Court of Appeals of Ohio, Eighth District, Cuyahoga
STATE OF OHIO, EX REL. CHARLES LOCKE RELATOR
JUDGE CAROLYN FRIEDLAND RESPONDENT
Mandamus Motion No. 511580 Order No. 513501
RELATOR Charles Locke, pro se.
ATTORNEYS FOR RESPONDENT Michael C. O'Malley Cuyahoga
County Prosecutor By: James E. Moss Assistant County
JOURNAL ENTRY AND OPINION
J. STEWART, JUDGE.
The relator, Charles Locke, commenced this mandamus action
against the respondent, Judge Carolyn Friedland, to compel
her to "resentence" him and issue a new sentencing
journal entry. The respondent judge has moved for summary
judgment on multiple grounds, including that Locke had an
adequate remedy of law by way of appeal, thereby precluding
the extraordinary writ of mandamus. For the following
reasons, this court grants respondent's motion for
summary judgment and denies Locke's application for a
writ of mandamus.
Procedural History and Facts
In Cuyahoga C.P. No. CR-14-587262-A, Locke pleaded guilty to
two counts of unlawful sexual conduct with a minor, five
counts of pandering sexually oriented matter involving a
minor, and possessing criminal tools. The trial court
subsequently sentenced him to a total prison term of 19 years
and 6 months. Locke appealed. This court ultimately vacated
the imposition of consecutive sentences on the grounds that
the trial court failed to make the necessary findings and
further remanded the matter to the trial court for a limited
resentencing hearing. See State v. Locke, 8th Dist.
Cuyahoga No. 102371, 2015-Ohio-3349.
On remand, in December 2015, the trial court resentenced
Locke to a total prison term of ten years. The journal entry
was journalized on December 18, 2015, memorializing both
Locke's conviction and sentence. Locke did not appeal.
On October 3, 2017, Locke filed a petition for writ of
mandamus, asking this court to order the respondent to
resentence him for purposes of obtaining a final appealable
order. According to Locke, the respondent must fulfill the
following three duties that it had omitted at the time of
resentencing: (1) advise him of his right to appeal under
Crim.R. 32(B); (2) comply with Crim.R. 11(C) prior to
accepting his plea; and (3) issue a single journal entry that
complies with Crim.R. 32(C). Respondent moved for summary
judgment on the grounds that Locke has not established that
he has a clear legal right to the relief requested and that
an adequate remedy of law through an appeal precludes the
writ. Locke subsequently filed a reply, reiterating his same
arguments that "no final appealable order exists"
and that the respondent "had a clear legal duty to make
the required findings of guilt" at his resentencing
hearing and to advise him of his right to appeal.
To be entitled to a writ of mandamus, Locke must establish a
clear legal right to the requested relief, a clear legal duty
on the part of Judge Friedland to provide it, and the lack of
an adequate remedy in the ordinary course of the law.
State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55,
2012-Ohio-69, 960 N.E.2d 452, ¶ 6. Locke must prove that
he is entitled to the writ by clear and convincing evidence.
Id. at ¶ 13.
Mandamus is not a substitute for appeal. State ex rel
Daggett v. Gessaman, 34 Ohio St.2d 55, 295 N.E.2d 659
(1973); and State ex rel. Pressley v. Indus. Comm. of
Ohio, 11 Ohio St.2d 141, 228 N.E.2d 631 (1967),
paragraph three of the syllabus. Thus, mandamus does not lie
to correct errors and procedural irregularities in the course
of a case. State ex rel. Thompson v. Saffold, 8th
Dist. Cuyahoga No. 102061, 2015-Ohio-321, ¶ 6. Moreover,
mandamus is an extraordinary remedy that is to be exercised
with caution and only when the right is clear. It should not
issue in doubtful cases. State ex rel. Taylor v.
Glasser, 50 Ohio St.2d 165, 364 N.E.2d 1 (1977).
Locke's claim for mandamus does not lie in this case.
Contrary to Locke's assertion, the December 18, 2015
journal entry is a final order that fully complies with
Crim.R. 32(C). "A judgment of conviction is a final
order subject to appeal under R.C. 2505.02 when it sets forth
(1) the fact of the conviction, (2) the sentence, (3) the
judge's signature, and (4) the time stamp indicating the
entry upon the journal by the clerk." State v.
Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d
142, paragraph one of the syllabus; see also Crim.R.
32(C). The 2015 sentencing journal entry included all of the
required elements and resolved all of the charges. Thus, it
was a final, appealable order.
Further, Crim.R. 32(C) - specifying the content of a judgment
- does not require that the trial court memorialize the
Crim.R. 32(B) notification of the right to appeal in the
sentencing entry. State ex rel. Wright v. Cuyahoga Cty.
Court, 8th Dist. Cuyahoga No. 96397, 2011-Ohio-2159,
¶ 2. This court has consistently recognized that no duty
exists under Crim.R. 32 to state in a resentencing journal
entry that the defendant was advised of his right to appeal.
Id; State ex rel. Steele v. Gall, 8th Dist. Cuyahoga
No. 102683, 2015-Ohio-2164, ¶ 4. Locke's reliance on
this court's decision in State v. Hunter, 8th
Dist. Cuyahoga No. 92626, 2010-Ohio-657, in support of his
original action is misplaced. In Hunter, this court
held in a direct appeal that the trial court's failure to
inform defendant during resentencing of the right to appeal
was error. For purposes of this original action, however,