State ex rel. Viceroy v. Strickland-Saffold

[Cite as State ex rel. Viceroy v. Strickland-Saffold, 2011-Ohio-3077.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96594
STATE OF OHIO, EX REL.,
PETER VICEROY
RELATOR
vs.
JUDGE SHIRLEY STRICKLAND-SAFFOLD
Court of Common Pleas
RESPONDENT
JUDGMENT:
WRIT DENIED
Writ of Procedendo
Motion No. 444225
Order No. 445531
RELEASE DATE: June 22, 2011
-i-
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FOR RELATOR
Peter Viceroy, 303-314
RiCI
1001 Olivesburg Rd.
P. O. Box 8107
Mansfield, Ohio 44901-8107
FOR RESPONDENT
William D. Mason
Cuyahoga County Prosecutor
James E. Moss
Assistant Prosecuting Attorney
The Justice Center, 8 Floor
ht
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, P.J.:
{¶ 1} Relator, Peter Viceroy, is the defendant in State v. Viceroy, Cuyahoga Cty. Court
of Common Pleas Case No. CR-315048, which has been assigned to respondent judge. The
grand jury issued a one-count indictment for felonious assault with a firearm specification and a
violence specification. After trial to a jury, respondent sentenced Viceroy to three years on
the firearm specification and three to fifteen years for felonious assault. This court affirmed.
State v. Viceroy (May 9, 1996), Cuyahoga App. No. 68890.
{¶ 2} In 2010, Viceroy filed an original action in procedendo in this court to compel
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respondent to issue a final order in Case No. CR-315048. This court granted the writ and
stated: “Accordingly, this court grants the writ of procedendo and orders the respondent to
issue a final, appealable order in the underlying case which complies with Crim.R. 32(C) and
which corrects the various defects and errors in the original sentencing journal entry, including
a clear statement that the jury found Peter Viceroy guilty of the firearm specification and a
resolution of the violence specification, which could be a dismissal or a nolle.” State ex rel.
Viceroy v. Strickland Saffold, Cuyahoga App. No. 95623, 2011-Ohio-5563, ¶7.
{¶ 3} Respondent issued a new sentencing entry in response to Case No. 95623 which
states, in part: “On a former day a jury found defendant Peter Viceroy guilty of felonious
assault in violation of R.C. 2903.11 with a firearm specification (specification one) as charged
in the indictment. The violence specification (specification two) has been dismissed.
Defendant Peter Viceroy is sentenced * * * for a term of (3) three years (mandatory) on the
firearm specification to be served prior to and consective [sic] with the sentence of (3) three
years to (15) fifteen years on the felonious assault charge.” Case No. CR-315048, December
7, 2010 Entry (“resentencing entry”). Viceroy has not appealed the resentencing entry.
{¶ 4} Viceroy contends that the resentencing entry is not a final appealable order. He
requests this court to compel respondent to issue a final order. For the reasons stated below,
we grant respondent’s motion for summary judgment, deny Viceroy’s cross-motion for
summary judgment and deny relief in procedendo.
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{¶ 5} The criteria for relief in procedendo are well-established. The relator must
demonstrate: (1) a clear legal right to proceed in the underlying matter; and (2) the lack of an
adequate remedy in the ordinary course of the law. See, e.g., State ex rel. Charvat v. Frye,
114 Ohio St.3d 76, 2007-Ohio-2882, 868 N.E.2d 270, at ¶13.
{¶ 6} In Viceroy’s first action in procedendo, Case No. 95623, this court instructed
respondent to issue a sentencing entry which complies with Crim.R. 32(C) and State v. Baker,
119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163. The resentencing entry: states the
means of conviction; disposes of all counts and specifications; imposes sentence on the count
and specification which resulted in a finding of guilt; imposes sentence; and is both signed by
the judge and journalized by the clerk. Given the limited portions of the record available to
this court in this original action, we must conclude that the resentencing entry complies with
Crim.R. 32(C) and Baker and is a final appealable order.
{¶ 7} Viceroy has or had a right to appeal the resentencing entry. See, e.g., State ex
rel. Wright v. Cuyahoga Cty. Court of Common Pleas, Cuyahoga App. No. 96397,
2011-Ohio-2159. His concerns about the scope of the resentencing entry — that is, disposing
of the violence specification without a hearing — could be addressed to this court in the
exercise of its appellate jurisdiction. Regardless, in Viceroy’s first action in procedendo, Case
No. 95623, respondent was not instructed to hold a hearing but to issue a final appealable order.
Viceroy, supra, ¶7.
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{¶ 8} As a consequence, we must conclude that Viceroy does not have a clear legal
right to proceed in the underlying case for the purpose of requiring respondent to issue a new
sentencing entry. Likewise, Viceroy has or had an adequate remedy in the ordinary course of
the law by way of appeal.
{¶ 9} Accordingly, respondent’s motion for summary judgment is granted and relator’s
cross-motion for summary judgment is denied. Relator to pay costs. The clerk is directed to
serve upon the parties notice of this judgment and its date of entry upon the journal. Civ.R.
58(B).
Writ denied.
PATRICIA ANN BLACKMON, PRESIDING JUDGE
LARRY A. JONES, J., and
SEAN C. GALLAGHER, J., CONCUR