State ex rel. Barr v. Sutula

2012 Ohio 500

• Court: Ohio Court of Appeals
• Decided: February 6, 2012
• Docket: 97456
• Status: Published

Opinion

[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.