[Cite as State ex rel. Steele v. McIntosh, 2018-Ohio-3063.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

The State ex rel. : 

Brandon Steele, 

 : 

 [Relator], 

 : 

v. No. 18AP-57 

 : 

Stephen L. McIntosh, Judge, (REGULAR CALENDAR) 

 : 

 Respondent. 

 : 

 

D E C I S I O N 

Rendered on August 2, 2018

 

Brandon Steele, pro se. 

Ron O'Brien, Prosecuting Attorney, and Benjamin D. 

Humphrey, for respondent.

 

IN PROCEDENDO 

 ON RESPONDENT'S MOTION TO DISMISS 

TYACK, J. 

{¶ 1} Brandon Steele, an inmate at Southeastern Correctional Complex, filed this 

action in procedendo seeking a writ to compel Stephen L. McIntosh, a judge of the Franklin 

County Court of Common Pleas, to rule in Steele's favor on a motion to vacate his sentence. 

{¶ 2} 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. 

{¶ 3} Counsel for Judge McIntosh filed a motion to dismiss this action in 

procedendo, alleging that Judge McIntosh had already ruled on Steele's motion. Our 

magistrate considered the merits of the motion to dismiss and verified that Judge McIntosh 

has, in fact, ruled on Steele's motion. Our magistrate therefore generated a magistrate's 
No. 18AP-57 2 

decision, appended hereto, which includes a recommendation that we dismiss this action 

in procedendo. 

{¶ 4} No party has filed objections to the magistrate's decision. Upon review of the 

magistrate's decision, we adopt the findings of fact and conclusions of law contained 

therein. We, therefore, deny the request for a writ of procedendo. 

Writ of procedendo denied; Action dismissed. 

KLATT and HORTON, JJ., concur. 

 

 
No. 18AP-57 3 

A P P E N D I X 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

The State ex rel. : 

Brandon Steele, 

 : 

 [Relator], 

 : 

v. No. 18AP-57 

 : 

Stephen L. McIntosh, Judge, (REGULAR CALENDAR) 

 : 

 Respondent. 

 : 

 

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

Rendered on April 3, 2018

 

Brandon Steele, pro se. 

Ron O'Brien, Prosecuting Attorney, and Benjamin D. 

Humphrey, for respondent.

 

IN PROCEDENDO 

 ON RESPONDENT'S MOTION TO DISMISS 

{¶ 5} In this original action, relator, Brandon Steele, an inmate of the Southeastern 

Correctional Complex ("SCC") requests that a writ of procedendo issue against respondent, 

the Honorable Stephen L. McIntosh, a judge of the Franklin County Court of Common Pleas 

("common pleas court"). 

Findings of Fact: 

{¶ 6} 1. On January 24, 2018, relator, an SCC inmate, filed this original action 

against respondent. 

{¶ 7} 2. According to the complaint, on September 29, 2017, relator filed a motion 

in the common pleas court in case No. 12CR-402. The motion is captioned: 
No. 18AP-57 4 

DEFENDANT'S MOTION TO VACATE VOID SENTENCE 

FOR LACK OF JURISDICTION PURSUANT TO R.C. 

§ 2941.25, R.C. § 2929.14(D)(1)(b) &Crim.R. 32(A), 

Crim.R. 52(B), INSTANTER 

(Emphasis sic.) 

{¶ 8} 3. According to the complaint, on November 17, 2017, relator filed another 

motion in the common pleas court. The motion is captioned: 

DEFENDANT'S MOTION REQUESTING A COPY OF THIS 

COURTS DECISION & ENTRY MADE IN RESPONSE TO 

THE DEFENDANT'S MOTION TITLED "Motion to Vacate 

Void Sentence for Lack of Jurisdiction Pursuant to R.C. 

§ 2941.25, R.C. § 2929.14(D)(1)(b) &Crim.R. 32(A), 

Crim.R. 52(B), Instanter." FILED ON SEP. 29th, 2017, 

INSTANTER. 

(Emphasis sic.) 

{¶ 9} 4. According to the complaint, respondent has failed to rule on the motions 

filed September 29 and November 17, 2017. Relator requests that the writ order respondent 

to rule on the motions. 

{¶ 10} 5. On February 23, 2018, respondent filed in this action a motion to dismiss. 

Respondent states that this action is now moot because respondent has issued a decision 

and entry ruling on the motions. 

{¶ 11} 6. In support of his motion to dismiss, respondent appended a copy of his 

decision and entry that he filed on February 14, 2018 in case No. 12CR-402. In his decision 

and entry, respondent denies relator's September 29, 2017 motion and grants relator's 

November 17, 2017 motion. The concluding paragraph of respondent's decision and entry 

states: 

The September 29, 2017 Motion to Vacate is DENIED. 

Defendant's November 17, 2017 Motion Requesting a Copy of 

this Court's Decision & Entry is GRANTED. The Clerk is 

ORDERED to serve a copy of this Decision and Entry upon 

Defendant at: Brandon R. Steele, # 669-547, Southeastern 

Correctional Complex, 5900 B.I.S. Road, SW, Lancaster, Ohio 

43140. 

(Emphasis sic.) 
No. 18AP-57 5 

{¶ 12} 7. On March 1, 2018, the magistrate ordered that relator shall file his 

response or brief in opposition to the motion to dismiss on or before March 12, 2018. 

{¶ 13} 8. Relator has not responded to respondent's motion to dismiss. 

Conclusions of Law: 

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

dismiss, as more fully explained below. 

{¶ 15} Procedendo is an order from a court of superior jurisdiction to proceed to 

judgment; it does not attempt to control the inferior court as to what the judgment should 

be. State ex rel. Miley v. Parrott, 77 Ohio St.3d 64 (1996); State v. Sherrills v. Cuyahoga 

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

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

a judgment or has unnecessarily delayed proceeding to judgment. Miley at 65, citing State 

ex rel. Crandall, Pheils & Wisniewski v. DeCessna, 73 Ohio St.3d 180 (1995). 

{¶ 17} To be entitled to a writ of procedendo, the relator 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 law. State ex rel. Dawson v. 

Summit Cty. Court of Common Pleas, 146 Ohio St.3d 435, 2016-Ohio-1597, ¶ 6. 

{¶ 18} A writ of procedendo will not issue to compel the performance of a duty 

already performed. State ex rel. Morgan v. Fais, 146 Ohio St.3d 428, 2016-Ohio-1564. 

{¶ 19} Respondent's February 14, 2018 decision and entry appended to his 

February 23, 2018 motion to dismiss shows beyond doubt that respondent has performed 

the duty that relator seeks to compel by this procedendo action. Clearly, this court can take 

judicial notice of the February 14, 2018 decision and entry showing that this action has been 

rendered moot. State ex rel. Womack v. Marsh, 128 Ohio St.3d 303, 2011-Ohio-229. 

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

motion to dismiss. 

 

 /S/ MAGISTRATE 

 KENNETH W. MACKE 
No. 18AP-57 6 

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).