State ex rel. White v. Aveni , 2022 Ohio 1755 ( 2022 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. White v. Aveni, Slip Opinion No. 2022-Ohio-1755.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
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the opinion is published.
THE STATE EX REL. WHITE, APPELLANT, v. AVENI, JUDGE, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. White v. Aveni, Slip Opinion No.
2022-Ohio-1755.]
Mandamus—Procedendo—Despite its error in construing complaint for writs of
mandamus and/or procedendo, court of appeals correctly dismissed the
complaint, because complainant had an adequate remedy in the ordinary
course of the law—Judgment affirmed.
(No. 2021-1206—Submitted March 8, 2022—Decided June 1, 2022.)
APPEAL from the Court of Appeals for Franklin County,
No. 21AP-103, 2021-Ohio-3159.
__________________
Per Curiam.
{¶ 1} Appellant, Marcus D. White, appeals the Tenth District Court of
Appeals’ dismissal of his complaint for writs of mandamus and/or procedendo
against respondent, Franklin County Common Pleas Court Judge Carl A. Aveni II.
We affirm.
SUPREME COURT OF OHIO
Background
{¶ 2} In 2003, White was the subject of a three-count criminal indictment
in the Franklin County Court of Common Pleas. State v. White, 10th Dist. Franklin
No. 05AP-1178, 2006-Ohio-4226, ¶ 5. Count One charged White with aggravated
murder with firearm specifications for causing the death of Debra Green. Id. Count
Two charged him with attempted murder with a firearm specification for attempting
to cause the death of Tamica Spraggins. The state dismissed the third count during
trial. Id.{¶ 3} In May 2005, a jury found White not guilty of aggravated murder
under Count One but guilty of the lesser included offense of felony murder. Id. As
to Count Two, the jury found White not guilty of attempted murder but guilty of
the lesser included offense of felonious assault. Id. The jury returned findings of
guilt on all the firearm specifications. Id. The trial court sentenced White to an
aggregate prison term of 25 years to life. Id.{¶ 4} The Tenth District affirmed White’s convictions but remanded the
case to the trial court for resentencing. Id. at ¶ 35. In 2006, the trial court issued a
new sentencing entry. White appealed from the new sentencing entry, but the court
of appeals affirmed the trial court’s judgment. State v. White, 10th Dist. Franklin
No. 07AP-743, 2008-Ohio-701, ¶ 2.
{¶ 5} Thereafter, White filed a complaint for writs of mandamus and/or
prohibition, claiming that he was entitled to a new sentencing entry because, among
other reasons, the 2006 sentencing entry did not identify the felony underlying his
felony-murder conviction. State ex rel. White v. Woods, 10th Dist. Franklin No.
17AP-620, 2018-Ohio-2954, ¶ 5. The court of appeals dismissed the complaint, id.
at ¶ 13, and we affirmed, State ex rel. White v. Woods, 156 Ohio St.3d 562, 2019-
Ohio-1893, 130 N.E.3d 271, ¶ 1.
{¶ 6} In 2019, White filed a motion in the trial court asking it to correct an
alleged clerical error in the sentencing entry. State v. White, 10th Dist. Franklin
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January Term, 2022
No. 20AP-287, 2021-Ohio-588, ¶ 3. He argued that the sentencing entry indicated
that he had been convicted of murder in violation of “R.C. 2903.02” and that it
should have specified that he was convicted of felony murder under R.C.
2903.02(B). Id. The trial court granted the motion and issued a nunc pro tunc
sentencing entry in April 2020. White appealed from that sentencing entry,
asserting that he should have received a new sentencing hearing before the trial
court corrected the older sentencing entry. Id. at ¶ 5. The court of appeals held that
the nunc pro tunc entry was not a final, appealable order and dismissed White’s
appeal on that basis. Id. at ¶ 9.
{¶ 7} In March 2021, White commenced the present action for writs of
mandamus and/or procedendo in the Tenth District. White alleged that the 2020
sentencing entry did not dispose of any charge for the felonious-assault of Green,
which was, he asserted, the felony underlying his felony-murder conviction. He
requested a writ compelling Judge Aveni to issue a new sentencing entry disposing
of “each and every offense for which there is a conviction, i.e., ‘Felonious Assault
to wit Ms. Green.’ ”
{¶ 8} The magistrate issued a decision recommending that the court of
appeals grant Judge Aveni’s motion to dismiss. The magistrate concluded that
White’s complaint did not state a claim upon which relief could be granted and that,
in any event, the complaint was barred by res judicata and the law-of-the-case
doctrine. White filed objections to the magistrate’s decision.
{¶ 9} The court of appeals overruled White’s objections, adopted the
magistrate’s decision, and dismissed the complaint under Civ.R. 12(B)(6). 2021-
Ohio-3159, ¶ 5. White timely appealed to this court.
Legal analysis
{¶ 10} This court reviews dismissals under Civ.R. 12(B)(6) de novo. State
ex rel. McKinney v. Schmenk, 152 Ohio St.3d 70, 2017-Ohio-9183, 92 N.E.3d 871,
¶ 8. “A motion to dismiss for failure to state a claim upon which relief can be granted
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SUPREME COURT OF OHIO
tests the sufficiency of the complaint.” Volbers-Klarich v. Middletown Mgt., Inc.,
125 Ohio St.3d 494, 2010-Ohio-2057, 929 N.E.2d 434, ¶ 11. “Dismissal of a
complaint for failure to state a claim upon which relief can be granted is appropriate
if, after all factual allegations of the complaint are presumed true and all reasonable
inferences are made in relator’s favor, it appears beyond doubt that relator can prove
no set of facts warranting relief.” Clark v. Connor, 82 Ohio St.3d 309, 311, 695
N.E.2d 751 (1998).
{¶ 11} To be entitled to a writ of mandamus, the relator must establish by
clear and convincing evidence (1) a clear legal right to the requested relief, (2) a
clear legal duty on the part of the respondent to provide it, and (3) the lack of an
adequate remedy in the ordinary course of the law. State ex rel. Love v. O’Donnell,
150 Ohio St.3d 378, 2017-Ohio-5659, 81 N.E.3d 1250, ¶ 3. A writ of procedendo
will issue when a court has refused to enter judgment or has unnecessarily delayed
proceeding to judgment. State ex rel. Culgan v. Collier, 35 Ohio St.3d 436, 2013-
Ohio-1762, 988 N.E.2d 564, ¶ 7. To be entitled to a writ of procedendo, White
must establish (1) a clear legal right to require the judge to proceed, (2) a clear legal
duty on the part of the judge to proceed, and (3) the absence of an adequate remedy
in the ordinary course of the law. See State ex rel. Ames v. Pokorny, 164 Ohio St.3d
538, 2021-Ohio-2070, 173 N.E.3d 1208, ¶ 6.
{¶ 12} The Tenth District misconstrued White’s claim. According to the
magistrate, White alleged that the trial court “ha[d] failed to enter a judgment of
conviction and sentence that properly disposes of Count Two of the indictment.”
(Emphasis added.) Specifically, the magistrate said that White “appears to find a
defect in the 2006 sentencing entry * * * in that the disposition of Count Two,
felonious assault in violation of R.C. 2903.11, does not (unlike the indictment)
mention the victim by name.”
{¶ 13} White has not challenged the disposition of Count Two, which
involves the felonious assault of Spraggins. Instead, his theory is as follows: Under
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January Term, 2022
Count One, he was convicted of felony murder. The trial court instructed the jury
that the predicate felony for the felony-murder charge was the felonious assault of
Green (which is separate from Count Two’s charge for the felonious assault of
Spraggins). But the sentencing entry does dispose of any separate charge of
felonious assault regarding Green. White argues that he is entitled to a new
sentencing entry that disposes of that predicate felony to the felony-murder charge
under Count One.
{¶ 14} Because the Tenth District misconstrued White’s claim, its analysis
of whether White’s complaint states a valid cause of action is necessarily flawed.
However, we will “not reverse a correct judgment merely because erroneous
reasons were given for it.” State ex rel. Neguse v. McIntosh, 161 Ohio St.3d 125,
2020-Ohio-3533, 161 N.E.3d 571, ¶ 10. And although the court of appeals
misunderstood White’s claim, it correctly dismissed the complaint.
{¶ 15} As a general rule, a writ of mandamus will not issue when the relator
has or had an adequate remedy in the ordinary course of the law. See, e.g., State ex
rel. Sands v. Culotta, 165 Ohio St.3d 172, 2021-Ohio-1137, 176 N.E.3d 735, ¶ 12.
White asserts that he does not have an adequate remedy, because, having failed to
dispose of all the charges, the sentencing entries are not final, appealable orders. But
White did have an adequate remedy that he could have pursued: he could have filed
a motion for a new sentencing entry in the trial court, and the court’s denial of that
motion (if it were to deny it) would be a final, appealable order. See State ex rel.
Simmons v. Breaux, 160 Ohio St.3d 223, 2020-Ohio-3251, 155 N.E.3d 857, ¶ 12.
Because White had an adequate remedy in the ordinary course of the law, neither
mandamus nor procedendo will lie.
Conclusion
{¶ 16} For the reasons stated above, we affirm the court of appeals’
dismissal of White’s complaint.
Judgment affirmed.
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SUPREME COURT OF OHIO
O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART,
and BRUNNER, JJ., concur.
_________________
Marcus D. White, pro se.
G. Gary Tyack, Franklin County Prosecuting Attorney, Jeanine A.
Hummer, First Assistant Prosecuting Attorney, and Andrea C. Hofer, Assistant
Prosecuting Attorney, for appellee.
_________________
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