[Cite as State ex rel. Stanley v. D'Apolito, 2010-Ohio-4850.]


                             STATE OF OHIO, MAHONING COUNTY

                                    IN THE COURT OF APPEALS

                                          SEVENTH DISTRICT


STATE ex rel.                                        )
CHRISTOPHER STANLEY,                                 )          CASE NO.   10 MA 114
                                                     )
        RELATOR,                                     )
                                                     )              OPINION
        - VS -                                       )               AND
                                                     )          JUDGMENT ENTRY
HONORABLE LOU D’APOLITO,                             )
                                                     )
        RESPONDENT.                                  )


CHARACTER OF PROCEEDINGS:                                Petition for Writ of Mandamus; Motion
                                                         To Dismiss.

JUDGMENT:                                                Petition for Writ of Mandamus Granted;
                                                         Motion to Dismiss Denied.

APPEARANCES:
For Relator:                                             Christopher Stanley, Pro se
                                                         #443-303
                                                         Mansfield Correctional Institution
                                                         P.O. Box 788
                                                         Mansfield, Ohio 44901

For Respondent:                                          Attorney Paul Gains
                                                         Prosecuting Attorney
                                                         Attorney Ralph Rivera
                                                         Assistant Prosecuting Attorney
                                                         21 West Boardman Street, 6th Floor
                                                         Youngstown, Ohio 44503

JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Cheryl L. Waite


                                                         Dated: September 30, 2010
PER CURIAM:

       ¶{1}    On July 14, 2010, Relator Christopher Stanley filed a petition for writ of
mandamus seeking an order to compel Respondent Judge Lou D’Apolito of the
Mahoning County Common Pleas Court to rule on Stanley’s December 7, 2009 Motion
to Withdraw No Contest Plea. In response to the petition, Respondent filed an answer
and motion to dismiss.
       ¶{2}    Although a writ of procedendo is the more appropriate vehicle to use
when a court has refused to render a judgment or unnecessarily delays rendering a
judgment, the Ohio Supreme Court has found that a writ of mandamus can be used.
State ex rel. Carnail v. McCormick, __ Ohio St.3d __, 2010-Ohio-2671, ¶32.
       ¶{3}    As we have previously explained, in order to be entitled to a writ Stanley
must establish a clear legal right to the requested relief, a corresponding clear legal
duty on the part of Judge D'Apolito to provide it, and the lack of an adequate remedy in
the ordinary course of law. State ex rel. Stanley v. D’Apolito, 7th Dist. No. 10MA66,
2010-Ohio-3371, ¶12, citing Powell v. Houser, 7th Dist. No. 07MA14, 2007-Ohio-2866,
¶8, citing Doss Petroleum, Inc. v. Columbiana Cty. Bd. of Elections, 164 Ohio App.3d
255, 2005-Ohio-5633, ¶6, citing to State ex rel. Berger v. McMonagle (1983), 6 Ohio
St.3d 28, 29. Our authority in ruling on a petition for writ of mandamus or procedendo
that seeks to have the trial court rule on a pending motion is not to tell the trial court
how to rule, but rather is to tell them whether or not they have to rule. State ex rel.
Parks v. Olivito, 7th Dist. No. 08CA855, 2008-Ohio-4319, ¶2, citing State ex rel.
Niederlehner, v. Mack (1932), 125 Ohio St. 559, 564.
       ¶{4}    In 2002, Stanley entered a no contest plea to the following charges: (1)
attempted murder, a violation of R.C. 2923.02(A)(3) and 2903.02(A), (D); (2) rape, a
violation of R.C. 2907.02(A)(2), (B); and (3) aggravated burglary, a violation of R.C.
2911.11(A)(1), (B), (C). State v. Stanley, 7th Dist. No. 03MA42, 2004-Ohio-6801, ¶2-
3, 19. The trial court found him guilty, and sentenced him to an aggregate sentence of
18 years.     Stanley, 7th Dist. No. 03MA42, 2004-Ohio-6801, at ¶2-3, 19.         Stanley
appealed the conviction raising speedy trial and ineffective assistance of counsel
issues. Id. at ¶21-46. We affirmed the conviction; we did not remand the matter to the
trial court for further proceedings. Id. at ¶1, 47.
       ¶{5}    In December 2009 Stanley moved pursuant to Crim.R. 32.1 to vacate his
no contest plea to the aforementioned charges. In the motion, Stanley argues that
prior to accepting his plea, the trial court incorrectly advised him on the maximum and
minimum penalties for these three first degree felonies.             Additionally, Stanley
maintains that his motion to vacate must be considered a presentence motion under
Crim.R. 32.1 because the sentence issued by the trial court was void for failing to
properly advise him of postrelease control.       The trial court has not ruled on that
motion.
       ¶{6}    Respondent maintains that Stanley’s petition for a writ of mandamus
must be dismissed because the trial court was without jurisdiction to rule on the motion
to vacate since the conviction had already been affirmed on appeal. Respondent cites
to State v. Parks, 7th Dist. No. 08CA857, 2009-Ohio-4817, ¶4, 7, citing State ex rel.
Special Prosecutors v. Judges, Court of Common Pleas (1978), 55 Ohio St.2d 94, 97
to support its position. Those cases held that a trial court has no jurisdiction over a
Crim.R. 32.1 motion once a direct appeal is filed and a decision is rendered, and the
trial court does not regain jurisdiction unless the case is remanded to it for further
proceedings.
       ¶{7}    However, those cases do not stand for the proposition that a trial court is
not required to issue a ruling on the motion to vacate a no contest plea. As we have
explained:
       ¶{8}    “[T]here is nothing about the Ohio Supreme Court's decision in Special
Prosecutors which would prevent the Respondent from issuing a judgment addressing
Relator's motions in some manner. See State ex rel. In re Weger v. Hague (May 27,
1994), 11th Dist. No. 93-A-1840 (dismissing an action in procedendo because the trial
court had issued an order deciding that it did not have jurisdiction); State v. Tate, 8th
Dist. No. 83582, 2004-Ohio-2979, at ¶11, and State v. Sawyer, 9th Dist. No.
07CA0046-M, 2008-Ohio-3370, at ¶7 (affirming judgment entry dismissing a motion to
withdraw a guilty plea for lack of jurisdiction because the conviction and sentence had
been affirmed). A litigant should be given the courtesy of a judgment entry expressing
the trial court's belief that it does not have jurisdiction to address a particular issue so
that the litigant can challenge that entry on appeal, if the litigant chooses to do so. A
trial court cannot simply refuse to act.” Olivito, 7th Dist. No. 08CA855, 2008-Ohio-
4319, at ¶5.
       ¶{9}    Consequently, considering our holding in Olivito, there is a clear legal
right to have the motion to vacate ruled on, a duty on the part of respondent to rule on
the motion, and no adequate remedy at law. Thus, the trial court’s failure to rule on
the motion that was filed over eight months ago necessitates the issuance of the writ.
       ¶{10} Having said that, we must note that nothing in this opinion should be
interpreted as a holding from this court on whether the trial court has jurisdiction over
the motion to withdraw the guilty plea. Here, Stanley was sentenced in 2003 and if the
sentence did not contain an adequate advisement on postrelease control the sentence
would be deemed void. State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, ¶25-
26 (determining that R.C. 2929.191 is not retroactive). A void sentence may impact
the validity of the first direct appeal and thus, implicate the determination of whether
the trial court has jurisdiction over the motion to vacate the no contest plea. Currently
pending before the Ohio Supreme Court is the Ninth Appellate District’s decision in
State v. Fischer, 181 Ohio App.3d 758, 761, 2009-Ohio-1491, which addressed the
issue of whether the failure to issue a valid postrelease control sentence voids the first
direct appeal. State v. Fischer, 123 Ohio St.3d 1410, 2009-Ohio-5031 (accepting for
review, “A direct appeal from a void sentence is a legal nullity; therefore, a criminal
defendant's appeal following a Bezak resentencing is the first direct appeal as of right
from a valid sentence.     5/15/09 Fischer’s Memorandum in Support of Jurisdiction,
Proposition of Law I).
       ¶{11} For the above stated reasons, the motion to dismiss is denied. The
Petition for Writ of Mandamus is granted; the trial court is directed to rule on the
motion to vacate the no contest plea. Costs taxed against Respondent. Final order.
Clerk to serve notice on the parties as provided by the Ohio Rules of Civil Procedure.



Vukovich, P.J., concurs.
Donofrio, J., concurs.
Waite, J., concurs.
