OPINIONS OF THE SUPREME COURT OF OHIO
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The State ex rel. Martinelli, Appellant, v. Corrigan, Judge,
Appellee.
[Cite as State ex rel. Martinelli v. Corrigan (1994),
Ohio St.3d       .]
Mandamus to compel judge to enter a ruling on motion to correct
     the record -- Complaint dismissed, when.
     (No. 93-2002 -- Submitted December 7, 1993 -- Decided
February 23, 1994.)
     Appeal from the Court of Appeals for Cuyahoga County, No.
65678.
     In 1982, the Cuyahoga County Court of Common Pleas entered
a judgment of conviction and sentence upon a jury verdict
finding Joseph P. Martinelli, appellant, guilty of murder.
Judge Daniel O. Corrigan, appellee, was the presiding judge in
appellant's murder trial. The Cuyahoga County Court of Appeals
susequently affirmed the common pleas court's judgment. State
v. Martinelli (Mar. 17, 1983), Cuyahoga App. No. 45148,
unreported. On June 3, 1993, appellant filed an application
for delayed reconsideration pursuant to App.R. 26 and State v.
Murnahan (1992), 

, 

,1 in the
Cuyahoga County Court of Appeals. On the same date, relator
filed a motion in the Cuyahoga County Court of Common Pleas to
correct the record in his 1982 murder trial pursuant to Crim.R.
36.
     On June 9, 1993, appellant filed a complaint for a writ of
mandamus in the Cuyahoga County Court of Appeals to compel
appellee to enter a ruling on his June 3, 1993 motion to
correct the record. Appellee filed a "Brief in Opposition to
Petition for Writ of Mandamus," which both appellant and the
court of appeals treated as a Civ.R. 12(B)(6) motion to dismiss
for failure to state a claim upon which relief can be granted.
Appellant filed a motion for summary judgment. On August 25,
1993, the court of appeals overruled appellant's motion and
granted appellee's motion, dismissing appellant's complaint for
extraordinary relief.
     The cause is before this court upon an appeal as of right.

     Joseph P. Martinelli, pro se.
     Stephanie Tubbs Jones, Cuyahoga County Prosecuting
Attorney, and Laurence R. Snyder, Assistant Prosecuting
Attorney, for appellee.

     Per Curiam. Appellant contends that the court of appeals
erred in dismissing his complaint for a writ of mandamus. In
order to be entitled to a writ of mandamus, a relator must
establish (1) that he/she has a clear legal right to the relief
prayed for, (2) that respondents are under a clear legal duty
to perform the act, and (3) that relator has no plain and
adequate remedy in the ordinary course of law. State ex rel.
Manson v. Morris (1993), 

, 

. Generally, Civ.R. 12(B)(6) motions attack the
sufficiency of the complaint and may not be used to summarily
review the merits of a cause of action in mandamus. State ex
rel. Horwitz v. Cuyahoga Cty. Court of Common Pleas, Probate
Div. (1992), 

, 

.
Nevertheless, on independent review of the merits, for the
reason that follows, we agree with the court of appeals that
appellant was not entitled to mandamus relief as a matter of
law. Cf., e.g., State ex rel. Cheren v. Akron Chief of Police
(1993), 

, 6 OBR 225, 

.
     In State ex rel. Willis v. Sheboy (1983), 

, 6 OBR 225, 

, we noted at paragraph two of
the syllabus:
     "The function of mandamus is to compel the performance of
a present existing duty as to which there is a default. It is
not granted to take effect prospectively, and it contemplates
the performance of an act which is incumbent on the respondent
when the application for a writ is made." See, also, State ex
rel. Krejci v. N. Royalton Civ. Serv. Comm. (1985), 

, 17 OBR 284, 285, 

.
     At the time appellant's complaint for a writ of mandamus
was filed in the court of appeals, only six days had elapsed
from the date he filed his motion to correct the record in
appellee's court. Appellant cited both below and before this
court Associated Estates Corp. v. Fellows (1983), 

, 11 OBR 166, 

, which held that when an
appellate court must resolve factual disputes about the trial
court's record, mandamus is the sole appropriate remedy.
However, in Associated Estates Corp., the trial court had
refused to adopt the defendant's proposed App.R. 9(C) statement
of evidence. Mandamus or procedendo may be appropriate to
compel a trial court to correct alleged errors in the record if
the trial court refuses to act. See, generally, Whiteside,
Ohio Appellate Practice (1993) 60, T 4.07(D); cf. Konigsberg v.
Lamports Co. (1927), 

, 

;
Blecher v. Blecher (Jan. 31, 1980), Cuyahoga App. No. 39662,
unreported.
     In the case sub judice, the common pleas court had not
refused to rule on appellant's motion to correct the record at
the time appellant filed his complaint in the court of appeals
seeking a writ of mandamus. We agree with the court of appeals
that appellant does not have a clear legal right and appellee
possesses no clear legal duty to rule on appellee's motion to
correct the record within one week of the date it was filed.
     Accordingly, the judgment of the court of appeals is
affirmed.
                                    Judgment affirmed.
     Moyer, C.J., A.W. Sweeney, Douglas, Wright, Resnick, F.E.
Sweeney and Pfeifer, JJ., concur.

FOOTNOTE
1    By an amendment to App.R. 26 effective July 1, 1993,
Murnahan motions are now designated as applications for
reopening.