[Cite as State ex rel. Bonner v. Serrott, 2019-Ohio-2137.]

                               IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT

The State ex rel.                                        :
Kendric Bonner,
                                                         :
                 Relator,
                                                         :
v.                                                                    No. 18AP-271
                                                         :
Judge: Mark Serrott,                                               (REGULAR CALENDAR)
                                                         :
                 Respondent.
                                                         :


                                             D E C I S I O N

                                        Rendered on May 30, 2019


                 Kendric Bonner, pro se.

                 Ron O'Brien, Prosecuting Attorney, and Arthur J. Marziale,
                 Jr., for respondent.

                            IN MANDAMUS AND/OR PROCEDENDO
                            ON RESPONDENT'S MOTION TO DISMISS

McGRATH, J.
        {¶ 1} Relator, Kendric Bonner, an inmate of the Pickaway Correctional Institution
("PCI"), commenced this original action requesting a writ of mandamus or alternatively a
writ of procedendo ordering respondent, the Honorable Mark Serrott, a judge of the
Franklin County Court of Common Pleas, to vacate his sentencing entry filed March 25,
2015 in Franklin C.P. No. 92CR-5290, which modified a prior sentencing entry, and to
enter a new sentencing order that presents a final, appealable order. For the reasons that
follow, we adopt the magistrate's decision and dismiss the action.
I. Facts and Procedural Background
        {¶ 2} In 1992, relator was indicted on one count of aggravated murder, one count
of felonious assault, each of which contained a gun specification, and also a third count of
No. 18AP-271                                                                              2


having a weapon while under disability. After a jury trial, relator was convicted of all the
charges and specifications charged in the indictment. On June 18, 1993, the trial court
issued a judgment entry imposing sentence. Relator appealed, and this court affirmed in
part, reversed in part and remanded the case to the trial court. See State v. Bonner, 10th
Dist. No. 93APA07-951 (Apr. 12, 1994). The trial court issued a modified judgment entry
of conviction.
       {¶ 3} Relator filed a motion for a final, appealable order pursuant to Crim.R.
32(C), contending that the judgment entry was not a final, appealable order because it did
not state the guilty plea, the jury verdict, or the finding of the court upon which the
conviction is based and failed to include the specific sentences for all counts. Bonner.
The trial court denied relator's motion and relator filed a timely notice of appeal.
       {¶ 4} This court determined that the modified judgment entry was not a final,
appealable order under Crim.R. 32(C) because it did not include all of relator's sentences.
This court dismissed the appeal for lack of a final, appealable order. State v. Bonner, 10th
Dist. No. 14AP-611, 2015-Ohio-1010.
       {¶ 5} On March 25, 2015, the trial court rendered a second modified judgment
entry. Relator did not file a notice of appeal from the March 25, 2015 entry. On April 17,
2018, relator filed an original action seeking a writ of mandamus and/or procedendo
claiming that the March 25, 2015 entry is invalid and this court should order the trial
court to vacate the March 25, 2015 entry and enter a new entry that will provide him with
a final, appealable order. On May 18, 2018, respondent filed a motion to dismiss.
       {¶ 6} This court referred the matter to a magistrate pursuant to Civ.R. 53(C) and
Loc.R. 13(M) of the Tenth District Court of Appeals. On July 19, 2018, the magistrate
issued a decision, including findings of fact and conclusions of law, which is appended
hereto. The magistrate determined that relator could have filed a direct appeal to this
court from the March 25, 2015 entry and since he did not, he failed to exercise a plain and
adequate remedy in the ordinary course of the law and thus, neither a writ of mandamus
nor a writ of procedendo was available to relator. The magistrate concluded that the court
should grant respondent's motion to dismiss.
       {¶ 7} Relator filed objections to the magistrate's decision arguing that the
March 25, 2015 entry is not a final, appealable order and thus, filing an appeal would have
No. 18AP-271                                                                             3


been futile. Therefore, relator contends that he could never have an adequate remedy at
law because there can be no appeal without a final, appealable order.
       {¶ 8} In his motion to dismiss, respondent argues that relator cannot seek an
extraordinary writ in place of a proper appeal. Relator's appeal is a plain and adequate
remedy in the ordinary course of law and the fact that he failed to file an appeal does not
permit him to maintain a mandamus action. This is true even though possible legal
remedies are no longer available. State ex rel. Ross v. State, 102 Ohio St.3d 73, 2004-
Ohio-1827, ¶ 5-6.
       {¶ 9} It is well-settled that one of the requirements for a writ of mandamus to
issue is that the relator must demonstrate he has no adequate remedy in the ordinary
course of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983). Further, a
relator must demonstrate the lack of an adequate remedy in the ordinary course of law in
order to be entitled to a writ of procedendo. State ex rel. Dawson v. Summit Cty. Court of
Common Pleas, 146 Ohio St.3d 435, 2016-Ohio-1597, ¶ 6. An appeal constitutes a plain
and adequate remedy in the ordinary course of the law. See State ex rel. Willis v. Sheboy,
6 Ohio St.3d 167 (1983). When relator failed to appeal the March 25, 2015 entry, he failed
to exercise a plain and adequate remedy in the ordinary course of the law that bars this
mandamus action. Further, relator cannot demonstrate the lack of an adequate remedy in
the ordinary course of the law and a writ of procedendo is unavailable.
       {¶ 10} Finding no error of law or other defect on the face of the magistrate's
decision, we adopt the decision as our own, including the findings of fact and conclusions
of law contained therein. On review of the magistrate's decision, an independent review
of the record and applicable law, we overrule relator's objection, grant respondent's
motion to dismiss, and dismiss this action.
                                                 Respondent's motion to dismiss granted;
                                                                        action dismissed.

                         KLATT, P.J. and BRUNNER, J., concur.

              McGRATH, J., retired, of the Tenth Appellate District,
              assigned to active duty under the authority of the Ohio
              Constitution, Article IV, Section 6(C).
                                 _________________
No. 18AP-271                                                                           4


                                   APPENDIX

                          IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT

The State ex rel.                               :
Kendric Bonner,
                                                :
              Relator,
                                                :
v.                                                               No. 18AP-271
                                                :
Judge: Mark Serrott,                                        (REGULAR CALENDAR)
                                                :
              Respondent.
                                                :


                           MAGISTRATE'S DECISION

                                Rendered on July 19, 2018


              Kendric Bonner, pro se.

              Ron O'Brien, Prosecuting Attorney, and Arthur J. Marziale,
              Jr., for respondent.


                         IN MANDAMUS AND/OR PROCENDENDO
                         ON RESPONDENT'S MOTION TO DISMISS

       {¶ 11} In this original action, relator, Kendric Bonner, an inmate of the Pickaway
Correctional Institution ("PCI"), requests a writ of mandamus and/or procedendo
ordering respondent, the Honorable Mark Serrott, a judge of the Franklin County Court of
Common Pleas, to vacate his sentencing entry filed March 25, 2015 in common pleas case
No. 92CR-5290 which modified a prior sentencing entry, and to enter a new sentencing
order that presents a final appealable order.
Findings of Fact:
No. 18AP-271                                                                                5


       {¶ 12} 1. On March 19, 2015, this court issued its written decision in State v.
Bonner, 10th Dist. No. 14AP-611, 2015-Ohio-1010, regarding an appeal filed by relator in
this court challenging the trial court's July 10, 2014 denial of his June 5, 2014 motion for a
final appealable order.
       {¶ 13} 2. In this court's March 19, 2015 written decision, this court concluded:
              Because the modified judgment entry is not a final
              appealable order, and because defendant filed an appeal
              from the trial court's order denying his motion for a final
              appealable order instead of filing a complaint for a writ of
              mandamus and/or procedendo, we lack jurisdiction to
              resolve this appeal. Therefore, the appeal is dismissed for
              lack of a final appealable order.

       {¶ 14} 3. On March 20, 2015, this court filed its judgment entry in case No. 14AP-
611:
              For the reasons stated in the decision of this court rendered
              herein on March 19, 2015, the appeal does not present a final
              and appealable order. Therefore, it is the judgment and order
              of this court that this appeal is sua sponte dismissed for lack
              of a final appealable order.

       {¶ 15} 4. On March 23, 2015, respondent rendered his entry later filed in the
common pleas court on March 25, 2015 in response to this court's written decision.
Respondent's March 25, 2015 entry states:
              This matter is before the Court upon the Defendant's Motion
              for a Final Appealable Order and upon the Dismissal of the
              Defendant's Appeal of his sentence. In the Appeal, the Court
              of Appeals ruled that the prior Judge's entry did not
              constitute a final appealable order. State v. Bonner 2015-
              Ohio-1010 (Fr. Co. App.) The Court of Appeals opinion
              indicated that this Court should prepare a corrected entry
              complying with Crim. R. 32(C) or indicating the Defendant
              could file a writ of Mandamus and/or Procedendo. Id. ¶ 29.
              Therefore, the Court enters the following modified Judgment
              Entry.

              ***

              Based upon all the foregoing, the Court pursuant to Crim.
              R. 36, having reviewed all the legal requirements, then
              existing, for imposing sentences and upon the direction of
No. 18AP-271                                                                              6


              the Court of Appeals in 2015 corrects and modifies the
              previous entries as follows:

              [One] The Defendant is sentenced to fifteen (15) years to life
              on Count One, to be served consecutive to an additional
              three (3) years for the Firearm Specification, for a total of
              eighteen (18) years to life,

              [Two] The Defendant is sentenced to eight (8) to fifteen (15)
              years on Count Two, to be served consecutive to the
              sentenced [sic] imposed on Count One,

              [Three] The Defendant's aggregated sentence on both counts
              is eighteen (18) years to life to be served consecutive to eight
              (8) years to fifteen (15) years all to be served at the Ohio
              Department of Rehabilitation and Corrections.

       {¶ 16} 5. On April 17, 2018, over two years after respondent's March 25, 2015
entry, relator filed this original action seeking a writ of mandamus and/or procedendo. In
this action, relator claims that respondent's March 25, 2015 entry is invalid and that this
court should order respondent to vacate the March 25, 2015 entry and to enter a new
entry that will provide relator with a final appealable order.
       {¶ 17} 6. On May 18, 2018, respondent filed a motion to dismiss.
       {¶ 18} 7. On May 29, 2018, relator filed what he calls a "reply" to respondent's
motion to dismiss.
       {¶ 19} 8. This action is now before the magistrate on respondent's May 18, 2018
motion to dismiss.
Conclusions of Law:
       {¶ 20} Because relator cannot bring this original action as a substitute for an
appeal from respondent's March 25, 2015 entry, an appeal that relator failed to bring, it is
the magistrate's decision that this court deny relator's request for a writ of mandamus
and/or procedendo, as more fully explained below.
                              Pertinent Law─Mandamus
       {¶ 21} It is well-settled that, in order for a writ of mandamus to issue, the relator
must demonstrate: (1) that he has a clear legal right to the relief requested, (2) that the
respondent is under a clear legal duty to perform the act, and (3) that relator has no plain
No. 18AP-271                                                                                7


and adequate remedy in the ordinary course of the law.             State ex rel. Berger v.
McMonagle, 6 Ohio St.3d 28 (1983).
                             Pertinent Law─Procedendo
       {¶ 22} Procedendo is an order from a court of superior jurisdiction to proceed to
judgment; it does not attempt to control the inferior court as to what the judgment should
be. State ex rel. Miley v. Parrott, 77 Ohio St.3d 64 (1996); State ex rel. Sherrills v.
Common Pleas, 72 Ohio St.3d 461 (1995).
       {¶ 23} A writ of procedendo is appropriate when a court has either refused to
render a judgment or has unnecessarily delayed proceeding to judgment. Miley at 65,
citing State ex rel. Crandall, Pheils & Wisniewski v. DeCessna, 73 Ohio St.3d 180 (1995).
       {¶ 24} To be entitled to a writ of procedendo, the relator must show 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. State ex rel. Dawson v.
Summit Cty. Court of Common Pleas, 146 Ohio St.3d 435, 2016-Ohio-1597, ¶ 6.
       {¶ 25} A writ of procedendo will not issue to compel the performance of a duty
already performed. State ex rel. Morgan v. Fais, 146 Ohio St.3d 428, 2016-Ohio-1564.
                          Pertinent Law─Motion to Dismiss
       {¶ 26} A Civ.R. 12(B)(6) motion to dismiss tests the sufficiency of a complaint.
State ex rel. Boggs v. Springfield Local School Dist. Bd. of Edn., 72 Ohio St.3d 94 (1995),
citing State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545 (1992).
       {¶ 27} In reviewing the complaint, the court must take all of the material
allegations as admitted and construe all reasonable inferences in favor of the non-moving
party. Id.
       {¶ 28} "In order for a court to dismiss a complaint for failure to state a claim upon
which relief can be granted (Civ.R. 12(B)(6)), it must appear beyond doubt from the
complaint that the plaintiff can prove no set of facts entitling him to recovery." O'Brien v.
Univ. Community Tenants Union, 42 Ohio St.2d 242 (1975), syllabus.
                                     Judicial Notice
       {¶ 29} This court can take judicial notice of court documents relating to relator's
action. State ex rel. Womack v. Marsh, 128 Ohio St.3d 303, 2011-Ohio-229. It can be
No. 18AP-271                                                                                 8


noted that relator appended to his complaint a copy of respondent's March 25, 2015 entry.
This court can take notice of its own judgment entry filed in case No. 14AP-611 on
March 20, 2015. Likewise, this court can take notice of its own March 19, 2015 written
decision in case No. 14AP-611.
                                          Analysis
       {¶ 30} As respondent correctly points out, relator could have taken a direct appeal
to this court from the March 25, 2015 entry of respondent that resentenced him. Thus,
relator failed to exercise a plain and adequate remedy in the ordinary course of the law
that bars this mandamus action.
       {¶ 31} The writ of procedendo also requires the relator to show the lack of an
adequate remedy in the ordinary course of the law.
       {¶ 32} Again, relator cannot show the lack of an adequate remedy in the ordinary
course of the law and, thus, a writ of procedendo is not available to relator.
       {¶ 33} Accordingly, for all the above reasons, it is the magistrate's decision that this
court grant respondent's motion to dismiss.


                                               /S/ MAGISTRATE
                                               KENNETH W. MACKE




                              NOTICE TO THE PARTIES

              Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
              error on appeal the court's adoption of any factual finding or
              legal conclusion, whether or not specifically designated as a
              finding of fact or conclusion of law under Civ.R.
              53(D)(3)(a)(ii), unless the party timely and specifically objects
              to that factual finding or legal conclusion as required by Civ.R.
              53(D)(3)(b).
