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State ex rel. White v. Woods

Court of Appeals of Ohio, Tenth District

July 26, 2018

State of Ohio ex rel. Marcus D. White, Relator,
v.
Judge William H. Woods, Respondent.

          IN MANDAMUS/PROCEDENDO ON OBJECTIONS TO THE MAGISTRATE'S DECISION

         On brief:

          Marcus D. White, pro se.

          Ron O'Brien, Prosecuting Attorney, and Arthur J. Marziale, Jr., for respondent.

          DECISION

          DORRIAN, J.

         {¶ 1} Relator, [1] Marcus D. White, an inmate of the Warren Correctional Institution ("WCI"), requests a writ of mandamus and/or procedendo ordering respondent, the Honorable William H. Woods, a judge of the Franklin County Court of Common Pleas ("respondent") to issue a final appealable order in Franklin C.P. No. 03CR-7014, which complies with R.C. 2505.02 and Crim.R. 32(C). Respondent requests this court dismiss the action.

         {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals, the writ of mandamus/procedendo action was referred to a magistrate of this court. The magistrate issued the attached decision, including findings of fact and conclusions of law, and recommended this court grant respondent's motion to dismiss. The magistrate reasoned the original action is barred because White had a plain and adequate remedy at law which he exercised in his appeal to this court in State v. White, 10th Dist. No. 17AP-538, 2017-Ohio-8750 ("White IV").[2]

         {¶ 3} The criteria for granting mandamus was outlined by the Supreme Court of Ohio in State ex rel. Priest v. Dankof, 143 Ohio St.3d 82, 2015-Ohio-165, ¶ 2. "To obtain a writ of mandamus, [relator] must establish a clear legal right to the requested relief, a clear legal duty on the part of [respondent] to grant 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, ¶ 6. In order to be entitled to a writ of procedendo, a relator must establish a clear legal right to require that court to proceed, a clear legal duty on the part of the court to proceed, and the lack of an adequate remedy in the ordinary course of law. State ex rel. Miley v. Parrott, 77 Ohio St.3d 64, 65 (1996). A writ of procedendo is appropriate when a court has either refused to render a judgment or has unnecessarily delayed proceeding to judgment. Id.

         {¶ 4} White has filed objections to the magistrate's decision. In his objections, White argues the trial court never issued a final appealable order in common pleas case No. 03CR-7014 and, therefore, the appellate court had no jurisdiction to make a ruling in White IV and all prior appellate rulings related to common pleas case No. 03CR-7014 are nullities. Pursuant to White, he could never have an adequate remedy at law by way of appeal because there can be no appeal without a final appealable order that complies with R.C. 2505.02 and Crim.R. 32(C).

         {¶ 5} In his complaint for mandamus/procedendo, White argued the judgment entry issued in common pleas case No. 03CR-7014 does not comply with Crim.R. 32(C) because: (1) the entry states that White was found guilty of R.C. 2903.02 Murder, although the jury found him not guilty of the same, (2) the entry should have stated that White was found guilty of R.C. 2903.02(B) Felony Murder, and should have stated that felonious assault "to wit: Ms. Green" was the predicate offense of the Felony Murder charge, and (3) the entry did not sentence White or notify him of post-release control for the offense of felonious assault "to wit: Ms. Green."

         {¶ 6} According to White, the sentencing entry fails to set forth the fact of conviction as required by Crim.R. 32(C).[3] He further argues that, although the trial court's entry denying his motion to vacate in 2012[4] explains the fact of his conviction for felony murder pursuant to R.C. 2903.02(B), State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, [5] requires the fact of conviction be evident in one entry, not two. Finally, White argues that because the trial court has previously denied his request for a judgment entry which complies with Crim.R. 32(C), pursuant to our ruling in State v. Bonner, 10th Dist. No. 14AP-611, 2015-Ohio-1010, the appropriate remedy for him is to seek mandamus or procedendo to compel the trial court to issue a compliant sentencing entry.

         {¶ 7} Respondent did not file a memorandum contra White's objections. However, in moving to dismiss, respondent argued White is attempting to achieve postconviction relief beyond the time allotted to him pursuant to statute. Respondent noted White was resentenced on October 20, 2006 in common pleas case No. 03CR-7014, and that now, nearly 11 years later, he cannot seek to have his sentence modified. Respondent argued further that res judicata applies because White did not seek appeal of his October 20, 2006 resentencing or timely file a postconviction petition.

         {¶ 8} We agree with the magistrate that with this original action, White is relitigating the same assignment of error he litigated in his appeal to this court in White IV. White's assignment of error in White IV was difficult to decipher. He made numerous arguments that the indictment in the case was deficient[6] White also, however, argued:

Thus, Appellant's direct appeal subsequent to that void judgment is equally void, and it is as if the direct appeal never occurred. Further, the Appellant's Judgment Entry is void on its face, because it fails to set forth the fact of conviction. When 1) it states Appellant was convicted of "§2903.02 Murder", a charge Appellant was found not guilty of. When the Trial Court instructed the jury on Aggravated Murder (A) (purposely w/prior) and Appellant was acquitted, Murder (A) (purposely) and Appellant was acquitted, and Murder (B) (proximate result) which Appellant was illegally convicted. 2) fails to state the unindicted count of Felonious Assault to wit: Ms. Green as the predicate offense/mens rea of the unindicted Felony Murder. Fails to state Murder (A)/(purposely) nor Felony Murder (B)/(proximate result) and therefore does not comply with Crim. R. 32 (C). (See Ex. 1 proper Judgment/Termination Entry, Count 6)

(Emphasis omitted.) (Sic passim.) (White's Appellate Brief in White IV at 15-16.) White further argued:

It must also be noted that the doctrine of res judicata cannot apply. As the judgment of conviction and sentence rendered by the trial court is void, the judgment is not a "final" or "appealable" order. * * * Appellant's direct appeal subsequent to that void judgment is equally void, and it is as if the direct appeal never occurred. In count one of the court's Judgment Entry the court failed to state what subsection of Murder, (Murder (A) purposely or Murder (B) proximate result) Appellant was convicted of, or another count of felonious assault to wit: Ms Green as the predicate offense/mens rea of Felony Murder. Meaning the Court's Judgment Entry is void on it's face, when it stated Appellant was "convicted of §2903.02 Murder", a charge Appellant was found not guilty of.

(Emphasis omitted.) (Sic passim.) (White's Appellate Brief in White IV at 25-26.)

         {¶ 9} In White IV, we addressed White's arguments regarding deficiencies in the indictment and held that the untimeliness of his request for postconviction relief and res judicata barred the same. We did not specifically address White's jurisdictional arguments outlined above. White filed an application to reconsider and pointed out to the court that it had failed to address the jurisdictional arguments outlined above. In denying the application for reconsideration, we addressed the merits of White's jurisdictional arguments outlined above. We stated:

In his application for reconsideration, appellant alleges that we failed to sua sponte address or consider our own jurisdiction to hear this appeal. Appellant argues that this case lacks a final, appealable order because the trial court failed to properly record all the requirements of Crim.R. 32(C) in the judgment entry. Appellant alleges that the judgment entry does not state a fact of conviction nor sentence. Since it is unclear whether appellant is challenging the judgment entry of August 4, 2005, or the re-sentencing entry of October 24, 2006, we will consider both.
Crim.R. 32(C) provides, in pertinent part: "[a] judgment of conviction shall set forth the fact of conviction and the sentence. * * * The judge shall sign the judgment and the clerk shall enter it on the journal." "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. (Crim.R. 32(C) explained; State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, modified.)." State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, paragraph one of the syllabus. The Supreme Court of Ohio has explained that "[t]he purpose of Crim.R. 32(C) is to ensure that a defendant is on notice concerning when a final judgment has been entered and the time for filing an appeal has begun to run." Id. at ¶ 10, citing State v. Tripodo, 50 Ohio St.2d 124, 127 (1977).
On October 22, 2003, appellant was indicted for aggravated murder with capital and firearm specifications for the shooting death of his mother-in-law (Count 1 of the indictment), attempted murder with a firearm specification for the shooting of his wife (Count 2 of the indictment), and tampering with evidence (Count 3 of the indictment). The state dismissed Count 3 of the indictment. A jury trial commenced on May 20, 2005, and the jury returned a verdict finding appellant not guilty of aggravated murder, but guilty of the lesser included offense of murder, and not guilty of attempted murder, but guilty of the lesser included offense of felonious assault. The jury also found that appellant used a firearm to facilitate the offenses.
Appellant timely appealed but did not argue, nor assign as error, any claim that the judgment entry was not a final appealable order. Subsequent to the judgment entry of August 4, 2005, the Supreme Court of Ohio decided the case of State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, which required us to remand the case to the trial court for re-sentencing. State v. White, 10th Dist. No. 05AP-1178, 2006-Ohio-4226 ("White I"). On October 20, 2006, a re-sentencing hearing was held. On October 24, 2006, the trial court issued a re-sentencing entry. Appellant again appealed but made no claim that the re-sentencing entry was not a final appealable order. We affirmed the trial court's judgment. State v. White, 10th Dist. No. 07AP-743, 2008-Ohio-701 ("White II").
The record reveals that both the August 4, 2005 judgment entry and the October 24, 2006 re-sentencing entry complied with Crim.R. 32. Contrary to appellant's claim, we find that both entries contain the fact of conviction and the sentence. The entries clearly state that the jury found appellant guilty of the lesser included offense of murder as to Count 1 of the indictment, and of the lesser included offense of felonious assault as to Count 2 of the indictment, and that the specifications as to Counts 1 and 2 of the indictment merge as to sentencing. The judgment entry states that appellant was sentenced to 15 years to life as to Count 1 of the indictment, to be served consecutively to 7 years as ...

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