State ex rel. Duncan v. DeWeese

2012 Ohio 1800

Opinion

[Cite as State ex rel. Duncan v. DeWeese, 2012-Ohio-1800.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, ex rel. ROY SHANE JUDGES: DUNCAN Hon. W. Scott Gwin, P. J. Hon. Sheila G. Farmer, J. Relator Hon. John W. Wise, J.

-vs- Case No. 11 CA 102

JUDGE JAMES DeWEESE OPINION Respondent

CHARACTER OF PROCEEDING: Writ of Mandamus

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: April 23, 2012

APPEARANCES:

For Relator For Respondent

ROY SHANE DUNCAN, PRO SE JILL M. COCHRAN N.C.C.I. ASSISTANT PROSECUTOR Post Office Box 1812 38 South Park Street, 2nd Floor Marion, Ohio 43301-1812 Mansfield, Ohio 44902 Richland County, Case No. 11 CA 102 2

Wise, J.

{¶1} Relator, Roy Duncan, has filed a Petition for Writ of Mandamus requesting

this Court to order Respondent to resentence Relator. Respondent has filed a Motion to

Dismiss for failure to state a claim upon which relief may be granted.

{¶2} Relator avers the trial court is required to issue a new sentencing entry

because the original order issued by the trial court was not a final, appealable order.

Relator raises two reasons in support of his claim. First, he argues the order was not

final because it did not contain a disposition of OVI specifications. Second, the order

did not contain a specific amount of restitution.

{¶3} For a writ of mandamus to issue, the relator must have a clear legal right

to the relief prayed for, the respondent must be under a clear legal duty to perform the

requested act, and relator must have no plain and adequate remedy in the ordinary

course of law. State, ex rel. Berger, v. McMonagle (1983), 6 Ohio St.3d 28, 6 OBR 50,

451 N.E.2d 225.

{¶4} In the underlying case, the State suggests the OVI specifications were

dismissed by the trial court prior to trial. Relator in turn argues the dismissal was not

reduced to a judgment entry. It is undisputed that the jury did not receive the issue of

the specifications to consider. It is also undisputed that Relator was not convicted of the

specifications.

{¶5} The Supreme Court has explained, “[O]ur holding in State v. Baker, 119

Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, syllabus, ‘requires a full resolution of

those counts for which there were convictions. It does not require a reiteration of those

counts and specifications for which there were no convictions, but were resolved in Richland County, Case No. 11 CA 102 3

other ways, such as dismissals, nolled counts, or not guilty findings.’ (Emphasis

added.)” State ex rel. Davis v. Cuyahoga Cty. Court of Common Pleas 127 Ohio St.3d

29, 30, 936 N.E.2d 41 (Ohio,2010).

{¶6} Because the sentencing order already appealed by Relator contains all of

the required elements pursuant to Crim.R. 32 and provides a full resolution of all counts

for which there were convictions, we find the order was a final, appealable order. For

this reason, Relator has already obtained the relief he seeks, i.e. a final, appealable

order, making the request for writ of mandamus moot.

{¶7} Relator also argues the order entered by the trial court is not final and

appealable because the issue of restitution was not finalized. In an effort to resolve this

issue, Relator filed a motion in the trial court relative to restitution. In response, the trial

court issued an order dated October 13, 2011 wherein the trial court ruled,

Regarding restitution, the [sentencing] entry orders payment “for

medical expenses to Kathy Ward, Richard Miller or providers.” The state

has offered no evidence at sentencing or since sentencing that the victims

see payment of any such restitution. A trial court has no statutory

authority to reconsider or modify the amount of restitution after the

defendant’s sentence is journalized. It is therefore ordered:

1. The defendant has no monetary restitution in this case.

{¶8} We find the trial court’s order eliminating restitution makes Relator’s

argument moot. Restitution is no longer an issue. For this reason, the order being

appealed was a final, appealable order relative to all other portions of Relator’s

sentence. Richland County, Case No. 11 CA 102 4

{¶9} Relator has failed to establish the necessary elements to warrant the

issuance of the extraordinary writ of mandamus. For this reason, the cause of action is

dismissed for failure to state a claim upon which relief may be granted.

By: Wise, J.

Gwin, P. J., and

Farmer, J. concur.

___________________________________

JUDGES

JWW/as/d 0309 Richland County, Case No. 11 CA 102 5

IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, ex rel., : ROY SHANE DUNCAN : : Relator : : -vs- : JUDGMENT ENTRY : JUDGE JAMES DeWEESE : : Respondent : Case No. 11 CA 102

For the reasons stated in our accompanying Memorandum-Opinion, the writ of

mandamus is found to be moot and is dismissed for failure to state a claim upon which

relief may be granted. Costs to Relator.