[Cite as State ex rel. Royster v. Brown, 2012-Ohio-2879.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO ex rel.,                                      JUDGES:
SERGIO M. ROYSTER                                           Hon. Patricia A. Delaney, P. J.
                                                            Hon. John W. Wise, J.
        Relator                                             Hon. Julie A. Edwards, J.

-vs-                                                        Case No. 2011 CA 00278

HON. CHARLES E. BROWN, JR.

        Respondent                                          OPINION




CHARACTER OF PROCEEDING:                                Petition for Writ of Mandamus



JUDGMENT:                                               Dismissed



DATE OF JUDGMENT ENTRY:                                 June 25, 2012



APPEARANCES:

For Relator                                             For Respondent

SERGIO M. ROYSTER, PRO SE                               JOHN D. FERRERO
RICHLAND CORR. INSTITUTION                              STARK COUNTY PROSECUTOR
Post Office Box 8107                                    RENEE M. WATSON
Mansfield, Ohio 44901-8107                              ASSISTANT PROSECUTOR
                                                        110 Central Plaza South, Suite 510
                                                        Canton, Ohio 44702-1413
Stark County, Case No. 2011 CA 00278                                                      2

Wise, J.

      {¶1}   Relator, Sergio M. Royster, has filed a Petition for Writ of Mandamus

requesting this Court issue a writ of mandamus requiring the trial court to resentence

Relator. Relator believes he is entitled to a reduced sentence due to the enactment of

H.B. 86. Respondent, Judge Charles Brown, has filed a motion to dismiss.

      {¶2}   To be entitled to the issuance of a writ of mandamus, Relator must

demonstrate: (1) a clear legal right to the relief prayed for; (2) a clear legal duty on the

respondent's part to perform the act; and, (3) that there exists no plain and adequate

remedy in the ordinary course of law. State ex rel. Master v. Cleveland (1996), 75 Ohio

St.3d 23, 26-27, 661 N.E.2d 180; State ex rel. Harris v. Rhodes (1978), 5 Ohio St.2d

41, 324 N.E.2d 641, citing State ex rel. National City Bank v. Bd. of Education (1977)

520 Ohio St.2d 81, 369 N.E.2d 1200.

      {¶3}   Relator was indicted in 2005 on one count of Tampering with Evidence

and one count of Possession of Cocaine. He plead guilty to those charges and was

sentenced to a period of community control. In 2007, Relator’s community control was

revoked, and Relator was sentenced to a term of imprisonment of 78 months.

      {¶4}   House Bill 86 was made effective beginning September 30, 2011.

Contained within H.B. 86 at Section 4 is the specific legislative intent not to make the

changes retroactive:

      {¶5}   “The amendments* * *apply to a person who commits an offense specified

or penalized under those sections on or after the effective date of this section and to a

person to whom division (B) of section 1.58(B) of the Revised Code makes the

amendments applicable.”
Stark County, Case No. 2011 CA 00278                                                   3


      {¶6}   R.C. 1.58(B) provides: “If the penalty, forfeiture, or punishment for any

offense is reduced by a reenactment or amendment of a statute, the penalty, forfeiture,

or punishment, if not already imposed, shall be imposed according to the statute as

amended.”

      {¶7}   Because Relator’s sentence was already imposed prior to the effective

date of H.B. 86, he is not entitled to have his sentence reduced. For this reason,

Relator has no clear legal right to the requested relief.

      {¶8}   Further, we find Relator has or had an adequate remedy at law by way of

appeal. Relator filed a motion in the trial court requesting that his sentence be reduced

or modified. The trial court denied the motion from which Relator could have appealed.

For example, we have already addressed the same issue raised by Relator via a direct

appeal. See State v. Fields 2011 WL 5855008, 1 (Ohio App. 5 Dist.).

      {¶9}   For these reasons, we find Relator has failed to establish the necessary

elements required for the issuance of a writ of mandamus.         The instant cause is

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


By: Wise, J.
Delaney, P. J., and
Edwards, J., concur.

                                             ___________________________________


                                             ___________________________________


                                             ___________________________________

                                                                JUDGES
JWW/d 0413
Stark County, Case No. 2011 CA 00278                                                  4


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




STATE OF OHIO ex rel.,                      :
SERGIO M. ROYSTER                           :
                                            :
       Relator                              :
                                            :
-vs-                                        :         JUDGMENT ENTRY
                                            :
HON. CHARLES E. BROWN, JR.                  :
                                            :
       Respondent                           :         Case No. 2011 CA 00278




       For the reasons stated in our accompanying Memorandum-Opinion, the writ of

mandamus will not issue, and the instant cause is dismissed for failure to state a claim

upon which relief may be granted.

       Costs assessed to Relator.


                                            ___________________________________


                                            ___________________________________


                                            ___________________________________

                                                               JUDGES
