State ex rel. Womack v. Marsh , 128 Ohio St. 3d 303 ( 2011 )

[Cite as State ex rel. Womack v. Marsh, 128 Ohio St. 3d 303, 2011-Ohio-229.]
THE STATE EX REL. WOMACK, APPELLANT, v. MARSH, JUDGE, APPELLEE.
[Cite as State ex rel. Womack v. Marsh, 128 Ohio St. 3d 303, 2011-Ohio-229.]
Mandamus — Writ sought to compel common pleas court judge to rule on motion
for resentencing — Claim rendered moot after motion was denied —
Court of appeals’ dismissal of petition for writ affirmed.
(No. 2010-1157 — Submitted January 4, 2011 — Decided January 25, 2011.)
APPEAL from the Court of Appeals for Hamilton County, No. C-100287.
_____________________
Per Curiam.
{¶ 1} This is an appeal from a judgment entered by the court of appeals
dismissing the petition of appellant, James E. Womack, for a writ of mandamus to
compel appellee, Hamilton County Court of Common Pleas Judge Melba D.
Marsh, to rule on his motions for resentencing, vacate his judgment of conviction
and sentence, conduct a new sentencing hearing, and issue a new judgment.
Because Womack’s petition failed to state a claim upon which the requested
extraordinary relief in mandamus can be granted, we affirm the judgment of the
court of appeals.
Facts
{¶ 2} After a jury trial, Womack was convicted of four counts of robbery
in violation of R.C. 2911.02(A)(3), which is a felony of the third degree. See
R.C. 2911.02(B). At his sentencing hearing, the trial court notified Womack that
he was subject to a mandatory term of three years of postrelease control. R.C.
2967.28(B)(3). In the June 13, 2006 sentencing entry, however, the court
mistakenly referred to the robbery convictions as felonies of the first degree and
imposed a mandatory postrelease-control term of five years instead of three
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years.1 The court also sentenced Womack to an aggregate prison term of 20
years. Womack appealed, the court of appeals affirmed his convictions, and this
court did not accept his further appeal for review. See State v. Womack, 115 Ohio
St.3d 1413, 2007-Ohio-4884, 873 N.E.2d 1317.
{¶ 3} On June 8, 2009, Womack filed a motion in the common pleas
court for resentencing pursuant to State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-
856, 845 N.E.2d 470, in which we held that certain sentencing statutes were
unconstitutional because they required judicial fact-finding before imposition of
consecutive sentences. On December 1, 2009, Womack filed a motion in the
common pleas court for resentencing due to the error in imposing postrelease
control.
{¶ 4} On May 3, 2010, Womack filed a petition in the Court of Appeals
for Hamilton County for a writ of mandamus to compel Judge Marsh to rule on
his motions for resentencing. Womack also requested that Judge Marsh be
compelled to vacate his convictions and sentence, conduct a new sentencing
hearing, and issue a new judgment. Four days later, Judge Marsh denied
Womack’s motions and determined that he was not entitled to a new sentencing
hearing. Nevertheless, Judge Marsh corrected Womack’s sentencing entry to
specify that he was subject to three years, not five years, of mandatory postrelease
control:
{¶ 5} “The court further finds that the defendant is correct that the
mandatory term of post-release control is three years as opposed to the five years
originally ordered by this Court. Therefore, it is the order of this Court that, as
the defendant is well aware, he shall be subject to three years of post-release
control.”
1
Judge Ralph Winkler entered the judgment. Judge Marsh succeeded Judge Winkler as the judge
presiding over the criminal case.
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January Term, 2011
{¶ 6} Judge Marsh then moved to dismiss Womack’s mandamus petition
because his claim was rendered moot by her ruling. The court of appeals granted
the judge’s motion and dismissed the petition.
{¶ 7} This cause is now before the court upon Womack’s appeal as of
right.
Legal Analysis
Mandamus
{¶ 8} Womack asserts that the court of appeals erred in dismissing his
mandamus petition. “A court can dismiss a mandamus action under Civ.R.
12(B)(6) for failure to state a claim upon which relief can be granted if, after all
factual allegations of the complaint are presumed true and all reasonable
inferences are made in the relator’s favor, it appears beyond doubt that he can
prove no set of facts entitling him to the requested writ of mandamus.” State ex
rel. Russell v. Thornton, 111 Ohio St. 3d 409, 2006-Ohio-5858, 856 N.E.2d 966, ¶
9. The court of appeals could take judicial notice of the entry attached to Judge
Marsh’s motion to dismiss in support of her claim that the entry rendered
Womack’s mandamus claim moot without converting the motion to a motion for
summary judgment. State ex rel. Everhart v. McIntosh, 115 Ohio St. 3d 195,
2007-Ohio-4798, 874 N.E.2d 516, ¶ 10.
{¶ 9} To be entitled to the writ, Womack must establish a clear legal
right to the requested relief, a corresponding clear legal duty on the part of Judge
Marsh to provide it, and the lack of an adequate remedy in the ordinary course of
the law. State ex rel. Husted v. Brunner, 123 Ohio St. 3d 288, 2009-Ohio-5327,
915 N.E.2d 1215, ¶ 8.
Ruling on Motions for Resentencing
{¶ 10} The court of appeals properly dismissed Womack’s petition to
compel Judge Marsh to rule on his motions for resentencing once the judge had
ruled on the motions. “Mandamus will not compel the performance of an act that
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has already been performed.” State ex rel. Dehler v. Kelly, 123 Ohio St. 3d 297,
2009-Ohio-5259, 915 N.E.2d 1223, ¶ 1.
Vacation of Convictions, New Sentencing Hearing,
and New Judgment Entry
{¶ 11} Nevertheless, Womack’s petition also requested that Judge Marsh
vacate his convictions, conduct a new sentencing hearing, and issue a new
sentencing entry. Although in his petition he requested this relief based on both
the error in imposing postrelease control and Foster, his appeal is limited to his
contentions concerning postrelease control.
{¶ 12} To be sure, Womack is correct that if a trial court refuses to issue a
new sentencing entry that includes the appropriate term of postrelease control, a
party can generally compel the trial court to do so by filing an action for a writ of
mandamus or a writ of procedendo. See State ex rel. Carnail v. McCormick, 126
Ohio St. 3d 124, 2010-Ohio-2671, 931 N.E.2d 110. We have also held, in general,
that “[f]or criminal sentences imposed prior to July 11, 2006, in which a trial
court failed to properly impose postrelease control, trial courts shall conduct a de
novo sentencing hearing in accordance with decisions of the Supreme Court of
Ohio.” State v. Singleton, 124 Ohio St. 3d 173, 2009-Ohio-6434, 920 N.E.2d 958,
paragraph one of the syllabus.
{¶ 13} Judge Marsh has now corrected Womack’s original sentencing
entry to reflect the appropriate three-year term of mandatory postrelease control,
which is what the trial court had properly imposed at Womack’s sentencing
hearing. No new sentencing hearing is required, because the trial court’s failure
to include the postrelease-control term in the original sentencing entry was
manifestly a clerical error. It appears that this error arose from the trial court’s
mistaken designation of Womack’s robbery convictions as felonies of the first
degree instead of felonies of the third degree. R.C. 2911.02(A)(3) and
2911.02(B). Although trial courts generally lack authority to reconsider their own
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January Term, 2011
valid final judgments in criminal cases, they retain continuing jurisdiction to
correct clerical errors in judgments by nunc pro tunc entry to reflect what the
court actually decided. State ex rel. Cruzado v. Zaleski, 111 Ohio St. 3d 353,
2006-Ohio-5795, 856 N.E.2d 263, ¶ 18-19; Crim.R. 36 (“Clerical mistakes in
judgments, orders, or other parts of the record, and errors in the record arising
from oversight or omission, may be corrected by the court at any time”).
{¶ 14} Because appellant was notified of the proper term of postrelease
control at his sentencing hearing and the error was merely clerical in nature, Judge
Marsh was authorized to correct the mistake by nunc pro tunc entry2 without
holding a new sentencing hearing. Cf. Cruzado at ¶ 20, fn. 1 (error in postrelease
control in sentencing entry was not treated as a clerical error by the judge when he
held a sentencing hearing before entering the new sentencing order).
{¶ 15} Finally, the nunc pro tunc entry related back to Womack’s original
sentencing entry so that neither Crim.R. 32(C) nor State v. Baker, 119 Ohio St. 3d
197, 2008-Ohio-3330, 893 N.E.2d 163, syllabus, has been violated. See State v.
Harrison, Butler App. Nos. CA2009-10-272 and CA2010-01-019, 2010-Ohio-
2709, ¶ 24, citing State v. Battle, Summit App. No. 23404, 2007-Ohio-2475, ¶ 6
(“generally, [a] nunc pro tunc entry relates back to the date of the journal entry it
corrects”); State v. Yeaples, 180 Ohio App. 3d 720, 2009-Ohio-184, 907 N.E.2d
333, ¶ 15 (“A nunc pro tunc entry is the procedure used to correct clerical errors
in a judgment entry, but the entry does not extend the time within which to file an
appeal, as it relates back to the original judgment entry”).
Conclusion
{¶ 16} Based on the foregoing, Womack is not entitled to the requested
extraordinary relief in mandamus. Therefore, we affirm the judgment of the court
of appeals dismissing Womack’s mandamus petition.
2
Although Judge Marsh did not specify that the entry was a nunc pro tunc entry, we conclude that
it had the same effect.
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Judgment affirmed.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
_____________________
James E. Womack, pro se.
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E.
Adams, Assistant Prosecuting Attorney, for appellee.
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