State ex rel. Scheck v. Collier ( 2011 )

[Cite as State ex rel. Scheck v. Collier, 128 Ohio St. 3d 316, 2011-Ohio-233.]
THE STATE EX REL. SCHECK, APPELLANT, v. COLLIER, JUDGE, APPELLEE.
[Cite as State ex rel. Scheck v. Collier, 128 Ohio St. 3d 316, 2011-Ohio-233.]
Mandamus — Demand for new sentencing hearing to properly impose postrelease
control — Remedy is through ordinary course of law — Judgment
affirmed.
(No. 2010-1569 — Submitted January 19, 2011 — Decided January 26, 2011.)
APPEAL from the Court of Appeals for Medina County, No. 09CA0081-M.
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Per Curiam.
{¶ 1} We affirm the judgment of the court of appeals dismissing the
petition of appellant, Michael Scheck, for a writ of mandamus to compel appellee,
Medina County Court of Common Pleas Judge Christopher J. Collier, to conduct
a new sentencing hearing and to thereafter issue a new sentencing entry that
corrects errors in the original sentencing entry, which Scheck claims did not
comply with Crim.R. 32(C) and did not properly impose postrelease control.
“[T]he remedy for a failure to comply with Crim.R. 32(C) is a revised sentencing
entry rather than a new hearing.” State ex rel. Alicea v. Krichbaum, 126 Ohio
St.3d 194, 2010-Ohio-3234, 931 N.E.2d 1079, ¶ 2. And any error regarding the
failure to hold a sentencing hearing before issuing a nunc pro tunc entry imposing
postrelease control could be remedied in the ordinary course of law by appeal.
See State ex rel. Davis v. Cuyahoga Cty. Court of Common Pleas, 127 Ohio St. 3d
29, 2010-Ohio-4728, 936 N.E.2d 41, ¶ 2 (“the erroneous inclusion of postrelease
control in Davis’s original sentencing entry constituted mere error for which he
had an adequate remedy in the ordinary course of law by way of appeal”); State
ex rel. Pruitt v. Cuyahoga Cty. Court of Common Pleas, 125 Ohio St. 3d 402,
2010-Ohio-1808, 928 N.E.2d 722, ¶ 4 (sentencing entry containing language that
SUPREME COURT OF OHIO
postrelease control was part of sentence afforded sufficient notice to the defendant
so that he could raise any claimed errors on appeal rather than by extraordinary
writ).1
Judgment affirmed.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
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Michael Scheck, pro se.
Dean Holman, Medina County Prosecuting Attorney, and Russell A.
Hopkins, Assistant Prosecuting Attorney, for appellee.
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1
We deny appellee’s motion to strike Scheck’s initial merit brief, because the motion was
rendered moot by the timely filing of Scheck’s amended merit brief.
2