STATE ASHIPA v. KUBICKI (2007)

 {¶ 1} This is an appeal from a judgment dismissing an action for a writ of procedendo to compel a common pleas court judge to issue findings of fact and conclusions of law on his denial of a petition for postconviction relief based on untimeliness.   Because the judge had no duty to do so, we affirm.

{¶ 2} Appellant, Oludayo Ashipa, filed a petition in the Hamilton County Court of Common Pleas for postconviction relief.   Shortly thereafter, appellee, Judge Charles J. Kubicki Jr., denied the petition, holding, “[It] is untimely and, even if it had been timely, raises issues that could have been raised during Ashipa's direct appeal.”

{¶ 3} Ashipa then filed an action in the Court of Appeals for Hamilton County for a writ of procedendo to compel Judge Kubicki to issue findings of fact and conclusions of law supporting his denial of Ashipa's petition for postconviction relief.   Judge Kubicki filed a motion to dismiss.   The court of appeals granted the motion and dismissed Ashipa's procedendo action.

{¶ 4} We affirm the judgment of the court of appeals.  “[A] trial court need not issue findings of fact and conclusions of law when it dismisses an untimely [postconviction-relief] petition.”  State ex rel. Kimbrough v. Greene, 98 Ohio St.3d 116, 2002-Ohio-7042, 781 N.E.2d 155, ¶ 6. “This rule applies even when the defendant * * * claims, under R.C. 2953.23, that he was unavoidably prevented from discovery of the facts to present his claim for post-conviction relief.”  State ex rel. Hach v. Summit Cty. Court of Common Pleas, 102 Ohio St.3d 75, 2004-Ohio-1800, 806 N.E.2d 554, ¶ 9.

Judgment affirmed.

PER CURIAM.

MOYER, C.J., PFEIFER, LUNDBERG STRATTON, O'CONNOR, O'DONNELL, LANZINGER and CUPP, JJ., concur.