respondent has filed a combined answer and motion for judgment 

on the pleadings. 

{¶2} In 2014, the Mahoning County Common Pleas Court sentenced Collins 

to eight years in prison after he pleaded guilty to aggravated robbery and attempted 

murder, and the firearm specifications attendant to each of those offenses. State v. 

Collins, Mahoning C.P. No. 2012 CR 00892 (Feb. 6, 2014). Collins did not file an 

appeal. 

{¶3} Over a year later, Collins, proceeding on his own behalf, filed a motion 

to vacate his conviction in the trial court on March 11, 2015. In that motion, Collins 

argued that his conviction for attempted murder was void because that offense is not 

a cognizable crime in Ohio, citing in support the Ohio Supreme Court’s decision in 

State v. Nolan, 141 Ohio St.3d 454, 2014-Ohio-4800, 25 N.E.3d 1016 (holding that 

attempted felony murder is not a cognizable crime in Ohio). 

{¶4} Collins is now seeking to have this Court compel the trial court to rule 

on his March 11, 2015 motion. Collins argues that under the Ohio Supreme Court’s 

Rules of Superintendence, the trial court had a mandatory duty to rule on the motion 

within six months and has failed to do so. Although captioned as a combined petition 

for writs of mandamus and habeas corpus, Collins’s petition does not substantively 

address a petition for writ of habeas corpus. 

{¶5} Generally, a petitioner may file for a writ of mandamus or for a writ of 

procedendo to compel a court to rule on a pending motion. Entitlement to a writ of 

mandamus requires the relator to demonstrate: (1) they have a clear legal right to the 

relief, (2) the respondent has a clear legal duty to provide that relief, and (3) they 

have not adequate remedy at law. State ex rel. Taxpayers for Westerville Schools v. 

Franklin Cty. Bd. of Elections, 133 Ohio St.3d 153, 2012-Ohio-4267, 976 N.E.2d 890, 

¶ 12. Entitlement to a writ of mandamus requires the relator to demonstrate: (1) a 

clear legal right to require the court to proceed, (2) a clear legal duty on the part of 

the court to proceed, and (3) the lack of an adequate remedy in the ordinary course 
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of 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). 

{¶6} Respondent argues that Collins had an adequate remedy in the 

ordinary course of law by way of direct appeal. Respondent’s argument 

misconstrues the type of relief Collins is seeking in his complaint. Collins is simply 

seeking to have the trial court rule on his March 11, 2015 motion. Collins’s pursuit of 

a direct appeal of his conviction and sentence would not necessarily compel the trial 

court to rule on his long-outstanding motion. Nor can Collins appeal a decision on his 

March 11, 2015 motion until it has been ruled upon by the trial court. 

{¶7} Without citing to a specific rule, Collins argues that under the Ohio 

Supreme Court’s Rules of Superintendence the trial court had a mandatory duty to 

rule on his motion within six months. A rule which is commonly referred to in cases 

such as these is Sup.R. 40(A)(3) which states that “[a]ll motions shall be ruled upon 

within one hundred twenty days from the date the motion was filed * * *.” The Ohio 

Supreme Court has held that this rule does not give rise to an enforceable right in 

mandamus or procedendo. State ex rel. Culgan v. Collier, 135 Ohio St.3d 436, 2013-

Ohio-1762, 988 N.E.2d 564, ¶ 8. 

{¶8} However, in Culgan, the Court went on to explain how the rule should 

guide a court’s consideration of a request to compel a ruling: 

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

within 120 days. Although the Rules of Superintendence do not provide 

litigants with a right to enforce Sup.R. 40, the rule does guide this court 

in determining whether a trial court has unduly delayed ruling on a 

motion for purposes of ruling on a request for an extraordinary writ. A 

court that takes more than 120 days to rule on a motion risks unduly 

delaying the case and, as here, risks our issuing writs of mandamus 
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and/or procedendo to compel a ruling. 

That is not to say that claims in mandamus and/or procedendo 

automatically lie simply because a motion remains pending longer than 

120 days. Other factors may dictate that a trial court take more time to 

rule on a motion. For example, a judge may require longer than 120 

days to rule on a motion for summary judgment in a complex case. 

Other factors that might delay a ruling are the need for further 

discovery, the possibility of settlement, and other motions pending in 

the case. See State ex rel. Duncan v. DeWeese, 5th Dist. No. 2011-CA67, 2011-Ohio-5194, 2011 WL 4625370, ¶ 4. This is not an exhaustive 

list; we cannot anticipate all the factors that might allow a court, acting 

within its proper discretion, to delay ruling on a motion past the 120 

days commanded by the rule. 

Id. at ¶¶ 11-12. 

{¶9} Applying the foregoing logic to the matter before it, the Court granted 

the relator’s writ of procedendo noting that his motion, which was a motion to 

terminate postrelease control, dealt with an uncomplicated issue which had been 

pending in the trial court for over a year. The Court also noted that not only did the 

trial court’s failure to rule on the motion exceed the 120 days mandated by Sup.R. 

40(A)(3), but that a ruling on the motion would have mooted relator’s 

mandamus/procedendo action and thus conserved judicial time and resources. 

{¶10} Like the motion involved in Culgan, Collins’s motion pending in the trial 

court here raises a very straightforward and simple issue, and has been pending in 

the trial court for a year. Thus, the trial court’s failure to rule on the motion exceeds 

the 120 days mandated by Sup.R. 40(A)(3). As indicated, the trial court has already 

sentenced Collins, and there remain no other outstanding motions that need to be 

resolved. Accordingly, we grant a writ of mandamus to compel Judge Sweeney to 

rule on Collins’s motion. 

{¶11} Although Collins’s combined writ does not substantively address his 
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petition for a writ of habeas corpus, we will address it briefly. Collins is incarcerated 

at the Lake Erie Correctional Institution which is located in Ashtabula County, Ohio. 

Since Ashtabula County is not one of the counties located within this Court’s 

territorial jurisdiction, we lack jurisdiction over Collins’s petition for writ of habeas 

corpus. R.C. 2725.03. 

{¶12} In sum, we grant a writ of mandamus to compel Judge Sweeney to rule 

on Collins’s motion and Collins’s petition for writ of habeas corpus is dismissed. 

{¶13} Costs taxed against Respondent. 

Donofrio, P.J., concurs. 

Waite, J., concurs. 

DeGenaro, J., concurs.