State ex rel. Ellis v. Burnside , 2017 Ohio 658 ( 2017 )

[Cite as State ex rel. Ellis v. Burnside, 2017-Ohio-658.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105120
STATE OF OHIO, EX REL.
LDDARYL ELLIS
RELATOR
vs.
THE HONORABLE JUDGE JANET R. BURNSIDE
RESPONDENT
JUDGMENT:
WRIT DENIED
Writ of Mandamus
Motion No. 502292
Order No. 503728
RELEASE DATE: February 22, 2017
FOR RELATOR
Lddaryl Ellis, pro se
Inmate No. A641-151
Trumbull Correctional Institution
P.O. Box 901
Leavittsburg, Ohio 44430
ATTORNEYS FOR RESPONDENT
Michael C. O’Malley
Cuyahoga County Prosecutor
By: James E. Moss
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:
{¶1} Lddaryl Ellis has filed a complaint for a writ of mandamus through which
he seeks an order that requires Judge Janet R. Burnside to conduct a resentencing hearing
in State v. Ellis, Cuyahoga C.P. No. CR-12-568532. Ellis argues that resentencing is
mandated because Judge Burnside failed to impose postrelease control with regard to
Count 9 (felonious assault — R.C. 2903.11(A)(2)) and Count 14 (aggravated riot — R.C.
2917.02(A)(2)). Judge Burnside has filed a motion for summary judgment that is
granted for the following reasons.
{¶2} The Supreme Court of Ohio, in State v. Qualls, 131 Ohio St.3d 499,
2012-Ohio-1111, 967 N.E.2d 718, established that a trial court is permitted, through a
nunc pro nunc entry, to correct the original sentencing entry so long as postrelease control
was properly imposed at the sentencing hearing.
But when the notification of postrelease control was properly given at the
sentencing hearing, the essential purpose of notice has been fulfilled and
there is no need for a new sentencing hearing to remedy the flaw. The
original sentencing entry can be corrected to reflect what actually took place
at the sentencing hearing, through a nunc pro tunc entry, as long as the
correction is accomplished prior to the defendant’s completion of his prison
term.
(Emphasis added.) Id. at ¶ 24.
{¶3} Attached to Judge Burnside’s motion for summary judgment is a copy of
the transcript of the sentencing hearing, held on April 12, 2013, which demonstrates that
Ellis was informed that postrelease control was applicable to Count 9 and also notified of
the possible penalty involved for violation of postrelease control. (Tr. 730, exhibit E.)
{¶4} In addition, attached to Judge Burnside’s motion for summary judgment is a
copy of a nunc pro tunc sentencing journal entry, journalized on November 29, 2016,
which demonstrates that postrelease control was imposed upon Ellis with regard to Count
9 in the corrected sentencing entry. (Exhibit D.) Ellis’s request for a writ of
mandamus is moot. Relief is unwarranted because mandamus will not compel the
performance of a duty that has already been performed. State ex rel. Hopson v.
Cuyahoga Cty. Court of Common Pleas, 135 Ohio St.3d 456, 2013-Ohio-1911, 989
N.E.2d 49.
{¶5} It must also be noted that this court, in State v. Ellis, 8th Dist. Cuyahoga No.
99830, 2014-Ohio-116, reversed Ellis’s conviction and sentence in part and remanded the
appeal to vacate the conviction for Count 14. Upon remand and resentencing, Ellis’s
conviction for Count 14 was vacated. (Exhibit B.) Because no sentence exists with
regard to Count 14, Judge Burnside possesses no duty to inform Ellis of the possibility of
postrelease control with regard to Count 14.
{¶6} Accordingly, we grant Judge Burnside’s motion for summary judgment.
Costs to Ellis. The court directs the clerk of courts to serve all parties with notice of this
judgment and the date of entry upon the journal as required by Civ.R. 58(B).
{¶7} Writ denied.
PATRICIA ANN BLACKMON, JUDGE
MARY EILEEN KILBANE, P.J., and
EILEEN T. GALLAGHER, J., CONCUR