[Cite as State ex rel. Harper v. Lucas Cty. Common Pleas Court, 2017-Ohio-614.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


State of Ohio, ex rel. William Harper                      Court of Appeals No. L-16-1236

        Relator

v.

Lucas County Common Pleas Court
and Judge Stacy Cook                                       DECISION AND JUDGMENT

        Respondents                                        Decided: February 21, 2017

                                                 *****

        William Harper, pro se.

                                                 *****

        JENSEN, P.J.

        {¶ 1} In this original action, relator William Harper seeks a writ of mandamus and

a writ of procedendo compelling the respondents to issue a final and appealable order in

his criminal case (case No. G-4801-CR-0201402871.) The respondents are the Lucas

County Court of Common Pleas and Judge Stacy Cook.

        {¶ 2} Because we find that relator is not entitled to either writ, we dismiss the

complaint.
                                      Procedural History

          {¶ 3} On October 26, 2014, relator was indicted on two counts. Count 1 was

attempt to commit murder, a violation of R.C. 2923.02 and 2903.02, a felony of the first

degree, with a three-year firearm specification in violation of R.C. 2941.145. Count 2

was felonious assault, a violation of R.C. 2903.11(A)(2), a felony of the second degree,

with a three-year firearm specification in violation of R.C. 2941.145.

          {¶ 4} The parties reached a plea agreement whereby relator pled guilty to

attempted murder, with a one-year firearm specification. In exchange, the state agreed

not to prosecute relator as to Count 2.

          {¶ 5} The trial court sentenced relator on March 23, 2015. The sentencing order

states,

                 The Court finds on February 27, 2015 the defendant entered a plea

          of guilty and was found guilty by the Court of Count 1. * * * It is

          ORDERED that defendant serve a term of 10 years in prison. An

          additional term is imposed as a mandatory and consecutive term pursuant to

          R.C. 2929.14(C)(1)(a) of 1 year for a total of 11 years in prison. * * *

          Pursuant to the request of the State of Ohio a nolle prosequi is entered as to

          Count 2.

          {¶ 6} After sentencing, relator filed a motion to correct his sentence with

the trial court. Relator claimed that the March 23, 2015 judgment entry was not a

final, appealable order because the court failed to enter a “nolle prosequi” as to the




2.
firearm specification attached to Count 2. Relator demanded a new hearing and to

be resentenced.

        {¶ 7} The state responded.1 It argued that any error by the trial court could

be corrected by issuing a nunc pro tunc order. On December 9, 2015, the trial

court ruled on the motion and included the following “clarification”:

               JUDGMENT ENTRY

               Upon due consideration of the motion of relator, therefore, the Court

        finds said motion well-taken only as to clarification, and shall issue a nunc

        pro tunc sentencing entry by separate entry, clarifying that the nolle

        prosequi as to Count 2 necessarily included dismissal of the attached

        firearm specification. The nunc pro tunc entry shall be retroactive, and date

        back to the original sentencing entry of March 23, 2015. As to the

        remaining relief requested by defendant, the Court finds the motion not

        well-taken and DENIED.

        {¶ 8} Relator filed the instant action with the court of appeals on October 24,

2016.




1
 Relator attached his motion and the state’s response to his complaint in the instant case.
Several pages of the state’s response, and all of the attachments thereto, however, were
missing.




3.
                                    Law and Analysis

       {¶ 9} 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, 6 Ohio St.3d 28, 451 N.E.2d 225 (1983).

       {¶ 10} The Supreme Court of Ohio has outlined the necessary requirements for an

order to be a final and appealable order in a criminal case:

              A judgment of conviction is a final order subject to appeal under

       R.C. 2505.02 when it sets forth (1) the fact of the conviction, (2) the

       sentence, (3) the judge’s signature, and (4) the time stamp indicating the

       entry upon the journal by the clerk. State v. Lester, 130 Ohio St.3d 303,

       2011-Ohio-5204, 958 N.E.2d 142, paragraph one of the syllabus.

       {¶ 11} In this case, the trial court’s March 23, 2015 sentencing entry contains

(1) the manner of conviction, which was by way of a plea agreement, (2) the sentence of

ten years on Count 1 plus an additional one year for the gun specification, (3) the

signature of the judge, and (4) the time stamp indicating the entry was entered on the

clerk’s journal. Because the entry contained all of the requirements to be a final,

appealable order, we find that the order was final and appealable.

       {¶ 12} Relator argues, however, that the firearm specification attached to Count 2

“remains pending” and that its absence from the March 23, 2015 sentencing order

prevents it from being a final and appealable.




4.
       {¶ 13} Relator is incorrect. As noted by the trial court, the Supreme Court of Ohio

has ruled on this precise issue. It has held “to be final and appealable, [a] sentencing

entry [does] not need to contain a disposition concerning specifications that [the

defendant] was charged with but was not convicted of.” State ex rel. Duncan v.

DeWeese, 132 Ohio St.3d 525, 2012-Ohio-3835, 974 N.E.2d 1197, ¶ 2 (Affirming

dismissal of defendant’s mandamus petition to compel trial judge to issue a new

sentencing entry).

       {¶ 14} Therefore, because the specification was dismissed at the time of the

original sentencing, relator has failed to show that he has a clear, legal right to the relief

requested. Accordingly, we deny his request for a writ of mandamus.

       {¶ 15} To be entitled to a writ of procedendo, “a relator must establish a clear

legal right to require the court to proceed, a clear legal duty on the part of the court to

proceed, and the lack of an adequate remedy in the ordinary course of law.” State ex rel.

Sherrills v. Cuyahoga Cty. Court of Common Pleas, 72 Ohio St.3d 461, 462, 650 N.E.2d

899 (1995). “The writ of procedendo is merely an order from a court of superior

jurisdiction to one of inferior jurisdiction to proceed to judgment. It does not in any case

attempt to control the inferior court as to what that judgment should be.” State ex rel.

Davey v. Owen, 133 Ohio St. 96, 106, 12 N.E.2d 144 (1937).

       {¶ 16} In support of his case, relator states,

              [His] sole Claim for writ of procedendo is to compel [the trial court],

       after correcting the errors highlighted in this complaint, to bring [relator’s]




5.
       Case to full and final disposition of all counts and specifications. If this

       results in a de novo sentencing hearing, then [relator] asks this Court to

       compel respondent to provide him with one and with a final appealable

       order in compliance with Crim.R. 32(C).

       {¶ 17} For the reasons already discussed, relator is not entitled to be resentenced

or to a hearing. Accordingly, we deny his request for a writ of procedendo.

       {¶ 18} Relator’s complaint for writs of mandamus and procedendo is dismissed at

relator’s costs.

       {¶ 19} To the clerk:

       {¶ 20} The clerk is directed to serve upon all parties, within three days, a copy of

this decision in a manner prescribed by Civ.R. 5(B).


                                                                                Writs denied.



Arlene Singer, J.                                _______________________________
                                                             JUDGE
Thomas J. Osowik, J.
                                                 _______________________________
James D. Jensen, P.J.                                        JUDGE
CONCUR.
                                                 _______________________________
                                                             JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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