State ex rel. Carter v. Saffold

[Cite as State ex rel. Carter v. Saffold, 2013-Ohio-5596.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100322
STATE OF OHIO EX REL.,
JIMMY CARTER
RELATOR
vs.
JUDGE SHIRLEY STRICKLAND SAFFOLD
RESPONDENT
JUDGMENT:
WRIT DENIED
Writ of Mandamus and/or Procedendo
Motion No. 468653
Order No. 469722
RELEASED DATE: December 17, 2013
FOR RELATOR
Jimmy Carter, pro se
Inmate No. 541-011
Lorain Correctional Institution
2075 South Avon Belden Road
Grafton, Ohio 44044
ATTORNEYS FOR RESPONDENT
Timothy J. McGinty
Cuyahoga County Prosecutor
By: James E. Moss
Assistant County Prosecutor
9th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:
{¶1} Jimmy Carter has filed a complaint for a writ of mandamus and/or
procedendo. Carter seeks an order that compels Judge Shirley Strickland Saffold “to
issue a final judgment of conviction, which must be compliant with State v. Baker, 119
Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, and Crim.R. 32” in State v. Carter,
Cuyahoga C.P. No. CR-501137. Judge Saffold has filed a motion for summary
judgment, which we grant for the following reasons.
{¶2} On December 7, 2007, a jury in case no. CR-501137 found Carter guilty of
attempted kidnaping (R.C. 2923.02 and 2905.01(A)(2)) with a sexual motivation
specification (R.C. 2941.147), a sexually violent predator specification (R.C. 2971.01),
notices of prior conviction (R.C. 2929.13(F)), and repeat violent offender specifications
(R.C. 2941.149) (Count 1), attempted kidnaping (R.C. 2923.02/R.C. 2905.01(B)(1))
with a sexual motivation specification (R.C. 2941.147), a sexually violent predator
specification (R.C. 2971.01), notices of prior conviction (R.C. 2929.13(F)), and repeat
violent offender specifications (R.C. 2941.149) (Count 2), and one count of criminal child
enticement (R.C. 2905.05(A)(1)) (Count 4). The jury found Carter not guilty of the
offense of possessing criminal tools (R.C. 2923.24(A) (Count 3)).
{¶3} On January 22, 2009, this court affirmed Carter’s conviction for the offenses
of attempted kidnaping (Count 1) and criminal child enticement (Count 4), but vacated
the conviction for attempted kidnaping (Count 2) because it was structurally defective.
See State v. Carter, 8th Dist. Cuyahoga No. 90796, 2009-Ohio-226. On October 14,
2009, Judge Saffold dismissed Count 2 of the indictment. On August 29, 2013, Carter
filed his complaint for a writ of mandamus/procedendo seeking to compel Judge Saffold
to issue a new sentencing entry that fully complies with Crim.R. 32.
{¶4} Carter, through his complaint for mandamus/procedendo, argues that the
original sentencing entry, journalized on December 11, 2007, did not comply with
Crim.R. 32, and thus did not constitute a final, appealable order because Judge Saffold
failed to address each and every specification associated with Count 1. In addition,
Carter argues that the journal entry of October 1, 2009, which dismissed Count 2 of the
indictment, did not comply with Crim.R. 32 and the holding of State v. Baker, supra,
because it did not include the fact of Carter’s conviction and the sentence imposed by
Judge Saffold.
{¶5} The journal entry of December 11, 2007, constituted a final, appealable order
because it set forth the fact of Carter’s conviction, the sentence, the judge’s signature, and
the time stamp indicating the entry upon the journal by the clerk. State v. Lester, 130
Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142. In addition, the failure to address and
sentence with regard to any specifications does not render a sentencing entry a non-final,
non-appealable order. The failure of a trial court to address a specification constitutes a
sentencing error that must be addressed upon appeal. State ex rel. Jones v. Ansted, 131
Ohio St.3d 125, 2012-Ohio-109, 961 N.E.2d 192; State ex rel. Cunningham v. Lindeman,
126 Ohio St.3d 481, 2010-Ohio-4388, 935 N.E.2d 393. Finally, a trial court is not
required to state the means of exoneration in the sentencing entry. State ex rel. Davis v.
Cuyahoga Cty. Court of Common Pleas, 127 Ohio St.3d 29, 2010-Ohio-4728, 936 N.E.2d
41; State ex rel. Agosto v. Gallagher, 8th Dist. Cuyahoga No. 96670, 2011-Ohio-4514;
State v. Robinson, 8th Dist. Cuyahoga No. 90731, 2008-Ohio-5580. Thus, Carter has
failed to establish that he is entitled to a writ of mandamus and/or procedendo in this
attempt to force Judge Saffold to issue a new sentencing entry that complies with Crim.R.
32.
{¶6} Accordingly, this court grants Judge Saffold’s motion for summary judgment
and denies the writ. Costs assessed to Carter. The court directs the clerk of court 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
MELODY J. STEWART, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR