[Cite as Bunkley v. State, 2020-Ohio-4433.]

IN THE COURT OF APPEALS OF OHIO 

SEVENTH APPELLATE DISTRICT 

MAHONING COUNTY

LEBRON BUNKLEY, 

Relator, 

v. 

STATE OF OHIO, 

Respondent.

 

OPINION AND JUDGMENT ENTRY 

Case No. 19 MA 0137 

 

Petition for Writ of Mandamus 

BEFORE: 

Carol Ann Robb, Cheryl L. Waite, Judges and Judge Mary Jane Trapp, Judge of the 

Eleventh District Court of Appeals, Sitting by Assignment

JUDGMENT: 

Dismissed. 

Lebron Bunkley. pro se., P.O. Box 8000, Bradford, Pennsylvania, for Relator and 

Atty. Paul J. Gains, Mahoning County Prosecutor, Atty. Ralph M. Rivera, Assistant 

Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503, 

for Respondent. 

 

Dated: 8/21/20 
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Case No. 19 MA 0137

 

PER CURIAM. 

{¶1} Relator Lebron Bunkley, proceeding on his own behalf, initiated this original 

action by filing a petition for writ of mandamus against Respondent State of Ohio seeking 

to compel the Mahoning County Common Pleas Court to rule on a motion he filed in 2016 

in one of his criminal cases in that court. Statutory counsel for Respondent is the 

Mahoning County Prosecutor’s Office, R.C. 309.09(A), and through Assistant Prosecutor 

Ralph M. Rivera, it has responded with a combined answer and motion to dismiss. 

Because Respondent has ruled on Relator’s motion, the matter is moot, requiring 

dismissal. 

{¶2} On July 14, 2011, the Mahoning County Grand Jury issued two indictments 

against Relator resulting in his being named as a criminal defendant in two Mahoning 

County Common Pleas Courts cases. The first case (2011 CR 00666) stemmed from 

events occurring on June 13, 2011, which resulted in the grand jury charging him with two 

counts. Count one was failure to comply with an order or signal of a police officer in 

violation of R.C. 2921.331(B)(C)(5)(a)(ii), a third-degree felony. Count two was for assault 

(on a police officer) in violation of R.C. 2903.13(A(C)(3), a fourth-degree felony. 

{¶3} The second case (2011 CR 00702) stemmed from events occurring on June 

17, 2011, which resulted in the grand jury charging Relator with two counts of aggravated 

possession of drugs (count one – Endocet and count two – Oxycodone) in violation of 

R.C. 2925.11(A)(C)(1)(b), third-degree felonies. Each count also contained a forfeiture 

specification for $4,490.00 in U.S. currency. 

{¶4} The parties reached a Crim.R. 11(F) plea agreement resolving both cases 

at a plea and sentencing hearing conducted by the trial court on November 23, 2011. The 

written plea agreements reflect that Relator acknowledged the maximum sentence for 

each of the offenses with which he was charged: 3 years for failure to comply with an 

order or signal of a police officer; 18 months for assault; and 3 years for the counts of 

aggravated possession of drugs which merged for the purposes of sentencing but also 

attached a statutory presumption that a prison term is necessary. Pursuant to the 

agreement, Relator pleaded guilty as charged in both cases. In exchange, for case no. 
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Case No. 19 MA 0137

2011 CR 00666, the State agreed to recommend a one-year term of imprisonment for the 

failure to comply with an order or signal of a police officer conviction, a one-year term of 

imprisonment for the assault conviction to be served concurrently with each other and 

with an unidentified federal court sentence. In case no. 2011 CR 00702, the State agreed 

to recommend a three-year term of imprisonment for aggravated possession of drugs to 

be served concurrently with the recommended sentence in case no. 2011 CR 00666 and 

concurrently with the unidentified federal court sentence. Thus, as to the state 

convictions, the trial court sentenced Relator to the recommended aggregate sentence of 

three-years imprisonment. As indicated, the terms of the federal court sentence are never 

identified in the plea agreements or judgment entries of sentence. 

{¶5} Over five years later during which time Relator sought twice unsuccessfully 

to obtain judicial release, he filed a motion to vacate plea, conviction and sentence as 

void ab initio on November 29, 2016. He argued he did not enter his guilty pleas 

knowingly and voluntarily because his appointed trial counsel did not provide him with a 

copy of the discovery resulting in ineffective assistance of counsel. He contended that 

manifest injustice resulted because his pleas were used in federal court to enhance his 

federal sentence. Retained counsel for Relator filed a supplement to his motion on 

December 21, 2016. He clarified that Relator was in federal custody at the time he 

entered his pleas in state court. He too argued Relator’s appointed trial counsel was 

ineffective for allowing Relator to enter the pleas because he should have known and 

advised Relator that the pleas would result in his designation under federal sentencing 

guidelines as an Armed Career Criminal, “dramatically” increasing his exposure to an 

enhancement of his federal sentence. 

{¶6} Thereafter, the trial court judge who had presided over both of Relator’s 

cases retired and there was an election to fill his seat on the bench. The Mahoning 

County Common Pleas Court, General Division, is comprised of five judges. Relator’s 

cases were assigned to Judge Lou A. D’Apolito. Judge D’Apolito retired and Judge 

Anthony Donofrio was elected to his seat on the bench. 

{¶7} Next, we address two insubstantial procedural issues for the sake of clarity 

and judicial uniformity. First, we note Relator’s petition is improperly captioned as “Lebron 

Bunkley v. State of Ohio.” R.C. 2731.04, which specifically addresses the captioning of 
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Case No. 19 MA 0137

an application for a writ of mandamus, states in relevant part: “Application for the writ of 

mandamus must be by petition, in the name of the state on the relation of the person 

applying, and verified by affidavit.” Therefore, Relator’s complaint should be recaptioned 

“The State ex rel. Bunkley v. The Honorable Anthony Donofrio, Mahoning County Court 

of Common Pleas, General Division” or, similarly, “The State ex rel. Bunkley v. Judge 

Anthony Donofrio, Mahoning County Common Pleas Court, General Division.” State ex 

rel. Clay v. Gee, 138 Ohio St.3d 151, 2014-Ohio-48, 4 N.E.3d 1026, ¶ 1, fn. 1 (recaptioning procedendo action and noting “[t]hroughout this litigation, this case has been 

incorrectly captioned State v. Clay.”). Which leads us to the second issue—the 

substantive nature of the petition. 

{¶8} Although mandamus is technically available as an original action to pursue 

in cases of a court’s alleged undue delay in entering judgment, in recent years, the Ohio 

Supreme Court’s has reiterated its position favoring procedendo as the more appropriate 

original action, since “[a]n inferior court’s refusal or failure to timely dispose of a pending 

action is the ill a writ of procedendo is designed to remedy.” State ex rel. Levin v. Sheffield 

Lake, 70 Ohio St.3d 104, 110, 637 N.E.2d 319 (1994); State ex rel. Dehler v. Sutula, 74 

Ohio St.3d 33, 35, 656 N.E.2d 332, (1995); State ex rel. Doe v. Gallia Cty. Common Pleas 

Court, 153 Ohio St.3d 623, 2018-Ohio-2168, 109 N.E.3d 1222, ¶ 14, reconsideration 

denied sub nom. Doe v. Gallia Common Pleas Court, 153 Ohio St.3d 1460, 2018-Ohio3257, 104 N.E.3d 791. 

{¶9} The original jurisdiction of the Ohio Supreme Court and the Courts of 

Appeals is nearly identical as forth in the Ohio Constitution. Each have original jurisdiction 

over writs of quo warranto, mandamus, habeas corpus, prohibition, and procedendo. Ohio 

Constitution, Article IV, Section 2(B)(1)(a)-(f) (Ohio Supreme Court); Ohio Constitution, 

Article IV, Section 3(B)(1)(a)-(f) (Courts of Appeals). The same rules concerning the 

constitutional original jurisdiction of the Ohio Supreme Court in these writs apply equally 

to the Court of Appeals. See State ex rel. Pressley v. Indus. Commission, 11 Ohio St.2d 

141, 162, 228 N.E.2d 631, 647 (1967). Moreover, because of the Ohio Constitution’s 

coextensive grant of original jurisdiction over these writs, Courts of Appeals are vested 

with same plenary authority over original actions instituted before it as the Ohio Supreme 

Court has over original actions instituted before it. In examining Ohio Constitution, Article 
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IV, Section 2, which in addition to setting forth the Ohio Supreme Court’s original 

jurisdiction over the aforementioned writs, also defines its appellate jurisdiction, the Court 

long ago succinctly delineated this concept of a court’s plenary authority over an original 

action: “This provides for jurisdiction of two kinds, original and appellate. The appellate 

is only ‘such as may be provided by law.’ But the original jurisdiction is plenary, it is all 

the jurisdiction, as it existed at common law, as to the occasions of its exercise, though 

not necessarily in its forms.” (Emphasis sic.) State ex rel. Grisell v. Marlow, 15 Ohio St. 

114, 125 (1864). 

{¶10} The Ohio Supreme Court has acknowledged and exercised this plenary 

authority to convert an original action, although improperly styled, to a different (and the 

appropriate) original action to which the substance of the pleadings align. State ex rel. 

Doe v. Gallia Cty. Common Pleas Court, 153 Ohio St.3d 623, 2018-Ohio-2168, 109 

N.E.3d 1222, reconsideration denied sub nom. Doe v. Gallia Common Pleas Court, 153 

Ohio St.3d 1460, 2018-Ohio-3257, 104 N.E.3d 791 (converting a criminal defendant’s 

petition for a writ of mandamus to compel the trial court to rule on his motion to seal his 

conviction into a petition for a writ of procedendo); State ex rel. Eaton Corp. v. Lancaster, 

40 Ohio St.3d 404, 410, 534 N.E.2d 46, 52 (1988), on reh’g, 44 Ohio St.3d 106, 541 

N.E.2d 64 (1989) (converting workers compensation claimaints’ original action from 

prohibition to mandamus where claimants had presented medical evidence uniformly 

indicating their condition had become permanent yet the Industrial Commission continued 

to issue only temporary total disability as a matter of policy). 

{¶11} Therefore, this Court, on its own accord, converts Relator’s petition for a 

writ of mandamus to what is substantively, and more appropriately entitled, a petition for 

a writ of procedendo. Unlike mandamus, there is no comparable statutory requirement 

for procedendo cases to be brought by petition, in the name of the state on the relation of 

the person applying. However, the Ohio Supreme Court has held that a petition for a writ 

of procedendo be by petition, in the name of the state on the relation of the person 

applying. Clay, supra. Again, there are no statutory provisions governing procedendo. 

Concerning procedure, the Ohio Rules of Civil Procedure are applicable in the absence 

of a local rule of court. And the remainder, both procedurally and substantively, is left to 

the courts to decide. 
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Case No. 19 MA 0137

{¶12} As an aside, it is worth mentioning that concerning the statutory requirement 

for mandamus actions that they be captioned in the name of the state on the relation of 

the person applying, the Ohio Supreme Court has held that the requirement is not 

jurisdictional, observing “we recently held the requirements of that statute (R.C. 2731.04) 

are not jurisdictional,” noting a number of cases that were not dismissed for the relator’s 

failure to caption his or her complaint in the name of the state. Doe at ¶ 8, cting Salemi v. 

Cleveland Metroparks, 145 Ohio St.3d 408, 2016-Ohio-1192, 49 N.E.3d 1296, ¶ 15. 

{¶13} “A writ of procedendo is appropriate when a court has either refused to 

render a judgment or has unnecessarily delayed proceeding to judgment.” State ex rel. 

Weiss v. Hoover, 84 Ohio St.3d 530, 532, 705 N.E.2d 1227 (1999). “To be entitled to a 

writ of procedendo, a relator must establish (1) a clear legal right to require the respondent 

to proceed, (2) a clear legal duty on the part of the respondent to proceed, and (3) the 

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

Croce, 153 Ohio St.3d 348, 2018-Ohio-2703, 106 N.E.3d 55 ¶ 6. “The writ of procedendo 

is merely an order from a court of superior jurisdiction to one of inferior jurisdiction to 

proceed to judgment. It does not in any case attempt to control the inferior court as to 

what that judgment should be.” State ex rel. Davey v. Owen, 133 Ohio St. 96, 106, 12 

N.E.2d 144 (1937). 

{¶14} In this case, counsel for Respondent included in his combined answer and 

motion Exhibit No. 1. Exhibit No. 1 is a copy of a Judgment Entry issued by Respondent 

and filed with the clerk of courts on January 6, 2020. In the entry, Judge Donofrio, Judge 

D’Apolito’s successor, stated Relator’s November 29, 2016 motion to vacate his plea had 

just recently come to the court’s attention. The entry concludes stating Respondent had 

considered Relator’s motion and expressly overruled it. 

{¶15} Relator has not contested Respondent’s mootness argument. Moreover, 

and more specifically, Relator has not submitted a response or brief in opposition to 

Respondent’s motion to dismiss thereby admitting Respondent’s assertion concerning 

the issuance of a judgment entry disposing of the pending motion in the underlying 

criminal actions. Therefore, this original action is now moot. “A writ of procedendo will 

not issue to compel the performance of a duty that has already been performed.” State 

ex rel. Bortoli v. Dinkelacker, 105 Ohio St.3d 133, 2005-Ohio-779, 823 N.E.2d 448, ¶ 3. 
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Case No. 19 MA 0137

{¶16} Accordingly, the Court grants Respondent’s motion to dismiss and orders 

this case dismissed. 

{¶17} Costs taxed against Relator. Final order. Clerk to serve copies of this 

decision and judgment entry pursuant to the civil rules. 

 

JUDGE CAROL ANN ROBB 

JUDGE CHERYL L. WAITE 

JUDGE MARY JANE TRAPP 

ELEVENTH DISTRICT COURT OF APPEALS 

SITTING BY ASSIGNMENT