[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Winfree v. McDonald, Slip Opinion No. 2016-Ohio-8098.]




                                           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-8098
THE STATE EX REL. WINFREE, APPELLANT, v. MCDONALD, JUDGE, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
      may be cited as State ex rel. Winfree v. McDonald, Slip Opinion No.
                                     2016-Ohio-8098.]
Mandamus and procedendo—Appellant failed to show that he has clear legal right
        to de novo resentencing hearing—Court of appeals’ judgment affirmed.
  (No. 2015-1525—Submitted August 16, 2016—Decided December 14, 2016.)
       APPEAL from the Court of Appeals for Lucas County, No. L-14-1222.
                                    ________________
        Per Curiam.
        {¶ 1} Appellant, Edward A. Winfree, appeals from the judgment of the
Sixth District Court of Appeals denying in part his petition for writs of mandamus
and procedendo. Because Winfree has not shown that he has a clear legal right to
a de novo resentencing hearing, we affirm the court of appeals’ judgment.
                             SUPREME COURT OF OHIO




                                        Facts
       {¶ 2} Winfree is currently incarcerated at the Toledo Correctional
Institution, serving several sentences for multiple felony convictions he received in
Lucas and Erie Counties. Relevant to this appeal, in 2011, the Lucas County Court
of Common Pleas accepted Winfree’s no-contest pleas to—and convicted him of—
two counts of vehicular assault. The judgment entry sentenced Winfree to eight
years in prison and ordered him to “pay restitution in an amount to be determined
at a hearing.”
       {¶ 3} Winfree did not file a timely notice of appeal from the trial court’s
judgment, and the court of appeals denied his motion for a delayed appeal. In May
2014, he filed a “Motion to Correct Void and Illegal Sentence” in the trial court.
He argued that his sentencing entry was not a final, appealable order because it “left
unresolved the issue of restitution.” On September 24, 2014, the trial court denied
Winfree’s motion; his appeal from that decision is pending.
       {¶ 4} On October 27, 2014, Winfree filed a “Petition for Writ of Mandamus
and/or Procedendo” in the Sixth District Court of Appeals to compel appellee,
Judge Frederick H. McDonald, to hold a de novo resentencing hearing and enter a
final, appealable order. The court of appeals issued an alternative writ, and Judge
McDonald moved to dismiss the petition for failure to state a claim under Civ.R.
12(B)(6).
       {¶ 5} The court of appeals denied Judge McDonald’s motion to dismiss.
The court held that Winfree’s original sentencing entry was not a final, appealable
order because it failed to specify the amount of restitution ordered as part of his
sentence. The court then granted in part and denied in part the requested writs and
held that Winfree is not entitled to a de novo resentencing hearing to correct the
error. Instead, the court of appeals ordered the trial court to “issue a sentencing
entry that complies with Crim.R. 32(C) and constitutes a final appealable order.”




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                                January Term, 2016




6th Dist. Lucas No. L-14-1222, ¶ 14 (Aug. 13, 2015). The court also suggested that
the trial court had two options for remedying the error:


       If, upon remand, the trial court elects to omit the portion of the
       sentence ordering restitution, it must issue a nunc pro tunc judgment
       entry eliminating the language that requires Winfree to “pay
       restitution in an amount to be determined at [a] hearing.”           If,
       however, the trial court elects to retain the portion of the sentence
       ordering restitution, the court must impose the amount of restitution
       at a limited resentencing hearing “in open court” pursuant to R.C.
       2929.18(A)(1).


(Emphasis and brackets sic.) Id. at ¶ 13.
       {¶ 6} On August 31, 2015, the trial court entered a nunc pro tunc order
“correcting the entry filed June 22, 2011.” The nunc pro tunc order omits the
language in the 2011 entry ordering Winfree to pay restitution.
       {¶ 7} On September 15, 2015, Winfree filed a notice of appeal from the
court of appeals’ judgment. In three propositions of law, he argues that he is
entitled to a de novo resentencing hearing and that a nunc pro tunc entry cannot be
issued to correct the error in the trial court’s original sentencing entry. In June
2016, Winfree filed a motion for judgment on the pleadings, asking that this court
expedite its review of his appeal.
                                      Analysis
I. Scope of Winfree’s appeal
       {¶ 8} Winfree argues that the court of appeals erred when it suggested that
the trial court could cure the error in the original judgment entry of conviction by
issuing a nunc pro tunc judgment entry. However, he does not have standing to
appeal as to that issue because an “ ‘[a]ppeal lies only on behalf of a party aggrieved




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                              SUPREME COURT OF OHIO




by the final order appealed from. Appeals are not allowed for the purpose of settling
abstract questions, but only to correct errors injuriously affecting the appellant.’ ”
State ex rel. Gabriel v. Youngstown, 75 Ohio St.3d 618, 619, 665 N.E.2d 209
(1996), quoting Ohio Contract Carriers Assn., Inc. v. Pub. Util. Comm., 140 Ohio
St. 160, 42 N.E.2d 758 (1942), syllabus.
        {¶ 9} The only portion of the court of appeals’ judgment “injuriously
affecting” Winfree is the ruling that he is not entitled to a de novo resentencing
hearing. Because it exceeded the scope of the relief sought, the appellate court’s
suggestion that the trial court issue a nunc pro tunc order to correct its error was
merely dicta, not a legally binding portion of the holding. See Cosgrove v.
Williamsburg of Cincinnati Mgt. Co., Inc., 70 Ohio St.3d 281, 284, 638 N.E.2d 991
(1994). Thus, we will not consider the propriety of the court of appeals’ suggestion
that a nunc pro tunc order could be used to correct the error in the trial court’s
original sentencing entry.
II. Challenge to partial denial of writ of mandamus
        {¶ 10} To be entitled to extraordinary relief in mandamus, Winfree must
establish a clear legal right to the requested relief, a clear legal duty on the part of
the trial court 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. Further, he must prove his entitlement to the writ by clear
and convincing evidence. Id. at ¶ 13.
        {¶ 11} The court of appeals correctly denied Winfree a writ of mandamus
to the extent he sought to compel the trial court to hold a de novo resentencing
hearing to correct the incomplete restitution order in its original judgment entry of
conviction. “[T]he remedy for a failure to comply with Crim.R. 32(C) is a revised
sentencing entry rather than a new hearing.” State ex rel. Alicea v. Krichbaum, 126
Ohio St.3d 194, 2010-Ohio-3234, 931 N.E.2d 1079, ¶ 2, citing State ex rel. Culgan
v. Medina Cty. Court of Common Pleas, 119 Ohio St.3d 535, 2008-Ohio-4609, 895




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                               January Term, 2016




N.E.2d 805, ¶ 8-10. Accordingly, Winfree failed to demonstrate that he has a clear
legal right to a de novo resentencing hearing.
       {¶ 12} As the court of appeals observed, had the trial court elected to
correct, rather than omit, the flawed restitution order included in the original
judgment entry of conviction, it would have been required to hold a resentencing
hearing for the limited purpose of determining and imposing a specific amount of
restitution. See R.C. 2929.18(A)(1). Thus, any error by the trial court in arriving
at the new judgment is a matter for direct appeal.
       {¶ 13} For the foregoing reasons, we affirm the judgment of the Sixth
District Court of Appeals. Winfree’s motion for judgment on the pleadings is
denied as moot.
                                                               Judgment affirmed
                                                               and motion denied.
       O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
                               _________________
       Edward A. Winfree, pro se.
       Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett,
Assistant Prosecuting Attorney, for appellee.
                               _________________




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