[Cite as State ex rel. McClelland, 2013-Ohio-5442.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 100427


                             STATE OF OHIO, EX REL.
                                JOHN A. JOHNSON
                                                            RELATOR

                                                      vs.


            JUDGE ROBERT C. McCLELLAND, ET AL.
                                                            RESPONDENTS



                                      JUDGMENT:
                                  COMPLAINT DISMISSED


                                    Writ of Mandamus/Procedendo
                                          Motion No. 469156
                                          Order No. 469777


        RELEASE DATE:               December 6, 2013
FOR RELATOR

John Johnson, pro se
 Inmate No. 145-213
Hocking Hills Correctional Institution
16759 Snake Hollow Road
P.O. Box 59
Nelsonville, Ohio 45764-0059

ATTORNEYS FOR RESPONDENTS

Timothy J. McGinty
Cuyahoga County Prosecutor
James E. Moss
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

      {¶1} John A. Johnson seeks a writ of mandamus/procedendo in order to compel

Judge Robert C. McClelland and the Cuyahoga County Court of Common Pleas, the

respondents, to resentence him in State v. Johnson, Cuyahoga C.P. No. CR-023071 (Mar.

5, 1976). Johnson alleges that an order of the Supreme Court of Ohio, as journalized on

August 16, 1978, requires that he “be brought back before said lower court [Cuayhoga

Cty. Court of Common Pleas] to have a proper and legal Journal Entry Order of

Commitment issued, as well as a legal Valid Final Appealable Order issued in case No.

CR-023071 that comports with both State and Federal laws without unnecessary delay.”

The respondents have filed a motion to dismiss, which we grant for the following reasons.

      {¶2} A writ of procedendo shall issue if a court has refused to render a judgment

or has unnecessarily delayed in proceeding to judgment. State ex rel. Charvat v. Frye,

114 Ohio St.3d 76, 2007-Ohio-2882, 868 N.E.2d 270. In addition, for this court to issue

a writ of mandamus, Johnson must establish: (1) he possesses a clear legal right to the

requested relief; (2) the respondents possess a clear legal duty to perform the requested

relief, and (3) there exists no adequate remedy in the ordinary course of the law. In

addition, although mandamus may be employed to compel a court to exercise judgment or

discharge a function, it may not control judicial discretion, even if that discretion is

grossly abused. State ex rel. Ney v. Niehaus, 33 Ohio St.3d 118, 515 N.E.2d 914 (1987).

Furthermore, mandamus is not a substitute for appeal.          State ex rel. Keenan v.

Calabrese, 69 Ohio St.3d 176, 631 N.E.2d 119 (1994); State ex rel. Pressley v. Indus.
Comm., 11 Ohio St.2d 141, 228 N.E.2d 631 (1967). Thus, mandamus does not lie to

correct errors and procedural irregularities in the course of a case.      State ex rel.

Jerninghan v. Gaughan, 8th Dist. Cuyahoga No. 67787, 1994 Ohio App. LEXIS 6227

(Sept 26, 1994).

      {¶3} If Johnson possessed an adequate remedy in the ordinary course of the law,

regardless of whether the remedy was employed, relief in mandamus is precluded. State

ex rel. Tran v. McGrath, 78 Ohio St.3d 45, 1997-Ohio-245, 676 N.E.2d 108. Moreover,

mandamus is an extraordinary remedy that is to be exercised with great caution and

granted only when the right is clear. Mandamus will not issue in doubtful cases. State

ex rel. Shafer v. Ohio Turnpike Comm., 159 Ohio St. 581, 113 N.E.2d 14 (1953).

Furthermore, mandamus will not issue to compel a vain act. State ex rel. Cotton v. Ghee,

84 Ohio St.3d 54, 1998-Ohio-679, 701 N.E.2d 989.

      {¶4} Contrary to Johnson’s claim, the Supreme Court of Ohio did not vacate his

original sentence of death and remand for resentencing. The Supreme Court of Ohio, on

August 16, 1978, modified the sentence of death to life imprisonment.

      The Court coming now to consider the judgment of the Supreme Court of
      the United States in the cases of Lockett v. Ohio and Bell v. Ohio, and in
      conformity with the mandates issued on the basis thereof, hereby orders that
      the judgments in the cases set forth hereinafter, affirming the death
      sentence of each of the defendants [78-510 State of Ohio v. John Johnson]
      named therein, are hereby modified and the death sentence of each of such
      defendants is reduced to life imprisonment. (Emphasis added.)
       {¶5} Thus, no duty was created that required the respondents to conduct a new

sentencing hearing. Johnson’s sentence was modified, by the Supreme Court of Ohio, to

life imprisonment.

       {¶6} In addition, the doctrine of res judicata prevents this court from issuing a

writ of mandamus/procedendo on behalf of Johnson. In two separate original actions, as

premised upon petitions for writs of habeas corpus, the Supreme Court of Ohio held that

Johnson was not entitled to resentencing pursuant to Crim.R. 32 and Crim.R. 43 after the

sentence of death was modified to life imprisonment. See Johnson v. Hudson, 118 Ohio

St.3d 308, 2008-Ohio-2451, 888 N.E.2d 2451; Johnson v. Mitchell, 85 Ohio St.3d 123,

1999-Ohio-441, 707 N.E.2d 471. Thus, the doctrine of res judicata prevents Johnson from

arguing that he is entitled to be resentenced. Grava v. Parkman Twp., 73 Ohio St.3d

379, 653 N.E.2d 226 (1995). See also Fort Frye Teachers Assn., OEA/NEA v. State

Emp. Relations Bd., 81 Ohio St.3d 392, 692 N.E.2d 140 (1998), Johnson’s Island, Inc. v.

Danbury Twp. Bd. of Trustees, 69 Ohio St.2d 241, 431 N.E.2d 672 (1982).

       {¶7} Finally, Section 3 of S.B. 1, which became effective on October 19, 1981,

applies only if the sentence of death is vacated. State v. Garduno, 11th Dist. Portage No.

2012-P-0139, 2013-Ohio-4300.        Because the Supreme Court of Ohio modified the

sentence of death, but did not vacate the sentence for aggravated murder, Johnson is not

entitled to a resentencing hearing pursuant to Section 3 of S.B. 1.
      {¶8} Accordingly, we grant the respondents’ motion to dismiss.           Costs to

Johnson. The court directs the clerk of court to serve all parties with notice of this

judgment and the date of entry upon the journal as required by Civ.R. 58(B).

      {¶9} Complaint dismissed.




MARY EILEEN KILBANE, J.

MELODY J. STEWART, A.J., and
LARRY A. JONES, J., Concur
