[Cite as State ex rel. Rothe v. Berens, 2012-Ohio-1804.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                               JUDGES:
STATE OF OHIO, EX REL                                 :        Hon. Patricia A. Delaney, P.J.
KRISTOPHER ROTHE                                      :        Hon. W. Scott Gwin, J.
                                                      :        Hon. Julie A. Edwards, J.
                                      Relator         :
                                                      :
-vs-                                                  :        Case No. 2011-CA-62
                                                      :
JUDGE RICHARD E. BERENS,                              :
COMMON PLEAS COURT JUDGE                              :        OPINION

                                Respondent




CHARACTER OF PROCEEDING:                                   Writ of Mandamus



JUDGMENT:                                                  Dismissed


DATE OF JUDGMENT ENTRY:                                    April 23, 2012

APPEARANCES:

For Relator                                                For Respondent

MARK J. MILLER
SHAW & MILLER
555 City Park Avenue
Columbus, OH 43215
[Cite as State ex rel. Rothe v. Berens, 2012-Ohio-1804.]


Gwin, J.

        {¶1}     Relator, Kristopher Rothe, has filed an Application/Petition for Writ of

Mandamus requesting this Court issue a writ which would require Respondent to

“properly dispose of count six of the indictment . . . and make the order final and

appealable.” Additionally, Relator has filed a motion for default judgment. Respondent

has not filed an answer to the complaint nor any response to the motion for default

judgment.

        {¶2}     Because we find the petition fails to state a claim upon which relief may be

granted, we deny the motion for default judgment.

        {¶3}     “Sua sponte dismissal of a complaint for failure to state a claim upon

which relief can be granted is appropriate if the complaint is frivolous or the claimant

obviously cannot prevail on the facts alleged in the complaint. State ex rel. Bruggeman

v. Ingraham (1999), 87 Ohio St.3d 230, 231, 718 N.E.2d 1285, 1287.” State ex rel.

Kreps v. Christiansen (2000), 88 Ohio St.3d 313, 316, 725 N.E.2d 663, 667.

        {¶4}     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.

        {¶5}     Relator argues that because Count Six of the Indictment was dismissed

without prejudice, Count Six remains pending. He further suggests as long as Count

Six remains pending, the trial court has failed to issue a final, appealable order.1


1
  We note Relator has already appealed the same order which he now claims was not a final, appealable
order. This Court affirmed his conviction and sentence in Fairfield Case Number 2009 CA 00060.
Fairfield County, Case No. 2011-CA-62                                                   3


Finally, Relator argues any dismissal of Count Six must be contained within the final,

appealable order. In the underlying case, the trial court signed a Nolle Prosequi as to

Count Six which was journalized separately from the sentencing entry.

      {¶6}   With regard to the argument that the dismissal must be contained within

the same document as the sentencing entry, the Supreme Court explained, “[O]ur

holding in State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163,

syllabus, ‘requires a full resolution of those counts for which there were convictions. It

does not require a reiteration of those counts and specifications for which there were no

convictions, but were resolved in other ways, such as dismissals, nolled counts, or not

guilty findings.’” State ex rel. Davis v. Cuyahoga Cty. Court of Common Pleas, 127

Ohio St.3d 29, 30, 936 N.E.2d 41, 41 (Ohio, 2010).

      {¶7}   Because there was not a conviction as to Count Six in the underlying

case, its resolution is not required to be in the judgment entry of conviction. For this

reason, Relator cannot demonstrate a clear legal right to have the entry of conviction

contain both the dismissal as well as conviction.

      {¶8}   We also have recently addressed the issue of whether a dismissal without

prejudice is a sufficient disposition to make an entry of conviction a final, appealable

order. We held,

      [T]he Ohio Supreme Court stated, in dicta, that a prosecution ended by a

      nolle prosequi has the same effect as one ended by an acquittal-that

      “there can thereafter be no conviction of the accused in that proceeding.”

      Id. at 159. (Emphasis added).
Fairfield County, Case No. 2011-CA-62                                               4


      When a criminal case is dismissed, it is over—except in the case where

      the dismissal is appealed. This dismissal was not appealed in appellant's

      case.

      ***

      In the case at bar, any retrial of appellant upon the dismissed charged

      would necessitate a new indictment and therefore constitute a new

      proceeding.

      State v. Manns 2012 WL 195413, 4 (Ohio App. 5 Dist.).

      {¶9}    Likewise in this case, Relator can no longer be tried on Count Six where

the Nolle Prosequi was entered. We find the Nolle Prosequi entered on the record

prevents retrial of Relator except upon a new indictment.
Fairfield County, Case No. 2011-CA-62                                                     5


      {¶10} Relator is seeking to have the trial court enter a final, appealable order in

his underlying criminal case. The trial court has already provided the order, therefore,

the instant petition is moot. Further, Relator cannot establish the necessary elements

required for the issuance of a writ of mandamus. For these reasons, the instant petition

is dismissed as moot and for failure to state a claim upon which relief may be granted.

By Gwin, J., and

Delaney, P.J., concur

Edwards, J., dissents



                                             _________________________________
                                             HON. W. SCOTT GWIN


                                             _________________________________
                                             HON. PATRICIA A. DELANEY


                                             _________________________________
                                             HON. JULIE A. EDWARDS




WSG:clw 0224
Fairfield County, Case No. 2011-CA-62                                               6

EDWARDS, J., DISSENTING OPINION

       {¶11} I respectfully disagree with the majority’s analysis and disposition of

Relator’s Complaint. For the reasons stated in my dissent in State v. Manns, 2012 WL

195413 (Ohio App. 5 Dist.), I would find there was no final, appealable order in the

underlying case. I would issue the writ and remand the case to the trial court for the

purpose of having the trial court properly resolve count six of the indictment.




                                            ___________________________________
                                             HON. JULIE A. EDWARDS
[Cite as State ex rel. Rothe v. Berens, 2012-Ohio-1804.]


              IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO, EX REL                                      :
KRISTOPHER ROTHE                                           :
                                                           :
                                         Relator           :
                                                           :
                                                           :
-vs-                                                       :       JUDGMENT ENTRY
                                                           :
JUDGE RICHARD E. BERENS,                                   :
COMMON PLEAS COURT JUDGE                                   :
                                                           :
                                                           :
                                   Respondent              :       CASE NO. 2011-CA-62




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

mandamus is dismissed.




                                                               _________________________________
                                                               HON. W. SCOTT GWIN


                                                               _________________________________
                                                               HON. PATRICIA A. DELANEY


                                                               _________________________________
                                                               HON. JULIE A. EDWARDS
