[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Rudert v. Collier, Slip Opinion No. 2016-Ohio-1600.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.




                          SLIP OPINION NO. 2016-OHIO-1600
   THE STATE EX REL. RUDERT, APPELLANT, v. COLLIER, JUDGE, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
            may be cited as State ex rel. Rudert v. Collier, Slip Opinion
                                   No. 2016-Ohio-1600.]
Mandamus―Prohibition―Denial of motion to terminate postrelease control as
        improperly imposed―Relator has adequate remedy via appeal from denial
        of motion―Writs denied.
    (No. 2015-1398—Submitted January 27, 2016—Decided April 21, 2016.)
         APPEAL from the Court of Appeals for Henry County, No. 7-15-05.
                                 _____________________
        Per Curiam.
        {¶ 1} We affirm the judgment of the Court of Appeals for the Third District
denying a petition for writs of mandamus and procedendo, but for reasons other
than those given by the court of appeals.
                              SUPREME COURT OF OHIO




                                         Facts
        {¶ 2} Relator-appellant, Jeffrey F. Rudert, was convicted of two counts of
rape in 2003 and sentenced to two consecutive six-year terms of incarceration. The
sentencing entry stated that he “shall be subject to post release control of up to three
years.” Three and a half years later, the trial court journalized a nunc pro tunc order
correcting the 2003 order by replacing the phrase “shall be subject to post release
control of up to three years” with the phrase “shall be subject to post release control
of five (5) years.” However, in neither entry did the court explain to Rudert the
consequences of violating postrelease control. The court also apparently had not
explained the consequences in the sentencing hearing.
        {¶ 3} In 2015, after completing his term of incarceration, Rudert filed in the
trial court a motion to terminate postrelease control. Respondent-appellee, Judge
John S. Collier of the Henry County Court of Common Pleas, finding that the
motion was actually a petition for postconviction relief, dismissed it as untimely.
Rudert apparently did not appeal.
        {¶ 4} Rudert filed an action in mandamus and/or prohibition requesting a
writ compelling the trial court to issue a valid final judgment in the underlying case,
relieving Rudert of postrelease-control obligations. Judge Collier filed an answer
asserting, among other things, that the trial court was without jurisdiction to issue
an order “granting Relator’s motion for post conviction relief.”
        {¶ 5} The court of appeals issued an opinion and entry stating that “the trial
court loses jurisdiction to take any action in the criminal case when the maximum
prison term has been served.” Accordingly, the court of appeals dismissed Rudert’s
petition.
        {¶ 6} Rudert appealed.
                                       Analysis
        {¶ 7} To be entitled to a writ of procedendo, Rudert must show a clear legal
right to require the court to proceed, a clear legal duty on the part of the court to




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                                  January Term, 2016




proceed, and the lack of an adequate remedy in the ordinary course of the law. State
ex rel. Sherrills v. Cuyahoga Cty. Court of Common Pleas, 72 Ohio St.3d 461, 462,
650 N.E.2d 899 (1995). A writ of procedendo is proper when a court has refused
to enter judgment or has unnecessarily delayed proceeding to judgment. State ex
rel. Crandall, Pheils & Wisniewski v. DeCessna, 73 Ohio St.3d 180, 184, 652
N.E.2d 742 (1995).
       {¶ 8} To be entitled to a writ of mandamus, Rudert must establish a clear
legal right to the requested relief, a clear legal duty on the part of the respondent to
provide it, and the lack of an adequate remedy in the ordinary course of the law.
State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452,
¶ 6. Rudert must prove that he is entitled to the writ by clear and convincing
evidence. Id. at ¶ 13.
       {¶ 9} The court of appeals correctly dismissed Rudert’s original action, but
for the wrong reasons. The court first found that when the sentencing entry fails to
notify the offender of possible sanctions for violating postrelease control and the
offender is still in prison, no extraordinary remedy exists because the entry can be
corrected under R.C. 2929.191. But the court then found that when the offender
has served his maximum sentence, as Rudert has, the trial court loses all jurisdiction
to take any action in the case.
       {¶ 10} The court below cited State v. Holdcroft, 137 Ohio St.3d 526, 2013-
Ohio-5014, 1 N.E.3d 382, for the proposition that the trial court loses all jurisdiction
to take any action. But Holdcroft holds only that after a defendant serves his entire
sentence, the trial court “loses jurisdiction to resentence [him] for the purpose of
imposing postrelease control.” (Emphasis added.) Id. at ¶ 5. Rudert is not asking
for a resentencing to impose postrelease control; Rudert is asking to terminate the
portion of his sentence imposing postrelease control because it was improperly
imposed. Nothing in Holdcroft prevents the trial court from doing so.




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                              SUPREME COURT OF OHIO




         {¶ 11} However, Rudert has an alternate remedy in the ordinary course of
the law in that he could appeal the trial court’s dismissal of his motion to terminate
his postrelease control. Because of this alternate remedy, the court cannot issue
either a writ of mandamus or a writ of procedendo. We therefore affirm on this
basis.
                                                                 Judgment affirmed.
         O’CONNOR, C.J., and PFEIFER, O’DONNELL, KENNEDY, FRENCH, and
O’NEILL, JJ., concur.
         LANZINGER, J., concurs in judgment only.
                                 _________________
         Jeffrey F. Rudert, pro se.
                                 _________________




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