State ex rel. Roberts v. Marsh (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Roberts v. Marsh, Slip Opinion No. 2019-Ohio-1569.]
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
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2019-OHIO-1569
THE STATE EX REL. ROBERTS, APPELLANT v. MARSH, JUDGE, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Roberts v. Marsh, Slip Opinion No.
2019-Ohio-1569.]
Mandamus and procedendo—Appellant not entitled to extraordinary relief in
mandamus or procedendo because trial court was permitted to correct
appellant’s sentencing entry by using a judgment entry to vacate improperly
included postrelease-control sanction—Court of appeals’ dismissal
affirmed.
(No. 2018-0593—Submitted February 19, 2019—Decided April 30, 2019.)
APPEAL from the Court of Appeals for Hamilton County, No. C-180086.
________________
Per Curiam.
{¶ 1} Appellant, Mallon Roberts, appeals the judgment of the First District
Court of Appeals dismissing his petition for a writ of mandamus and/or procedendo
SUPREME COURT OF OHIO
against appellee, Hamilton County Common Pleas Court Judge Melba Marsh. We
affirm.
Facts
{¶ 2} Roberts was convicted of murder with a repeat-violent-offender
specification, and in March 2005, a judge of the Hamilton County Common Pleas
Court imposed an indeterminate sentence of 25 years to life in prison. State v.
Roberts, 1st Dist. Hamilton No. C-050279, 2007-Ohio-856, ¶ 1. In 2007, the court
of appeals affirmed the conviction and sentence on direct appeal. Id. at ¶ 16.
{¶ 3} In 2015, Roberts filed a motion in the trial court seeking to “Correct
Judgment Entry Pursuant to Criminal Rule 36.” State v. Roberts, 1st Dist. Hamilton
No. C-150528, 2017-Ohio-1060, ¶ 1. He alleged that his sentence was not entered
“in conformity with the statutes governing repeat violent offenders, indefinite
sentences, jail-time credit, court costs, and postrelease control.” Id. at ¶ 3. Judge
Marsh overruled the motion, and Roberts appealed.
{¶ 4} In March 2017, the court of appeals affirmed, in part, the denial of the
motion to correct the sentencing entry. Id. at ¶ 12. However, it held that postrelease
control could not have been imposed for murder and remanded the matter to the
trial court to vacate the portion of the sentencing entry relating to postrelease
control. Id. at ¶ 13.
{¶ 5} In February 2018, before Judge Marsh had taken any action on
remand, Roberts filed a petition for a writ of procedendo and/or mandamus in the
First District Court of Appeals seeking to compel her to physically convey him to
the common pleas court for a new sentencing hearing. Judge Marsh did not convey
Roberts to the trial court. Rather, on March 9, 2018, she issued an entry vacating
Roberts’s postrelease-control sanction; the entry further noted that “no other aspect
of [the] sentence is affected by this order.”
{¶ 6} After issuing the March 9, 2018 entry, Judge Marsh moved to dismiss
as moot Roberts’s petition for a writ of procedendo and/or mandamus. Over
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January Term, 2019
Roberts’s opposition, the court of appeals granted the motion to dismiss on April
17, 2018. The court of appeals held that the trial court was not required to conduct
a hearing with Roberts present because the case involved the vacation of postrelease
control and not its imposition. Roberts now appeals.
Law and Analysis
{¶ 7} Roberts raises several propositions of law, arguing that Crim.R. 43
requires him to be physically present at a resentencing hearing. Within the
propositions of law, Roberts makes three main arguments: (1) the inclusion of the
postrelease-control sanction rendered the entire sentencing entry void, (2) Judge
Marsh’s judgment entry, which Roberts characterizes as a “nunc pro tunc order,”1
was not the proper vehicle to vacate the postrelease-control provision because it did
not simply correct a clerical or typographical error, and (3) a de novo sentencing
hearing is necessary to make changes to a sentencing entry and he must be
physically returned to open court for resentencing under Crim.R. 43.
Mandamus
{¶ 8} To obtain a writ of mandamus, Roberts must establish a clear legal
right to the requested relief, a clear legal duty on Judge Marsh’s part to provide it,
and the lack of an adequate remedy in the ordinary course of the law. State ex rel.
Waters v. Spaeth, 131 Ohio St. 3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6. The
court of appeals granted Judge Marsh’s motion to dismiss Roberts’s petition as
moot, but it also held that the trial court was not required to conduct an in-person
resentencing hearing in order to vacate the term of postrelease control.
{¶ 9} Roberts relies on cases such as State v. Bezak, 114 Ohio St. 3d 94,
2007-Ohio-3250, 868 N.E.2d 961, modified by State v. Fischer, 128 Ohio St. 3d 92,
2010-Ohio-6238, 942 N.E.2d 332, ¶ 36, and State v. Simpkins, 117 Ohio St. 3d 420,
1
Although Roberts describes Judge Marsh’s March 9, 2018 entry vacating his term of postrelease
control as a “nunc pro tunc order,” Judge Marsh disputes this characterization of the order.
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SUPREME COURT OF OHIO
2008-Ohio-1197, 884 N.E.2d 568, for the proposition that a nunc pro tunc entry
cannot be used to add information that was omitted from the sentencing entry.
Those cases are inapposite, because here the trial court did not add a punishment to
the sentence imposed at Roberts’s trial but instead deleted a punishment—
postrelease control.
{¶ 10} The fact that Judge Marsh deleted a punishment distinguishes this
case from cases in which punishment was added; in the latter situation, trial courts
must hold a de novo resentencing hearing on the additional portion of the sentence.
Fischer at paragraph two of the syllabus; see, e.g., State v. Harris, 132 Ohio St. 3d
318, 2012-Ohio-1908, 972 N.E.2d 509, paragraph one of the syllabus (failure to
include mandatory driver’s license suspension requires resentencing on the license
suspension only); State v. Moore, 135 Ohio St. 3d 151, 2012-Ohio-5479, 985
N.E.2d 432, syllabus (failure to include a mandatory fine requires resentencing on
the imposition of the fine only). The failure to impose mandatory postrelease
control does not render the entire sentence void. Fischer at ¶ 26. Only the portion
of the sentence missing the sanction is void, and that portion of the sentencing entry
is subject to correction in a sentencing hearing limited to the issue of postrelease
control. Id. at ¶ 27-29.
{¶ 11} But no resentencing hearing was required in the situation here,
because the trial court simply deleted a postrelease-control provision that should
not have been included in the initial sentence entry. See State ex rel. Allen v.
Goulding, __ Ohio St.3d __, 2019-Ohio-858, __ N.E.3d __, ¶ 8-9; see also State v.
Ortiz, 2016-Ohio-4813, 68 N.E.3d 188, ¶ 13 (7th Dist.) (trial court could properly
delete an erroneous reference to postrelease control by a nunc pro tunc entry); State
v. Brister, 5th Dist. Guernsey No. 13 CA 21, 2013-Ohio-5874, ¶ 19 (same).
Procedendo
{¶ 12} A writ of procedendo is appropriate when a court has either “refused
to enter judgment or has unnecessarily delayed proceeding to judgment.” State ex
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January Term, 2019
rel. Poulton v. Cottrill, 147 Ohio St. 3d 402, 2016-Ohio-5789, 66 N.E.3d 716, ¶ 2.
Thus, the writ will issue only upon a showing of a “clear legal right to require the
trial court to proceed, a clear legal duty on the part of the trial court to proceed, and
the lack of an adequate remedy in the ordinary course of the law.” State ex rel.
Ward v. Reed, 141 Ohio St. 3d 50, 2014-Ohio-4512, 21 N.E.3d 303, ¶ 9.
{¶ 13} Here, Roberts sought a writ of procedendo to require Judge Marsh
to convey him back to the Hamilton County Court of Common Pleas for a de novo
resentencing hearing. In her March 2018 entry, Judge Marsh vacated the
postrelease control, thereby implicitly denying Roberts’s request to be resentenced
in open court. As held above, Roberts does not have a clear legal right to be
conveyed to court for resentencing, so he does not have a clear legal right to require
Judge Marsh to issue such an order.
{¶ 14} For these reasons, we affirm the court of appeals’ judgment
dismissing the requested writs of mandamus and procedendo.
Judgment affirmed.
O’CONNOR, C.J., and KENNEDY, FRENCH, DONNELLY, and STEWART, JJ.,
concur.
DEWINE, J., concurs in judgment only.
FISCHER, J., not participating.
________________
Mallon Roberts, pro se.
Joseph Deters, Hamilton County Prosecuting Attorney, and Scott M.
Heenan, Assistant Prosecuting Attorney, for appellee.
_________________
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