[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Simmons v. Breaux, Slip Opinion No. 2020-Ohio-3251.]




                                           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. 2020-OHIO-3251
  THE STATE EX REL. SIMMONS, APPELLANT, v. BREAUX, JUDGE,1 APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
        may be cited as State ex rel. Simmons v. Breaux, Slip Opinion No.
                                      2020-Ohio-3251.]
Mandamus—Inmate had adequate remedy at law to assert his claims by way of
         appeal—Court of appeals’ dismissal of petition affirmed.
       (No. 2019-1464—Submitted April 7, 2020—Decided June 10, 2020.)
         APPEAL from the Court of Appeals for Summit County, No. 29440,
                                       2019-Ohio-3875.
                                     ________________
         Per Curiam.
         {¶ 1} Appellant, John Simmons, appeals the judgment of the Ninth District
Court of Appeals dismissing his petition for a writ of mandamus against appellee,
Summit County Court of Common Pleas Judge Alison M. Breaux. We affirm.


1. Under S.Ct.Prac.R. 4.06(B), Judge Alison M. Breaux is automatically substituted for Judge Elinor
Marsh Stormer as a party to this action.
                             SUPREME COURT OF OHIO




                                    Background
       {¶ 2} In February 2008, Simmons was found guilty of one count of rape
with a repeat-violent-offender specification and one count of domestic violence.
The trial court imposed the following prison sentences: ten years for the rape
conviction, five years for the specification, and five years for the domestic-violence
conviction. The trial court’s sentencing entry ordered that “[t]he imposed sentences
and specification are to be served consecutively with each other for a total of Ten
(10) years.” (Emphasis added.)
       {¶ 3} On direct appeal, the Ninth District Court of Appeals affirmed the
convictions and sentences. The court of appeals determined that Simmons “was
sentenced to a total of 20 years of incarceration.” State v. Simmons, 9th Dist.
Summit No. 24218, 2009-Ohio-1495, ¶ 4. In other words, the court of appeals
corrected the inconsistency in the sentencing entry by concluding that the trial court
had intended the sentences to run consecutively but made a typographical error
when it imposed the aggregate sentence. The court of appeals’ reading of the
sentencing entry was reasonable, because if the trial court had intended that the
sentences run concurrently, it would have imposed an aggregate sentence of 15
years, not 10 years.     Pursuant to former R.C. 2929.14(D)(2)(a), now R.C.
2929.14(B)(2), Simmons was required to serve the five-year term for the repeat-
violent-offender specification before serving the ten-year term for the rape
conviction, irrespective of whether the sentences for rape and domestic violence
had been ordered to run concurrently or consecutively. See State v. Robinson, 5th
Dist. Muskingum No. CT2018-0016, 2018-Ohio-5381, ¶ 26; State v. Chinn, 10th
Dist. Franklin No. 16AP-602, 2017-Ohio-8546, ¶ 25.
       {¶ 4} On further appeal, we summarily vacated the judgments of the trial
court and court of appeals and remanded the case to the trial court for resentencing.
See State v. Simmons, 123 Ohio St.3d 1491, 2009-Ohio-6015, 916 N.E.2d 1072.




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                                   January Term, 2020




        {¶ 5} On January 15, 2010, the trial court held a new sentencing hearing.
The trial court then issued a new sentencing entry, imposing the same sentence for
each conviction and the specification, again ordering them to be served
consecutively. But the new sentencing entry specifically stated that the aggregate
sentence was 20 years in prison.
        {¶ 6} On May 18, 2018, Simmons filed a “motion to correct void sentence”
in the trial court. He argued that the trial court had exceeded the scope of this
court’s remand order when it allegedly imposed a harsher sentence than it had
imposed in the original sentencing entry. The trial court denied the motion.2
        {¶ 7} On June 13, 2019, Simmons filed an original action in the Ninth
District Court of Appeals seeking a writ of mandamus to compel the trial court to
conduct a new sentencing hearing. He argued that the 2010 sentencing entry was
void for three reasons: (1) the trial court improperly “lumped” the sentences
together when imposing postrelease control, (2) the trial court exceeded the scope
of its jurisdiction on remand, and (3) the trial court failed to make the statutorily
required findings before imposing consecutive sentences. Judge Breaux, as the
successor to Judge Stormer, filed a motion to dismiss, which Simmons opposed.
        {¶ 8} On September 25, 2019, the court of appeals granted the motion to
dismiss.    The court of appeals held that what Simmons called “lumping”—
imposing a single term of postrelease control for multiple convictions—was
correct. 2019-Ohio-3875, ¶ 6. In any event, the court held, a writ of mandamus is
not available with respect to the alleged sentencing errors because Simmons had an
adequate remedy at law by way of appeal. Id. at ¶ 6-7.
        {¶ 9} Simmons timely appealed.




2. Simmons’s mandamus petition does not indicate the disposition of this motion, but as noted
below, he now concedes that the trial court denied the motion in July 2018.




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                                  Legal Analysis
       {¶ 10} In reviewing the court of appeals’ dismissal of Simmons’s petition,
we accept the factual allegations in the complaint as true. State ex rel. Sands v.
Culotta, 158 Ohio St.3d 1, 2019-Ohio-3784, 139 N.E.3d 849, ¶ 2. A court may
dismiss a mandamus action under Civ.R. 12(B)(6) for failure to state a claim upon
which relief may be granted “if, after all factual allegations of the complaint are
presumed true and all reasonable inferences are made in the relator’s favor, it
appears beyond doubt that he can prove no set of facts entitling him to the requested
writ of mandamus.” State ex rel. Russell v. Thornton, 111 Ohio St.3d 409, 2006-
Ohio-5858, 856 N.E.2d 966, ¶ 9. This court reviews dismissals under Civ.R.
12(B)(6) de novo. State ex rel. McKinney v. Schmenk, 152 Ohio St.3d 70, 2017-
Ohio-9183, 92 N.E.3d 871, ¶ 8.
       {¶ 11} Simmons’s first two propositions of law challenge the court of
appeals’ conclusion that he had an adequate remedy at law to assert his claims by
way of appeal. He correctly notes that mandamus (or procedendo) may lie when a
defendant files a motion and the trial court fails or refuses to rule on the motion at
all. See, e.g., State ex rel. Reynolds v. Basinger, 99 Ohio St.3d 303, 2003-Ohio-
3631, 791 N.E.2d 459, ¶ 5 (“As a general matter, procedendo and mandamus will
lie when a trial court has refused to render, or unduly delayed rendering, a
judgment”). But he concedes in his merit brief that the trial court denied his motion
for a new sentencing entry on July 7, 2018. Therefore, to the extent that he is merely
seeking to compel the trial court to rule on the motion, his claim is moot. See State
ex rel. Eubank v. McDonald, 135 Ohio St.3d 186, 2013-Ohio-72, 985 N.E.2d 463,
¶ 1 (“Mandamus will not lie to compel an act that has already been performed”).
       {¶ 12} Alternatively, Simmons argues that the trial court’s refusal to issue
a new sentencing entry left him without a final, appealable order, leaving a
mandamus action as his only remedy. But the denial of a motion for a new
sentencing entry is itself a final, appealable order, and Simmons is therefore not




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entitled to mandamus relief because he had an adequate remedy at law by way of
an appeal from the trial court’s denial of his motion. State ex rel. Henley v. Langer,
156 Ohio St.3d 149, 2018-Ohio-5204, 123 N.E.3d 1016, ¶ 6; see also State ex rel.
Jefferson v. Russo, __ Ohio St.3d __, 2020-Ohio-338, __ N.E.3d __, ¶ 11 (holding
that an appeal of the denial of a motion to vacate a void sentence is an adequate
remedy in the ordinary course of the law).
       {¶ 13} Simmons also challenges the appealability of the 2010 sentencing
entry based on the aforementioned alleged “lumping” error. Here again, the remedy
for any alleged sentencing error is an appeal, not mandamus. See State ex rel. Jaffal
v. Calabrese, 105 Ohio St.3d 440, 2005-Ohio-2591, 828 N.E.2d 107, ¶ 5
(“Sentencing errors by a court that had proper jurisdiction cannot be remedied by
extraordinary writ”).
       {¶ 14} Simmons’s first two propositions of law therefore lack merit.
       {¶ 15} As his third proposition of law, Simmons contends that the 2010
sentencing entry is void because the trial court exceeded the scope of this court’s
remand order. The court of appeals rejected this claim as an inappropriate basis for
mandamus, concluding that the claim “should have been raised on appeal.” 2019-
Ohio-3875 at ¶ 6.
       {¶ 16} A writ of mandamus “is an appropriate remedy to require a lower
court to comply with an appellate court’s mandate directed to that court.” State ex
rel. Heck v. Kessler, 72 Ohio St.3d 98, 100, 647 N.E.2d 792 (1995). But the use of
a writ of mandamus to enforce such a mandate “is reserved for extreme cases of
direct disobedience.” State ex rel. Cowan v. Gallagher, 153 Ohio St.3d 13, 2018-
Ohio-1463, 100 N.E.3d 407, ¶ 12. For example, in Heck, the trial court had
repeatedly dismissed a criminal charge of ethnic intimidation on the grounds that
the statute was unconstitutional—and it did so even after we declared the statute
constitutional and remanded the case for a new trial. Heck at 103-104; see Cowan
at ¶ 13 (describing and distinguishing Heck). In Cowan, by contrast, we denied a




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writ of mandamus because the trial court had not disobeyed the mandate of the
court of appeals; it had tried to abide by that mandate but simply failed in one
respect. Id. at ¶ 14 (noting that the trial court had complied with the mandate to
conduct a new sentencing hearing but erroneously failed to address postrelease
control at the hearing).
       {¶ 17} In this case, as in Cowan, the trial court did not disobey any mandate.
The trial court was ordered to conduct a new sentencing hearing to correct its
imposition of postrelease control, and it did so. And in the process of doing so, it
took the opportunity to correct an error in the original sentencing entry, which had
imposed an aggregate prison term of 10 years when an aggregate term of 20 years
was intended. Mandamus will not issue under such circumstances, and Simmons’s
third proposition of law therefore lacks merit.
       {¶ 18} As his fourth proposition of law, Simmons argues that his sentences
should run concurrently because the trial court failed to make the statutorily
required findings before imposing consecutive sentences. The court of appeals
correctly held that this claim is not cognizable in mandamus because Simmons’s
remedy from any alleged error in the 2010 sentencing entry was a direct appeal.
See State ex rel. Cowell v. Croce, 157 Ohio St.3d 103, 2019-Ohio-2844, 131 N.E.3d
934, ¶ 5 (affirming denial of writ of mandamus to inmate arguing that trial court
ran sentences consecutively without making statutorily required findings).
       {¶ 19} Finally, Simmons attempts to raise a claim of plain error relating to
his rape conviction. Specifically, he alleges that the state failed to prove all the
elements of rape because (he claims) there was evidence that his sexual conduct
with the victim was consensual. Mandamus is not available to challenge the
sufficiency of the evidence, because here again, a defendant has an adequate
remedy at law by way of appeal. State ex rel. Sands v. Court of Common Pleas
Judge, 155 Ohio St.3d 238, 2018-Ohio-4245, 120 N.E.3d 799, ¶ 9-10. And even if
such a remedy were available, Simmons waived the issue by failing to raise it in his




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petition. See Drake v. Tyson-Parker, 101 Ohio St.3d 210, 2004-Ohio-711, 803
N.E.2d 811, ¶ 6.
       {¶ 20} For these reasons, the court of appeals correctly dismissed
Simmons’s petition, and we affirm.
                                                         Judgment affirmed.
       O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, DONNELLY,
and STEWART, JJ., concur.
                               _________________
       John Simmons, pro se.
       Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Colleen
Sims, Assistant Prosecuting Attorney, for appellee.
                               _________________




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