[Cite as State ex rel. Lockhart v. Whitney, 2011-Ohio-2023.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE, EX REL., JOHN C.                                        JUDGES:
LOCKHART, JR.                                                  Hon. William B. Hoffman, P.J.
                                                               Hon. Sheila G. Farmer, J.
        Relator                                                Hon. John W. Wise, J.

-vs-                                                           Case No. 10 CAD 12 0094

HON. W. DUNCAN WHITNEY, JUDGE                                  OPINION
DELAWARE COUNTY COURT OF
COMMON PLEAS

        Respondent



CHARACTER OF PROCEEDING:                                Writ of Mandamus


JUDGMENT:                                               Dismissed



DATE OF JUDGMENT ENTRY:                                 April 25, 2011




APPEARANCES:

For Relator                                             For Respondent

JOHN C. LOCKHART, JR., Pro Se                           CAROL O'BRIEN
Toledo Correctional Institution                         Prosecuting Attorney
2001 East Central Avenue
P. O. Box 80033                                         By: ARIC I. HOCHSTETTLER
Toledo, OH 43608-0033                                   Assistant Prosecuting Attorney
                                                        140 North Sandusky Street, 3rd Floor
                                                        Delaware, OH 43015
Delaware County, Case No. 10 CAD 12 0094                                                   2

Farmer, J.

         {¶1 } Relator, John C. Lockhart, has filed a Petition for Writ of Mandamus

and/or Procedendo requesting this Court issue a writ requiring the trial court to issue a

sentencing entry which complies with Crim.R. 32. Respondent has filed a motion to

dismiss arguing the petition is moot. Respondent also suggests the petition should be

dismissed for failure to state a claim upon which relief may be granted.

         {¶2 }   Relator was initially sentenced by the trial court on October 16, 2006. An

appeal was taken from this entry which was affirmed by this Court on January 9, 2008.

Thereafter, the Supreme Court of Ohio declined further review of the October 16, 2006

entry.

         {¶3 } On December 17, 2009, the trial court sua sponte issued a Nunc Pro Tunc

entry in an apparent effort to comply with the dictates of the Supreme Court’s holding in

State v. Baker, 119 Ohio St.3d 197, 893 N.E.2d 163. Relator is currently seeking leave

from this Court to file a delayed appeal of the trial court’s entry of December 17, 2009

despite his contention the entry is not a final, appealable order which complies with

Crim.R. 32.

         {¶4 } Almost one year after the Nunc Pro Tunc entry was issued by the trial

court, Relator filed with the trial court a motion titled “Motion to Correct Status of Void

Sentencing Entry.” This motion remained pending on the date the instant petition was

filed.

         {¶5 }   The Supreme Court has approved the use of mandamus and procedendo

to compel a trial court to issue an order which complies with Crim.R. 32, “[I]f a trial court

has not issued a final, appealable order and refuses to issue a revised sentencing entry,
Delaware County, Case No. 10 CAD 12 0094                                                 3


the defendant can seek to compel the court to act by filing an action for a writ of

mandamus or a writ of procedendo. See McAllister v. Smith, 119 Ohio St.3d 163, 2008-

Ohio-3881, 892 N.E.2d 914, ¶ 8; State ex rel. Culgan v. Medina Cty. Court of Common

Pleas, 119 Ohio St.3d 535, 2008-Ohio-4609, 895 N.E.2d 805.” State ex rel. Pruitt v.

Cuyahoga Cty. Court of Common Pleas (2010), 125 Ohio St.3d 402, 402, 928 N.E.2d

722, 723.

      {¶6 } In the instant case, Respondent argues he has not refused to issue a final,

appealable order nor has he refused to rule on Relator’s motion. We agree.

      {¶7 } For a writ of mandamus to issue, the relator must have a clear legal right

to the relief prayed for, the respondent must be under a clear legal duty to perform the

requested act, and relator must have no plain and adequate remedy in the ordinary

course of law. State, ex rel. Berger, v. McMonagle (1983), 6 Ohio St.3d 28, 6 OBR 50,

451 N.E.2d 225. To be entitled to a writ of procedendo, “a relator must establish a clear

legal right to require the court to proceed, a clear legal duty on the part of the court to

proceed, and the lack of an adequate remedy in the ordinary course of law.” Miley,

supra, at 65, citing State ex rel. Sherrills v. Cuyahoga Cty. Court of Common Pleas

(1995), 72 Ohio St.3d 461, 462.

      {¶8 } As of December 9, 2010, the date the instant petition was filed, the

“Motion to Correct Status of Void Sentencing Entry” had been pending for 50 days.

Relator has not provided any authority for the proposition that Respondent had a clear

legal duty to rule on the motion within the 50 days it had been pending.
Delaware County, Case No. 10 CAD 12 0094                                               4


        {¶9 } Further, we have reviewed the trial court’s entry of December 17, 2009,

and find the trial court’s entry does comply with Crim.R. 32. An entry which complies

with Crim.R. 32 ultimately is the relief Relator seeks.

        {¶10 } The Supreme Court has held, “Neither procedendo nor mandamus will

compel the performance of a duty that has already been performed. State ex rel. Grove

v. Nadel (1998), 84 Ohio St.3d 252, 253, 703 N.E.2d 304, 305.” State ex rel. Kreps v.

Christiansen (2000), 88 Ohio St.3d 313, 318, 725 N.E.2d 663, 668. Because the trial

court has already issued a final, appealable order, the instant petition has become

moot.

        {¶11 } For the foregoing reasons, Respondent’s motion to dismiss is granted.




By Farmer, J.

Hoffman, P. J. and

Wise, J. concur.




                                              s/ Sheila G. Farmer___________________


                                              s/ William B. Hoffman_________________


                                              _s/ John W. Wise___________________

                                                          JUDGES
Delaware County, Case No. 10 CAD 12 0094                                         5


           IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                           FIFTH APPELLATE DISTRICT


STATE, EX REL.,
JOHN C. LOCKHART, JR.                     :
                                          :
       Relator                            :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
HON. W. DUNCAN WHITNEY, JUDGE             :
DELAWARE COUNTY COURT OF                  :
COMMON PLEAS                              :
                                          :
       Respondent                         :         Case No. 10 CAD 12 0094


       For the foregoing reasons, Respondent’s motion to dismiss is granted.   The

Petition for Writ of Mandamus and/or Procedendo is dismissed.

       Cost to Relator.




                                          s/ Sheila G. Farmer___________________


                                          s/ William B. Hoffman_________________


                                          _s/ John W. Wise___________________

                                                    JUDGES
