State ex rel. Gregley v. Friedman (Slip Opinion) , 145 Ohio St. 3d 279 ( 2014 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State ex rel. Gregley v. Friedman, Slip Opinion No. 2014-Ohio-4796.]
NOTICE
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65 South Front Street, Columbus, Ohio 43215, of any typographical or
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made before the opinion is published.
SLIP OPINION NO. 2014-OHIO-4796
THE STATE EX REL. GREGLEY, APPELLANT, v. FRIEDMAN, JUDGE, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Gregley v. Friedman,
Slip Opinion No. 2014-Ohio-4796.]
Procedendo—Res judicata—Postrelease control—Court of appeals’ denial of writ
affirmed.
(No. 2014-0289—Submitted July 8, 2014—Decided November 4, 2014.)
APPEAL from the Court of Appeals for Cuyahoga County, No. CA 13 100601,
2014-Ohio-218.
_____________________
Per Curiam.
{¶ 1} We affirm the Cuyahoga County Court of Appeals’ judgment
denying a writ of procedendo to compel a trial judge to resentence appellant,
Duane Gregley. The action is barred by res judicata and is moot, and appellant’s
arguments in favor of the writ are wrong on the merits.
Facts
{¶ 2} In 1998, Gregley was found guilty by a jury of two counts of
aggravated murder, with firearm and mass-murder specifications, one count of
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attempted aggravated murder with a firearm specification, one count of carrying a
concealed weapon, and one count of having a weapon while under a disability
with a firearm specification. He was sentenced to life without parole for the two
aggravated-murder convictions and to nine years for the attempted-aggravated-
murder conviction, all to be served consecutively to each other. He was also
sentenced to one year for each of the remaining convictions, to be served
concurrently with each other and with the first aggravated-murder sentence, and
to three years for each firearm specification, to be served concurrently with each
other. Postrelease control was not specifically imposed at the sentencing hearing
or in the sentencing entry.
{¶ 3} Gregley’s convictions were affirmed on appeal. State v. Gregley,
8th Dist. Cuyahoga No. 75032, 1999 WL 1204872 (Dec. 16, 1999). We denied a
motion to file a delayed appeal. 88 Ohio St. 3d 1514, 728 N.E.2d 402 (2000).
Gregley also filed an application to reopen that was denied by the court of
appeals. 8th Dist. Cuyahoga No. 75032, 2000 WL 1610106 (Oct. 18, 2000).
{¶ 4} In January 2011, Gregley filed a complaint for a writ of
procedendo asking the court of appeals to compel Judge Stuart Friedman to
resentence him based on the improper imposition of postrelease control at
sentencing. Judge Friedman filed a motion for summary judgment that the court
of appeals granted on the basis that Gregley had had an adequate remedy by way
of appeal to raise the postrelease-control issue. State ex rel. Gregley v. Friedman,
8th Dist. Cuyahoga No. 96255, 2011-Ohio-2293, ¶ 11. We granted a motion to
dismiss Gregley’s appeal. 130 Ohio St. 3d 1473, 2011-Ohio-6124, 957 N.E.2d
1166.
{¶ 5} Nevertheless, in October 2011, the trial court appointed counsel to
represent Gregley, imposed five years of mandatory postrelease control for the
attempted-aggravated-murder conviction and up to three years for the weapons-
under-a-disability conviction.
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January Term, 2014
{¶ 6} Gregley then appealed the imposition of postrelease control. The
court of appeals reversed and remanded because Gregley had completed his
sentences for attempted aggravated murder and having weapons under a
disability, and thus the trial court did not have authority to impose postrelease
control for those convictions. State v. Gregley, 8th Dist. Cuyahoga No. 97469,
2012-Ohio-3450, ¶ 12. We refused further appeal. 134 Ohio St. 3d 1421, 2013-
Ohio-158, 981 N.E.2d 886.
{¶ 7} On remand, the trial court, after noting that Gregley’s convictions
had been affirmed, vacated the order imposing postrelease control, to comply with
the court of appeals’ mandate.
{¶ 8} In November 2013, Gregley filed a second complaint for a writ of
procedendo in the court of appeals, asking that court to order appellee, Judge
Friedman, to issue a final, appealable order in his underlying criminal case.
Gregley argued that his original sentencing entry was void because postrelease
control had not been imposed. The court of appeals denied the writ on a motion
for summary judgment filed by Judge Friedman, on the ground that the petition
was barred by res judicata. 8th Dist. Cuyahoga No. 100601, 2014-Ohio-218, ¶ 6.
{¶ 9} Gregley appealed to this court.
Analysis
{¶ 10} We affirm because the petition for a writ of procedendo is barred
by res judicata, the case is moot, and Gregley’s arguments are wrong on the
merits.
{¶ 11} As held by the court of appeals, the petition is barred by res
judicata because Gregley challenged the failure to impose postrelease control, and
the imposition of postrelease control, by both direct appeal and collateral attack,
and the 2011 order imposing postrelease control was reversed.
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{¶ 12} Moreover, the action is moot because the imposition of postrelease
control in the original sentence was vacated by the trial court after the court of
appeals reversed that judgment.
{¶ 13} And finally, as also pointed out by the court of appeals, Gregley
misreads the case law on postrelease control. Gregley relies almost exclusively
on State ex rel. Carnail v. McCormick, 126 Ohio St. 3d 124, 2010-Ohio-2671, 931
N.E.2d 110, for the proposition that his entire sentence is void and should be
vacated because of the defect regarding the imposition of postrelease control.
However, we have rejected an argument that an entire sentence is void because of
an error in imposing postrelease control, holding that only the offending portion
of the sentence is subject to review. State v. Fischer, 128 Ohio St. 3d 92, 2010-
Ohio-6238, 942 N.E.2d 332, ¶ 38-39.
{¶ 14} We affirm.
Judgment affirmed.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
_____________________
Duane Gregley, pro se.
Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and James
E. Moss, Assistant Prosecuting Attorney, for appellee.
_____________________
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