{¶ 2} In 2004, Henley was convicted in the Montgomery County Common Pleas Court of four counts of rape, one count of kidnapping, two counts of felonious assault, and one count of attempted felonious assault and was sentenced to an aggregate prison term of 22 years. State v. Henley , 2d Dist. Montgomery No. 20789,
{¶ 3} On October 24, 2017, Henley filed a complaint for a writ of mandamus asking the Second District Court of Appeals to compel Judge Langer to issue a revised sentencing entry that complied with Crim.R. 32(C). Henley argued that because the trial court had used a "total [of] 4 documents * * * to constitute its sentencing order," Henley's sentencing entry was not a final, appealable order. Judge Langer did not respond to the mandamus complaint or otherwise enter an appearance in the case.
{¶ 4} On December 21, 2017, referring to a previous motion for a revised sentencing entry that Henley filed in August 2017, the court of appeals ordered Henley to show cause why his complaint should not be dismissed on adequate-remedy grounds.
{¶ 5} We affirm the court of appeals' judgment. To be entitled to a writ of mandamus, Henley must establish that (1) he has a clear legal right to the requested relief, (2) Judge Langer had a legal duty to provide it, and (3) Henley lacks an adequate remedy in the ordinary course of the law. State ex rel. Marsh v. Tibbals ,
Judgment affirmed.
O'Connor, C.J., and O'Donnell, French, Fischer, and DeGenaro, JJ., concur.
Kennedy, J., concurs in judgment only, with an opinion joined by DeWine, J.
Kennedy, J., concurring in judgment only.
{¶ 7} Because the allegations of appellant Brian D. Henley's complaint, taken as true, fail to state a claim upon which relief may be granted, because he had an adequate remedy in the ordinary course of the law, and because his claims are barred by res judicata, I concur only in the court's judgment affirming the Second District Court of Appeals' judgment dismissing this mandamus action.
Facts and Procedural History
{¶ 8} In 2004, a jury found Henley guilty of four counts of rape, two counts of felonious assault, and one count each of kidnapping and attempted felonious assault, and the trial court sentenced him to an aggregate prison term of 22 years. State v. Henley , 2d Dist. Montgomery No. 20789,
{¶ 9} In August 2017, Henley moved the trial court for a revised sentencing entry; he admits in his brief to this court that he sought the entry of a final, appealable order that complies with Crim.R. 32(C) as construed by State v. Baker ,
{¶ 10} Rather, in October 2017, Henley filed a complaint for a writ of mandamus in the Second District Court of Appeals, seeking to compel appellee, Montgomery County Court of Common Pleas Judge Dennis J. Langer, to issue a sentencing entry that complied with Crim.R. 32(C) as construed by Baker , which states that "[o]nly one document can constitute a final appealable order," id. at ¶ 17. Henley alleged that in addition to the sentencing entry, the trial court had issued three other documents: "FINDINGS IN SUPPORT OF CONSECUTIVE SENTENCES," "FINDINGS IN SUPPORT OF MAXIMUM SENTENCE,"
{¶ 11} The court of appeals ordered Henley to show cause why his complaint should not be dismissed, noting that the trial court had denied his motion for a revised sentencing entry and that Henley could have appealed from that denial. Henley responded that he could not have appealed from the denial of the motion because the trial court had never entered a final, appealable order. The court of appeals dismissed the complaint, holding that Henley had an adequate remedy in the form of an appeal from the trial court's
{¶ 12} Henley appealed to this court as of right.
Failure to State a Claim for Relief
{¶ 13} The court of appeals may dismiss a mandamus action for failure to state a claim upon which relief may be granted "if, after all factual allegations of the complaint are presumed true and all reasonable inferences are made in the relator's favor, it appears beyond doubt that he can prove no set of facts entitling him to the requested writ of mandamus." State ex rel. Russell v. Thornton ,
{¶ 14} Here, taking all allegations in Henley's complaint as true, he failed to state a claim for relief. Although he alleges that a final, appealable order in a criminal case must include the fact of conviction, the sentence, the judge's signature, and the time stamp indicating entry on the journal pursuant to State v. Lester ,
{¶ 15} Instead of arguing that his sentence does not comply with Lester , Henley contends that because the trial court failed to incorporate the findings supporting imposition of consecutive sentences, maximum sentences, and greater than minimum sentences in the sentencing entry, there is no final, appealable
{¶ 16} Henley cites State v. Bonnell as requiring the trial court to incorporate these findings in the sentencing entry.
{¶ 17} Henley therefore has failed to state a claim upon which relief may be granted.
Adequate Remedy at Law
{¶ 18} In any event, Henley cannot establish the elements of a mandamus action.
{¶ 19} Here, Henley cannot prove entitlement to a writ of mandamus because he had an adequate remedy by way of an appeal from the denial of his motion for a revised sentencing entry. State ex rel. Bevins v. Cooper ,
{¶ 21} Second, to the extent that Culgan indicated that a writ of mandamus is available to review a trial court's denial of a motion for a final, appealable order, it failed to recognize the distinction between a trial court's refusal to rule on a motion for a final, appealable order and its denial of such a motion. As the decisions cited in Culgan clarify, when no entry has been journalized, there is nothing that can be appealed and there is no adequate remedy at law that would preclude an extraordinary writ. See State ex rel. Grove v. Nadel ,
{¶ 22} In contrast, when the petitioner has moved for a final, appealable order and the trial court has determined that a final, appealable order has already been entered and denies the motion, an appeal is an adequate remedy-the court of appeals can review the trial court's decision on direct appeal and determine whether a final, appealable order has been entered in the first instance. There is no difference between the relief that would be available on an appeal as of right and in an action for an extraordinary writ in these circumstances, and it is well established that mandamus is not a substitute for an appeal. See State ex rel. Richfield v. Laria ,
{¶ 23} Lastly, even if it were true that the trial court never entered a final, appealable order in Henley's criminal case, he would not be entitled to a writ of mandamus. Our decision in State ex rel. Woods v. Dinkelacker ,
{¶ 24} Similarly, here, Henley previously and unsuccessfully argued in a motion for a revised sentencing entry that his sentencing entry did not comply with Crim.R. 32. Pursuant to Woods , the doctrine of res judicata precludes the issuance of an extraordinary writ in this case.
{¶ 25} For these reasons, I would affirm the judgment of the court of appeals.
DeWine, J., concurs in the foregoing opinion.
Notes
According to Henley's complaint for a writ of mandamus, in August 2017, he filed a motion for a revised sentencing entry in the Montgomery County Common Pleas Court. And according to the show-cause order, the trial court denied Henley's motion for a revised sentencing entry on August 18, 2017. Henley failed to appeal that judgment. Neither the motion for a revised sentencing entry nor the denial of that motion is in the record before us.