State ex rel. Harper v. Lucas Cty. Common Pleas Court
2017 Ohio 614
Ohio Ct. App.2017Background
- William Harper was indicted on two counts: attempted murder (with a three-year firearm specification) and felonious assault (with a three-year firearm specification).
- Harper pled guilty pursuant to a plea agreement to attempted murder with a one-year firearm specification; the state agreed not to prosecute Count 2.
- The trial court’s March 23, 2015 sentencing entry sentenced Harper to 10 years plus a mandatory consecutive 1-year firearm term (total 11 years) and noted a nolle prosequi as to Count 2.
- Harper moved to correct his sentence, arguing the sentencing entry was not final and appealable because it failed to explicitly enter nolle prosequi as to the firearm specification attached to Count 2.
- The trial court issued a December 9, 2015 judgment clarifying it would issue a nunc pro tunc entry treating the nolle prosequi on Count 2 as including dismissal of the attached firearm specification and denied other relief.
- Harper filed this original action seeking writs of mandamus and procedendo to compel a final appealable order or a de novo resentencing; the court of appeals denied both writs and dismissed the complaint.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the March 23, 2015 sentencing entry was a final, appealable order | Harper: Not final because the firearm specification attached to Count 2 was not expressly dismissed, leaving it "pending." | Respondents: The entry contained conviction, sentence, judge's signature, and clerk's timestamp; any omission can be corrected nunc pro tunc and the specification was dismissed. | Court: Entry met final-order requirements and was final and appealable; specification dismissal did not need separate disposition. |
| Entitlement to writ of mandamus to compel a final order | Harper: Seeks writ because he lacks a final appealable order and needs resentencing/clarification. | Respondents: No clear legal right; trial court has no duty to issue additional relief; nunc pro tunc suffices. | Court: Mandamus denied—Harper failed to show clear legal right. |
| Entitlement to writ of procedendo to compel resentencing or de novo hearing | Harper: Requests procedendo to force the trial court to correct errors and conduct de novo sentencing if necessary. | Respondents: No duty to proceed because no defect requiring resentencing; clarification and nunc pro tunc resolve issue. | Court: Procedendo denied—no right to resentencing or hearing. |
| Whether nunc pro tunc correction can retroactively clarify dismissal of specification | Harper: Objected that dismissal was not explicit as to the firearm specification. | Respondents: Nunc pro tunc may correct clerical omission and reflect that the specification was dismissed at sentencing. | Court: Accepted trial court’s clarification that nunc pro tunc entry will show dismissal retroactive to original sentence. |
Key Cases Cited
- State v. Lester, 958 N.E.2d 142 (Ohio 2011) (sets requirements for a criminal judgment to be final and appealable)
- State ex rel. Berger v. McMonagle, 451 N.E.2d 225 (Ohio 1983) (elements for writ of mandamus)
- State ex rel. Duncan v. DeWeese, 974 N.E.2d 1197 (Ohio 2012) (sentencing entry need not dispose of specifications for which defendant was not convicted to be final)
- State ex rel. Sherrills v. Cuyahoga Cty. Court of Common Pleas, 650 N.E.2d 899 (Ohio 1995) (elements for writ of procedendo)
- Davey v. Owen, 12 N.E.2d 144 (Ohio 1937) (procedendo compels an inferior court to proceed to judgment but does not control the content of that judgment)