State ex rel. Eubank v. McDonald

[Cite as State ex rel. Eubank v. McDonald, 135 Ohio St.3d 186, 2013-Ohio-72.]
THE STATE EX REL. EUBANK, APPELLANT, v. MCDONALD, JUDGE, APPELLEE.
[Cite as State ex rel. Eubank v. McDonald, 135 Ohio St.3d 186, 2013-Ohio-72.]
Mandamus—Writ of mandamus will not issue to compel the performance of a duty
that has already been performed—Court of appeals’ judgment dismissing
petition affirmed.
(No. 2012-1526—Submitted January 9, 2013—Decided January 17, 2013.)
APPEAL from the Court of Appeals for Lucas County,
No. L-12-1143, 2012-Ohio-3728.
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Per Curiam.
{¶ 1} We affirm the judgment dismissing the petition of appellant, James
R. Eubank, for a writ of mandamus to compel appellee, Lucas County Court of
Common Pleas Judge Frederick McDonald, to issue a new sentencing entry that
complies with Crim.R. 32(C). Mandamus will not lie to compel an act that has
already been performed. State ex rel. Culgan v. Kimbler, 132 Ohio St.3d 480,
2012-Ohio-3310, 974 N.E.2d 88. Eubank’s sentencing entry fully complied with
Crim.R. 32(C) and constituted a final, appealable order because it set forth the
fact of his convictions, the sentence, the judge’s signature, and the time stamp
indicating its entry upon the journal by the clerk. See State ex rel. Jones v.
Ansted, 131 Ohio St.3d 125, 2012-Ohio-109, 961 N.E.2d 192, ¶ 2.
Notwithstanding Eubank’s argument to the contrary, Crim.R. 32(C) did not
require Judge McDonald to specify that some of the crimes for which he was
convicted were lesser included offenses of the offenses charged in his indictment.
The judge’s sentencing entry contained a full resolution of the counts for which
Eubank was convicted. 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.
SUPREME COURT OF OHIO
Judgment affirmed.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
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James R. Eubank, pro se.
Julia R. Bates, Lucas County Prosecuting Attorney, and Kevin A. Pituch,
Assistant Prosecuting Attorney, for appellee.
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