[Cite as State ex rel. Viceroy v. Strickland-Saffold, 2011-Ohio-3077.]



          Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 96594


                           STATE OF OHIO, EX REL.,
                              PETER VICEROY

                                                              RELATOR

                                                        vs.

        JUDGE SHIRLEY STRICKLAND-SAFFOLD
               Court of Common Pleas
                                                              RESPONDENT


                                           JUDGMENT:
                                           WRIT DENIED


                                           Writ of Procedendo
                                           Motion No. 444225
                                           Order No. 445531

        RELEASE DATE:                    June 22, 2011
                                                        -i-
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FOR RELATOR

Peter Viceroy, 303-314
RiCI
1001 Olivesburg Rd.
P. O. Box 8107
Mansfield, Ohio 44901-8107


FOR RESPONDENT

William D. Mason
Cuyahoga County Prosecutor

James E. Moss
Assistant Prosecuting Attorney
The Justice Center, 8 Floor
                     ht




1200 Ontario Street
Cleveland, Ohio 44113




PATRICIA ANN BLACKMON, P.J.:

       {¶ 1} Relator, Peter Viceroy, is the defendant in State v. Viceroy, Cuyahoga Cty. Court

of Common Pleas Case No. CR-315048, which has been assigned to respondent judge.              The

grand jury issued a one-count indictment for felonious assault with a firearm specification and a

violence specification.   After trial to a jury, respondent sentenced Viceroy to three years on

the firearm specification and three to fifteen years for felonious assault.   This court affirmed.

State v. Viceroy (May 9, 1996), Cuyahoga App. No. 68890.

       {¶ 2} In 2010, Viceroy filed an original action in procedendo in this court to compel
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respondent to issue a final order in Case No. CR-315048.        This court granted the writ and

stated: “Accordingly, this court grants the writ of procedendo and orders the respondent to

issue a final, appealable order in the underlying case which complies with Crim.R. 32(C) and

which corrects the various defects and errors in the original sentencing journal entry, including

a clear statement that the jury found Peter Viceroy guilty of the firearm specification and a

resolution of the violence specification, which could be a dismissal or a nolle.”   State ex rel.

Viceroy v. Strickland Saffold, Cuyahoga App. No. 95623, 2011-Ohio-5563, ¶7.

       {¶ 3} Respondent issued a new sentencing entry in response to Case No. 95623 which

states, in part: “On a former day a jury found defendant Peter Viceroy guilty of felonious

assault in violation of R.C. 2903.11 with a firearm specification (specification one) as charged

in the indictment.     The violence specification (specification two) has been dismissed.

Defendant Peter Viceroy is sentenced *     * * for a term of (3) three years (mandatory) on the

firearm specification to be served prior to and consective [sic] with the sentence of (3) three

years to (15) fifteen years on the felonious assault charge.”   Case No. CR-315048, December

7, 2010 Entry (“resentencing entry”).   Viceroy has not appealed the resentencing entry.

       {¶ 4} Viceroy contends that the resentencing entry is not a final appealable order.    He

requests this court to compel respondent to issue a final order.   For the reasons stated below,

we grant respondent’s motion for summary judgment, deny Viceroy’s cross-motion for

summary judgment and deny relief in procedendo.
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       {¶ 5} The criteria for relief in procedendo are well-established.         The relator must

demonstrate: (1) a clear legal right to proceed in the underlying matter; and (2) the lack of an

adequate remedy in the ordinary course of the law.        See, e.g., State ex rel. Charvat v. Frye,

114 Ohio St.3d 76, 2007-Ohio-2882, 868 N.E.2d 270, at ¶13.

       {¶ 6} In Viceroy’s first action in procedendo, Case No. 95623, this court instructed

respondent to issue a sentencing entry which complies with Crim.R. 32(C) and State v. Baker,

119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163.           The resentencing entry:    states the

means of conviction; disposes of all counts and specifications; imposes sentence on the count

and specification which resulted in a finding of guilt; imposes sentence; and is both signed by

the judge and journalized by the clerk.      Given the limited portions of the record available to

this court in this original action, we must conclude that the resentencing entry complies with

Crim.R. 32(C) and Baker and is a final appealable order.

       {¶ 7} Viceroy has or had a right to appeal the resentencing entry.       See, e.g., State ex

rel. Wright v. Cuyahoga Cty. Court of Common Pleas, Cuyahoga App. No. 96397,

2011-Ohio-2159.      His concerns about the scope of the resentencing entry — that is, disposing

of the violence specification without a hearing — could be addressed to this court in the

exercise of its appellate jurisdiction.   Regardless, in Viceroy’s first action in procedendo, Case

No. 95623, respondent was not instructed to hold a hearing but to issue a final appealable order.

 Viceroy, supra, ¶7.
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         {¶ 8} As a consequence, we must conclude that Viceroy does not have a clear legal

right to proceed in the underlying case for the purpose of requiring respondent to issue a new

sentencing entry.   Likewise, Viceroy has or had an adequate remedy in the ordinary course of

the law by way of appeal.

         {¶ 9} Accordingly, respondent’s motion for summary judgment is granted and relator’s

cross-motion for summary judgment is denied.       Relator to pay costs.   The clerk is directed to

serve upon the parties notice of this judgment and its date of entry upon the journal.      Civ.R.

58(B).

         Writ denied.




PATRICIA ANN BLACKMON, PRESIDING JUDGE

LARRY A. JONES, J., and
SEAN C. GALLAGHER, J., CONCUR
