State ex rel. Wilson v. Sunderland - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as State ex rel. Wilson v. Sunderland, 87 Ohio St.3d 548, 2000-Ohio-479.]

THE STATE EX REL. WILSON, APPELLANT, v. SUNDERLAND, JUDGE, APPELLEE.
[Cite as State ex rel. Wilson v. Sunderland (2000), 87 Ohio St.3d 548.]
Mandamus to compel common pleas court judge to grant relator's motion for a
free trial transcript -- Denial of writ affirmed.
(No. 99-1720 -- Submitted November 30, 1999 -- Decided January 19, 2000.)
APPEAL from the Court of Appeals for Montgomery County, No. 17715.

Appellant, Lawrence E. Wilson, was convicted of rape and sentenced to
prison. On appeal, the court of appeals affirmed the judgment. State v. Wilson
(Aug. 7, 1998), Montgomery App. Nos. 16728 and 16752, unreported, 1998 WL
639100. In October 1998, the trial court denied Wilson's delayed motion for a
new trial. In November 1998, Wilson filed his notice of appeal from this denial.
In December 1998, Wilson filed a motion in the trial court for the preparation of a
transcript at state expense in conjunction with his appeal from the denial of his
delayed motion for a new trial.

On March 30, 1999, Wilson filed a complaint for a writ of mandamus to
compel appellee, Montgomery County Common Pleas Court Judge David G.
Sunderland, to grant his December 1998 motion for a transcript. The next day,
March 31, 1999, the court of appeals affirmed the trial court's judgment denying
Wilson's delayed motion for a new trial. State v. Wilson (Mar. 31, 1999),
Montgomery App. No. 17515, unreported, 1999 WL 173551. On April 7, 1999,
Judge Sunderland denied Wilson's motion for a transcript because his appeal was
no longer pending. Judge Sunderland filed a motion to dismiss, or, in the
alternative, for summary judgment. The court of appeals granted the motion and
denied the writ.

This cause is now before the court upon an appeal as of right.
__________________

Lawrence E. Wilson, pro se.

Mathias H. Heck, Jr., Montgomery County Prosecuting Attorney, and Lisa
K. North, Assistant Prosecuting Attorney, for appellee.
__________________

Per Curiam. Wilson asserts that the court of appeals erred in denying the
writ. For the following reasons, Wilson's assertions lack merit.

To the extent that Wilson requested that Judge Sunderland rule on his
motion for a free transcript, his claim was rendered moot when Judge Sunderland
subsequently denied the motion. Mandamus will not issue to compel an act that
has already been performed. State ex rel. Jones v. O'Connor (1999), 84 Ohio St.3d
426, 426, 704 N.E.2d 1223, 1224.

In addition, although Wilson claimed he needed a copy of the transcript to
help him prepare an appeal in the court of appeals, that appeal was no longer
pending when the court of appeals denied the writ. State ex rel. Call v. Zimmers
(1999), 85 Ohio St.3d 367, 368, 708 N.E.2d 711, 712; State ex rel. Murr v. Thierry
(1987), 34 Ohio St.3d 45, 45, 517 N.E.2d 226, 226-227; see, also, State ex rel.
Newton v. Court of Claims (1995), 73 Ohio St.3d 553, 557, 653 N.E.2d 366, 370,
quoting Oregon v. Dansack (1993), 68 Ohio St.3d 1, 4, 623 N.E.2d 20, 22 ("in
mandamus actions `a court is not limited to considering facts and circumstances at
the time a proceeding is instituted, but should consider the facts and conditions at
the time it determines to issue a peremptory writ' ").

Finally, Wilson had an adequate remedy in the ordinary course of law to
obtain the requested transcript, i.e., a motion in the court of appeals in his appeal.
State ex rel. Jones v. Montgomery Cty. Court of Common Pleas (1996), 75 Ohio
St.3d 642, 643, 665 N.E.2d 673, 674.

Based on the foregoing, we affirm the judgment of the court of appeals.
Judgment affirmed.

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