[Cite as State ex rel. Mitchell v. Enlow, 2013-Ohio-3572.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                      PORTAGE COUNTY, OHIO


STATE OF OHIO ex rel.                                        :   PER CURIAM OPINION
JAMES E. MITCHELL,
                                                             :
                 Relator,                                        CASE NO. 2013-P-0024
                                                             :
        - vs -
                                                             :
JUDGE JOHN A. ENLOW,
                                                             :
                 Respondent.


Original Action for Writ of Mandamus.

Judgment: Petition dismissed.


James E. Mitchell, pro se, PID# A293032, Marion Correctional Institution, 940 Marion-
Williamsport Road, St. Marion, OH 43302 (Relator).

Victor V. Vigluicci, Portage County Prosecutor, 241 South Chestnut Street, Ravenna,
OH 44266 (For Respondent).


PER CURIAM

        {¶1}     Pending before this court is relator, James E. Mitchell’s, Petition for Writ of

Mandamus, and respondent, Judge John A. Enlow’s, Motion to Dismiss.                     For the

following reasons, Mitchell’s Petition is dismissed.

        {¶2}     On March 27, 2013, Mitchell filed a Petition for Writ of Mandamus in this

court. The Petition alleged that, in Portage County Court of Common Pleas Case No.

1996 CR 00223, Mitchell was convicted of one count of Rape and one count of

Aggravated Burglary. Mitchell’s convictions were reversed in State v. Mitchell, 11th
Dist. Portage No. 1997-P-0074, 1998 Ohio App. LEXIS 5809 (Dec. 4, 1998).               On

remand, the trial court entered a Nolle Prosequi with respect to the Rape conviction, on

the State’s motion. No further prosecution of Mitchell occurred in Case No. 1996 CR

00223.

       {¶3}   Mitchell subsequently learned that the Aggravated Burglary conviction

remained on his record.

       {¶4}   On November 9, 2012, Mitchell filed a Motion to Correct the Record,

requesting “that a journal entry be certified by the court removing the conviction from his

record, and that the Ohio Department of Rehabilitation and Corrections (Bureau of

Sentence Computation) be ordered to correct their records pertaining to the Defendant.”

       {¶5}   “Mandamus is a writ, issued in the name of the state to an inferior tribunal,

a corporation, board, or person, commanding the performance of an act which the law

specially enjoins as a duty resulting from an office, trust, or station.” R.C. 2731.01. An

action for mandamus will lie “when a trial court has refused to render, or unduly delayed

rendering, a judgment.” (Citation omitted.) State ex rel. Culgan v. Collier, 135 Ohio

St.3d 436, 2013-Ohio-1762, 988 N.E.2d 564, ¶ 10.

       {¶6}   In his Motion to Dismiss, Judge Enlow contended, in part, that the relief

sought by Mitchell has been granted. On May 20, 2013, the trial court, in Case No.

1996 CR 00223, entered a Nolle Prosequi to the Indictment charging Mitchell with

Aggravated Burglary, on the State’s motion. On May 21, 2013, the trial court overruled

Mitchell’s Motion to Correct the Record as moot.

       {¶7}   Judge Enlow further argued that he “is not the appropriate party to modify

Mr. Mitchell’s record of conviction maintained by the Ohio Department of Rehabilitation




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and Corrections,” as he “is not the keeper of the records maintained by the Ohio

Department of Rehabilitation and Corrections.”

      {¶8}   It is well-established that mandamus will not lie to “compel the

performance of a duty that has already been performed.” (Citation omitted.) Culgan,

135 Ohio St.3d 436, 2013-Ohio-1762, 988 N.E.2d 564, at ¶ 13.

      {¶9}   In a Memorandum in Opposition, untimely filed on July 5, 2013, Mitchell

acknowledges that his Petition has been rendered moot, but contends that we should

address the matter as one capable of repetition yet evading review, in that he is left

“with no choice but to file repetitive motion(s) with Respondent in an effort to remove

this conviction from his record.”   We disagree.    Beyond nolling the conviction for

Aggravated Burglary, Mitchell has not identified any further action that Judge Enlow is

under a duty to perform for the purpose of removing the conviction from his record. As

noted by Judge Enlow, the record of Mitchell’s conviction is maintained by the non-party

Ohio Department of Rehabilitation and Correction.

      {¶10} For the reasons stated therein, the Motion to Dismiss is well-taken.

      {¶11} Mitchell’s Petition for Writ of Mandamus is hereby dismissed, and any

pending motions are overruled as moot.



TIMOTHY P. CANNON, P.J., DIANE V. GRENDELL, J., COLLEEN MARY O’TOOLE,
J., concur.




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