THE STATE EX REL. WOMACK, APPELLANT, v. MARSH, JUDGE, APPELLEE.
No. 2010-1157
Supreme Court of Ohio
Submitted January 4, 2011—Decided January 25, 2011
128 Ohio St.3d 303, 2011-Ohio-229
{110} Based upon the foregoing, we agree that the applicant has failed to prove that he possesses the requisite character, fitness, and moral qualifications for admission to the practice of law. Accordingly, we accept the board‘s recommendation to disapprove the applicant‘s pending application at this time. However, we will permit him to apply to take the February 2011 or a later bar exam, provided that he submit a new reexamination application and is able to establish his character, fitness, and other qualifications.
Judgment accordingly.
O‘CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O‘DONNELL, LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
Hassan Jonathan Griffin, pro se.
Loveland & Brosius, L.L.C., and William Lyle Loveland, for the Columbus Bar Association.
Per Curiam.
Facts
{12} After a jury trial, Womack was convicted of four counts of robbery in violation of
{13} On June 8, 2009, Womack filed a motion in the common pleas court for resentencing pursuant to State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, in which we held that certain sentencing statutes were unconstitutional because they required judicial fact-finding before imposition of consecutive sentences. On December 1, 2009, Womack filed a motion in the common pleas court for resentencing due to the error in imposing postrelease control.
{14} On May 3, 2010, Womack filed a petition in the Court of Appeals for Hamilton County for a writ of mandamus to compel Judge Marsh to rule on his motions for resentencing. Womack also requested that Judge Marsh be compelled to vacate his convictions and sentence, conduct a new sentencing hearing, and issue a new judgment. Four days later, Judge Marsh denied Womack‘s motions and determined that he was not entitled to a new sentencing hearing. Nevertheless, Judge Marsh corrected Womack‘s sentencing entry to specify that he was subject to three years, not five years, of mandatory postrelease control:
{15} “The court further finds that the defendant is correct that the mandatory term of post-release control is three years as opposed to the five years originally
{16} Judge Marsh then moved to dismiss Womack‘s mandamus petition because his claim was rendered moot by her ruling. The court of appeals granted the judge‘s motion and dismissed the petition.
{17} This cause is now before the court upon Womack‘s appeal as of right.
Legal Analysis
Mandamus
{18} Womack asserts that the court of appeals erred in dismissing his mandamus petition. “A court can dismiss a mandamus action under
{19} To be entitled to the writ, Womack must establish a clear legal right to the requested relief, a corresponding clear legal duty on the part of Judge Marsh to provide it, and the lack of an adequate remedy in the ordinary course of the law. State ex rel. Husted v. Brunner, 123 Ohio St.3d 288, 2009-Ohio-5327, 915 N.E.2d 1215, ¶ 8.
Ruling on Motions for Resentencing
{110} The court of appeals properly dismissed Womack‘s petition to compel Judge Marsh to rule on his motions for resentencing once the judge had ruled on the motions. “Mandamus will not compel the performance of an act that has already been performed.” State ex rel. Dehler v. Kelly, 123 Ohio St.3d 297, 2009-Ohio-5259, 915 N.E.2d 1223, ¶ 1.
Vacation of Convictions, New Sentencing Hearing, and New Judgment Entry
{111} Nevertheless, Womack‘s petition also requested that Judge Marsh vacate his convictions, conduct a new sentencing hearing, and issue a new
{12} To be sure, Womack is correct that if a trial court refuses to issue a new sentencing entry that includes the appropriate term of postrelease control, a party can generally compel the trial court to do so by filing an action for a writ of mandamus or a writ of procedendo. See State ex rel. Carnail v. McCormick, 126 Ohio St.3d 124, 2010-Ohio-2671, 931 N.E.2d 110. We have also held, in general, that “[f]or criminal sentences imposed prior to July 11, 2006, in which a trial court failed to properly impose postrelease control, trial courts shall conduct a de novo sentencing hearing in accordance with decisions of the Supreme Court of Ohio.” State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, paragraph one of the syllabus.
{13} Judge Marsh has now corrected Womack‘s original sentencing entry to reflect the appropriate three-year term of mandatory postrelease control, which is what the trial court had properly imposed at Womack‘s sentencing hearing. No new sentencing hearing is required, because the trial court‘s failure to include the postrelease-control term in the original sentencing entry was manifestly a clerical error. It appears that this error arose from the trial court‘s mistaken designation of Womack‘s robbery convictions as felonies of the first degree instead of felonies of the third degree.
{14} Because appellant was notified of the proper term of postrelease control at his sentencing hearing and the error was merely clerical in nature, Judge Marsh was authorized to correct the mistake by nunc pro tunc entry2 without holding a new sentencing hearing. Cf. Cruzado at ¶ 20, fn. 1 (error in postrelease control in sentencing entry was not treated as a clerical error by the judge when he held a sentencing hearing before entering the new sentencing order).
{15} Finally, the nunc pro tunc entry related back to Womack‘s original sentencing entry so that neither
Conclusion
{16} Based on the foregoing, Womack is not entitled to the requested extraordinary relief in mandamus. Therefore, we affirm the judgment of the court of appeals dismissing Womack‘s mandamus petition.
Judgment affirmed.
O‘CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O‘DONNELL, LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
James E. Womack, pro se.
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for appellee.