State ex rel. Allen v. Goulding (Slip Opinion)
State ex rel. Allen v. Goulding (Slip Opinion)
Opinion
*337 {¶ 1} We affirm the Sixth District Court of Appeals' judgment sua sponte dismissing the petition of appellant, Ronald S. Allen Jr., for a writ of mandamus.
Facts
{¶ 2}
In 1997, Allen was convicted of murder and was sentenced to 15 years to life in prison. In 2011, Allen filed a motion in the trial court to correct the sentencing entry, arguing that the court had failed to state the manner in which he was convicted and had erroneously imposed postrelease control for a murder conviction. The trial court granted the motion in part and entered a nunc pro tunc entry including the manner of conviction and removing the postrelease-control sanction.
State v. Allen
, Lucas Cty. C.P. No. CR 97-2581 (Mar. 11, 2011). Allen appealed to the Sixth District Court of Appeals, arguing that the sentencing
*1106
entry still did not include the manner of conviction.
State v. Allen
, 6th Dist. Lucas No. L-11-1077,
{¶ 3}
On August 24, 2011, the trial court issued another nunc pro tunc sentencing entry that included the manner of conviction and omitted the postrelease-control sanction. Although the original sentencing hearing occurred on October 31, 1997, the nunc pro tunc entry incorrectly stated that it occurred on August 23, 2011. The court of appeals affirmed.
{¶ 4}
In 2018, Allen filed an original action for a writ of mandamus in the Sixth District Court of Appeals to compel appellee, Lucas County Common Pleas Judge Michael Goulding, to issue a corrected ruling on Allen's motion for a final,
*338
appealable order. The court of appeals sua sponte dismissed the petition, holding that the trial court had properly filed a nunc pro tunc entry to correct the Crim.R. 32(C) error of omitting the manner of conviction.
Legal Analysis
{¶ 5}
We affirm the court of appeals' judgment. To be entitled to a writ of mandamus, Allen must show a clear legal right to the requested relief, a clear legal duty on Judge Goulding's part to provide it, and the lack of an adequate remedy in the ordinary course of the law.
State ex rel. Waters v. Spaeth
,
{¶ 6}
A court "may dismiss a complaint sua sponte and without notice when the complaint is frivolous or the claimant obviously cannot prevail on the facts alleged in the complaint."
State ex rel. Brooks v. O'Malley
,
{¶ 7} In his first proposition of law, Allen argues that the trial court erred in imposing postrelease control for a murder conviction. To the extent Allen is challenging the August 24, 2011 nunc pro tunc entry, that entry does not provide for postrelease control. The trial court had removed that language in a prior nunc pro tunc entry. Thus, Allen appears to be arguing that the inclusion of the postrelease-control provision in the 1997 sentencing entry rendered that entry void and therefore that all subsequent corrections to the original sentencing entry were also void. Allen contends that he is entitled to a de novo sentencing hearing in open court.
{¶ 8}
Allen relies on
State v. Beasley,
*1107 Simpkins at ¶ 6. Those cases are inapposite, because here the trial court did not *339 add a punishment to Allen's sentence but deleted a punishment-postrelease control.
{¶ 9}
The fact that a punishment was deleted distinguishes this case from cases in which punishment was
added
, an act that necessitates a de novo resentencing hearing on the additional portion of the sentence.
State v. Bezak,
{¶ 10} In his second proposition of law, Allen argues that the trial court's inclusion of the wrong date in the August 2011 nunc pro tunc entry is not merely a clerical error but is a sentencing error that requires a de novo hearing. In response, Judge Goulding argues that the trial court has continuing jurisdiction to correct clerical errors in judgments and that an error in a date may be corrected by means of a nunc pro tunc entry.
{¶ 11}
Allen cites no law to support his argument that the inclusion of the wrong date is a sentencing error rather than simply a clerical error subject to correction under Crim.R. 36. Contrary to Allen's claims, an incorrect date is a clerical error because it is a mistake " 'apparent on the record, which does not involve a legal decision or judgment.' "
State ex rel. Cruzado v. Zaleski
,
{¶ 12} For the foregoing reasons, we hold that the court of appeals did not abuse its discretion when it sua sponte dismissed Allen's petition for a writ of mandamus. We affirm its judgment.
Judgment affirmed.
O'Connor, C.J., and French, Fischer, Donnelly, and Stewart, JJ., concur.
Kennedy, J., concurs in judgment only, with an opinion joined by DeWine, J.
Kennedy, J., concurring in judgment only.
{¶ 13} Because Ronald Allen's mandamus action seeking to compel the trial court to issue a final, appealable order in his criminal case is barred by res *340 judicata, I would not reach the merits of his claims. For this reason, I concur in judgment only.
{¶ 14}
In 1997, the trial court sentenced Allen to 15 years to life in prison for murder, and the Sixth District Court of Appeals affirmed on direct appeal.
State v. Allen
, 6th Dist. Lucas No. L-97-1444,
{¶ 15}
In 2011, the trial court granted Allen's motion to correct his sentencing entry to include the manner of conviction but denied his request to remove a notice regarding postrelease control (the notice was superfluous because postrelease control did not attach to his murder conviction,
see
former R.C. 2929.19, Am.Sub.H.B. No. 180, 146 Ohio Laws, Part II, 2560, 2593-2594). Allen appealed, and the appellate court remanded the case for the trial court to enter a judgment of conviction that comports with
*1108
State v. Baker
,
{¶ 16}
Allen did not appeal to this court, and the court of appeals' decision that a final, appealable order had been issued is final.
State ex rel. LTV Steel Co. v. Gwin
,
{¶ 17}
Nonetheless, Allen has filed various collateral attacks on his conviction and sentence.
State v. Allen
, 6th Dist. Lucas No. L-15-1191,
{¶ 18} And in this mandamus action filed in the Sixth District Court of Appeals, Allen sought "a corrected ruling" on his motion for a final, appealable order that complies with Baker . The court of appeals denied the writ.
{¶ 19} On appeal to this court, Allen reiterates his claim that he has never received a final, appealable order. The majority confronts his argument on the merits. That analysis is unnecessary and advisory, however, because Allen's action is barred by the doctrine of res judicata.
{¶ 20}
Our recent decision in
State ex rel. Peoples v. Johnson
,
{¶ 21}
"We have routinely held that extraordinary writs may not be used as a substitute for an otherwise barred second appeal or to gain successive appellate reviews of the same issue."
LTV Steel Co.
,
{¶ 22} Accordingly, the court of appeals properly denied the request for a writ to compel "a corrected ruling" on a prior motion for a final, appealable order, and I concur in affirming that judgment.
DeWine, J., concurs in the foregoing opinion.
Reference
- Full Case Name
- The STATE EX REL. ALLEN, Appellant, v. GOULDING, Judge, Appellee.
- Cited By
- 13 cases
- Status
- Published
- Syllabus
- Mandamus—Relator's failure to show a clear legal right to the requested relief precludes issuance of a writ of mandamus—The inclusion of an incorrect date in a sentencing entry is a clerical error, not an error in sentencing—Inclusion of a clause improperly imposing postrelease control in a sentencing entry, which was deleted in a nunc pro tunc, entry, does not render sentencing entry void—Dismissal of petition for writ affirmed.