State ex rel. Barr v. Sutula

[Cite as State ex rel. Barr v. Sutula, 2012-Ohio-500.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97456
STATE OF OHIO, EX REL.,
HARRY M. BARR
RELATOR
vs.
JUDGE JOHN D. SUTULA
RESPONDENT
JUDGMENT:
COMPLAINT DISMISSED
Writ of Mandamus
Motion No. 449284
Order No. 451856
RELEASE DATE: February 6, 2012
Harry M. Barr, pro se
Inmate No. 522-149
Mansfield Correctional Instit.
P. O. Box 788
Mansfield, OH 44901
ATTORNEYS FOR RESPONDENT
William D. Mason
Cuyahoga County Prosecutor
By: James E. Moss
Assistant County Prosecutor
1200 Ontario Street, 9th Fl.
Cleveland, OH 44113
MELODY J. STEWART, J.:
{¶ 1} Relator, Harry M. Barr, is the defendant in State v. Barr, Cuyahoga Cty.
Court of Common Pleas Case No. CR-480727, that has been assigned to respondent
judge. The case was tried to the court and Barr was convicted. This court affirmed his
conviction. State v. Barr, 8th Dist. No. 89740, 2008-Ohio-2176, appeal dismissed, 119
Ohio St.3d 1502, 2008-Ohio-5467, 895 N.E.2d 565.
{¶ 2} Barr contends that the sentencing entry issued by respondent does not
reflect the court’s finding stated during his “verdict hearing.” He requests that this court
issue a writ of mandamus compelling respondent to correct the error in the sentencing
entry.
{¶ 3} Barr observes that respondent stated during the “verdict hearing”: “In
regards [sic] to Count 2, robbery, * * * , in violation of Revised Code Section 2911.02,
the Court will find the Defendant guilty.” Tr. at 120. In a February 6, 2007 sentencing
entry, respondent “found the defendant guilty of robbery 2911.02 - F2 * * * .”
{¶ 4} Barr relies on R.C. 2945.75(A) which provides, in part: “When the presence
of one or more additional elements makes an offense one of more serious degree: ***
(2) A guilty verdict shall state either the degree of the offense of which the offender is
found guilty, or that such additional element or elements are present. Otherwise, a guilty
verdict constitutes a finding of guilty of the least degree of the offense charged.” Barr
contends that, because the sentencing entry violates R.C. 2945.75, he is entitled to relief
in mandamus.
{¶ 5} In State ex rel. Barr v. Sutula, 8th Dist. No. 94530, 2010-Ohio-926, aff’d
126 Ohio St.3d 193, 2010-Ohio-3213, 931 N.E.2d 1078, Barr argued that the February 6,
2007 sentencing entry was not a final appealable order. This court and the Supreme
Court both held that the sentencing entry was a final appealable order.
{¶ 6} If a sentencing entry is a final appealable order, the defendant has an
adequate remedy by way of appeal to raise claimed sentencing errors. State ex rel.
Cunningham v. Lindeman, 126 Ohio St.3d 481, 2010-Ohio-4388, 935 N.E.2d 393. See
also State ex rel. Jones v. Ansted, __ Ohio St.3d __, 2012-Ohio-109, __ N.E.2d __.
Because Barr has or had an adequate remedy by way of appeal to assign any claimed
errors, relief in mandamus is not appropriate.
{¶ 7} Accordingly, respondent’s motion to dismiss is granted. 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).
Complaint dismissed.
MELODY J. STEWART, PRESIDING JUDGE
KENNETH A. ROCCO, J., AND
EILEEN A. GALLAGHER, J., CONCUR.