[Cite as State ex rel. Nance v. McClelland, 2012-Ohio-5083.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                       No. 98620



                             STATE OF OHIO, EX REL.
                                 KEVIN NANCE
                                                               RELATOR

                                                     vs.

             HONORABLE ROBERT C. MCCLELLAND
                                                               RESPONDENT




                                           JUDGMENT:
                                           WRIT DENIED


                                           Writ of Mandamus
                                           Motion No. 456974
                                           Order No. 459387


        RELEASE DATE: October 26, 2012
FOR RELATOR

Kevin Nance, pro se
Inmate No. 521-533
Mansfield Correctional Institution
P.O. Box 788
1150 North Main Street
Mansfield, Ohio 44901


ATTORNEYS FOR RESPONDENT

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: James E. Moss
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:

      {¶1} Relator, Kevin Nance, is the defendant in State v. Nance, Cuyahoga C.P. No.

CR-482230, which is now assigned to respondent judge.               The January 17, 2007

sentencing entry states, in part: “Defendant is to pay court costs.” Nance contends that

the trial court did not, however, impose court costs during his sentencing hearing and

appends what he considers to be the relevant portions of the sentencing transcript. He

requests that this court compel respondent to correct the sentencing entry to reflect that

Nance was found “guilty without stating court cost.” Complaint, ¶ 8.

      {¶2} Respondent has filed a motion for summary judgment and argues that relief in

mandamus is not appropriate. We agree.

      {¶3} In Bandy v. Villanueva, 8th Dist. No. 98116, 2012-Ohio-3695, ¶ 2, we

recently observed:

             It is well established that a defendant in a criminal proceeding may,
      at sentencing, request the trial court to waive costs. If the trial court denies
      the request to waive costs, the defendant has an adequate remedy by way of
      appeal.      See, e.g., Henderson v. State, 8th Dist. No. 97042,
      2011-Ohio-5679, citing Collins v. State, 8th Dist. No. 97111,
      2011-Ohio-4964. “[A]ny error regarding the imposition of court costs can
      be challenged by appeal. State ex rel. Whittenberger v. Clarke (2000), 89
      Ohio St.3d 207, 208, 2000-Ohio-136, 729 N.E.2d 756.” State ex rel.
      Galloway v. Lucas Cty. Court of Common Pleas, 130 Ohio St.3d 206,
      2011-Ohio-5259, 957 N.E.2d 11, ¶ 4.
Obviously, Nance had an opportunity to request a waiver of costs at sentencing. If, in his

judgment, the trial court’s sentencing entry did not accurately reflect the proceedings

during his sentencing hearing, he could have assigned error on direct appeal.

      {¶4} Nance had an adequate remedy by way of appeal. As a consequence, relief

in mandamus is inappropriate.

      {¶5} Accordingly, respondent’s motion for summary judgment is granted. Nance

to pay costs. This court directs the clerk of court to serve all parties notice of this

judgment and its date of entry upon the journal as required by Civ.R. 58(B).

      {¶6} Writ denied.



SEAN C. GALLAGHER, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
KENNETH A. ROCCO, J., CONCUR
