State ex rel. Roberts v. Marsh (Slip Opinion), 128 N.E.3d 222

Mallon Roberts was convicted of murder with a repeat-violent-offender specification and sentenced to 25 years to life in 2005; conviction and sentence were affirmed on direct appeal.
In 2015 Roberts moved under Crim.R. 36 to correct his sentencing entry, asserting multiple statutory errors including improper imposition of postrelease control for murder.
The court of appeals (2017) affirmed in part but held postrelease control could not be imposed for murder and remanded to the trial court to vacate that portion of the sentencing entry.
Before the trial judge acted, Roberts filed for writs of procedendo and/or mandamus seeking to be physically returned for a new sentencing hearing; the judge did not convene a hearing but issued a March 9, 2018 entry vacating the postrelease-control sanction.
The court of appeals dismissed Roberts’s petition as moot and held no in-person resentencing hearing was required to delete the erroneous postrelease-control term; the Ohio Supreme Court affirmed.

Issue	Plaintiff's Argument (Roberts)	Defendant's Argument (Marsh)	Held
Whether entire sentencing entry was void because it included postrelease control	Inclusion of postrelease control rendered the whole sentence void	Only the portion imposing improper postrelease control is void	Only the postrelease-control portion is void; entire sentence not void
Whether trial court’s March 9, 2018 entry was improper because it was not a mere clerical correction (nunc pro tunc)	The judge’s entry was substantive, not clerical, so a nunc pro tunc could not be used to alter sentence	Deleting an improperly included sanction is permissible without a de novo hearing	Deletion of an erroneous postrelease-control sanction was proper; nunc pro tunc precedent inapposite where punishment is deleted
Whether Crim.R. 43 required Roberts’s physical presence for resentencing	Crim.R. 43 mandates defendant be present for resentencing; thus Roberts must be conveyed to court	No de novo resentencing was required because court only removed an improper sanction	Crim.R. 43 did not entitle Roberts to be physically returned where only deletion of postrelease control occurred
Whether writs of mandamus/procedendo were appropriate to force resentencing	Roberts had a clear right to be resentenced in open court and no adequate remedy at law	Judge had no duty to convene in-person resentencing to remove an erroneous sanction	Writs denied: no clear right to in-person resentencing; dismissal affirmed

State v. Bezak, 114 Ohio St.3d 94 (nunc pro tunc cannot add omitted substantive sentencing terms)
State v. Fischer, 128 Ohio St.3d 92 (procedures for correcting sentencing entries; added punishments require de novo resentencing)
State v. Simpkins, 117 Ohio St.3d 420 (limitations on nunc pro tunc relief for substantive sentencing additions)
State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55 (mandamus standard: clear right, duty, and lack of adequate remedy)
State ex rel. Poulton v. Cottrill, 147 Ohio St.3d 402 (procedendo issues: refusal or undue delay in entering judgment)
State ex rel. Ward v. Reed, 141 Ohio St.3d 50 (procedendo: elements required to compel a court to proceed)
State v. Harris, 132 Ohio St.3d 318 (failure to include mandatory term requires resentencing on that term)
State v. Moore, 135 Ohio St.3d 151 (failure to include mandatory fine requires resentencing on that fine)