State ex rel. Barr v. Sutula

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[Cite as State ex rel. Barr v. Sutula, 2010-Ohio-926.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 94530 STATE OF OHIO, EX REL. HARRY BARR RELATOR vs. HONORABLE JOHN D. SUTULA RESPONDENT JUDGMENT: COMPLAINT DISMISSED Writ of Mandamus Order No. 430873 RELEASE DATE: March 9, 2010 2 FOR RELATOR Harry M. Barr, pro se Inmate No. 522-149 Lorain Correctional Institution 2075 South Avon Belden Road Grafton, Ohio 44044 ATTORNEY FOR RESPONDENT William D. Mason Cuyahoga County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 CHRISTINE T. MCMONAGLE, P.J.: {¶ 1} Harry Barr, the relator, has filed a complaint for a writ of mandamus. Barr seeks an order from this court, which requires Judge John D. Sutula, the respondent, to re-enter a judgment entry of conviction and sentence in the underlying action of State v. Barr, Cuyahoga County Court of Common Pleas Case No. CR-480727. For the following reasons, we sua sponte dismiss Barr s complaint for a writ of mandamus. {¶ 2} Barr, through his complaint for a writ of mandamus, argues that the sentencing journal entry of February 6, 2007, fails to comport with the requirements of Crim.R. 32(C) and R.C. 2505.02. Specifically, Barr argues that the failure to include within the sentencing journal entry, that he was found guilty by a bench 3 trial, results in a defective sentencing journal entry that requires re-sentencing and entry of a new sentencing journal entry. {¶ 3} Contrary to Barr s argument, the sentencing journal entry of February 6, 2007, is not defective and fully complies with Crim.R. 32(C) and R.C. 2505.02. The Supreme Court of Ohio, in State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, established that a sentencing journal entry is a final appealable order under R.C. 2505.02 and complies with Crim.R. 32(C) when it sets forth: (1) the guilty plea, the jury verdict, or the finding of the court upon which the conviction is based; (2) the sentence; (3) the signature of the judge; and (4) entry on the journal by the clerk of the court. Baker does not require, as argued by Barr, the inclusion of the language by a bench trial. Compliance with Baker simply requires a statement as to the means of conviction. {¶ 4} In the case sub judice, the sentencing journal entry of February 6, 2007, provides that [o]n a former day of court, the court found the defendant guilty of robbery 2911.02 - F2 with notice prior conviction, repeat violent offender specification 2941.149 as charged in count(s) 2 of the indictment. The sentencing journal entry fully complies with the means of conviction requirement as established in Baker. Thus, Judge Sutula possesses no duty to re-sentence Barr. It must also be noted that neither mandamus nor procedendo will compel the performance of a duty that has already been performed. State ex rel. Fontanella v. Kantos, 117 Ohio 4 St.3d 514, 2008-Ohio-1431, 885 N.E.2d 220; State ex rel. Howard v. Doneghy, 102 Ohio St.3d 355, 2004-Ohio-3207, 810 N.E.2d 958. {¶ 5} Accordingly, we sua sponte dismiss Barr s complaint for a writ of mandamus. Costs to Barr. It is further ordered that the Clerk of the Eighth District Court of Appeals serve notice of this judgment upon all parties as required by Civ.R. 58(B). Complaint dismissed. CHRISTINE T. MCMONAGLE, PRESIDING JUDGE FRANK D. CELEBREZZE, JR., J., and COLLEEN CONWAY COONEY, J., CONCUR

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