On Wednesday, January 22, 2025, Anthony J. Cunningham filed a petition in the Ohio Supreme Court seeking a writ of procedendo against Common Pleas Judge Stephen L. McIntosh. The petition, submitted by Cunningham acting pro se, alleges that Judge McIntosh failed to rule on two motions within the required timeframe set forth by Ohio Supreme Court Rule 40.
Cunningham’s petition details that he filed a motion for public records under Ohio Revised Code § 149.43(B)(8) on August 1, 2024, and a motion for leave to file a new trial based on a Brady violation on September 11, 2024. According to Cunningham, over 120 days have elapsed since the submission of these motions without a ruling from Judge McIntosh, which he claims violates the stipulations of the Ohio Supreme Court Rules.
The Ohio Supreme Court’s Rule 40 mandates that all motions should be ruled upon within 120 days of filing, barring any exceptions noted in the report forms. Cunningham argues that the lack of action from the judge constitutes an undue delay, which the writ of procedendo is designed to address. He cites previous Ohio Supreme Court decisions that affirm a relator’s right to compel a court to act when there is a clear legal duty to do so.
In his affidavit, Cunningham asserts that he is entitled to receive certain public records regarding his case, specifically information related to the prosecution’s evidence and witness statements. He claims that the Franklin County Prosecutor’s Office denied his request for these records, stating that he needed a court order for their release. This prompted Cunningham to file his motion with Judge McIntosh, which remains unresolved.
The petition outlines that Cunningham’s initial request for public records was made on July 11, 2024. He requested access to various documents, including the prosecution’s open file, witness lists, and any notes related to witness testimony. The refusal by the prosecutor’s office to release these documents without a court order led Cunningham to seek judicial intervention.
In addition to the records request, Cunningham’s second motion, filed under Criminal Rule 33, sought permission to file for a new trial based on the alleged Brady violation, which concerns the prosecution’s failure to disclose evidence favorable to the defense. As with the public records motion, no ruling has been made by Judge McIntosh on this matter, prompting Cunningham’s appeal to the Ohio Supreme Court.
Cunningham’s petition emphasizes the importance of timely judicial decisions, citing that the delay in ruling on his motions prevents him from pursuing his legal rights effectively. He requests that the Ohio Supreme Court compel Judge McIntosh to issue a decision regarding his pending motions and to provide the necessary findings of fact and conclusions of law.
A copy of the original filing can be found here.
