[Cite as Jones v. Ansted, 2011-Ohio-3714.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
SANDUSKY COUNTY
State of Ohio, ex rel. Marquise Jones
Court of Appeals No. S-11-024
Relator
v.
Judge Barbara J. Ansted
Respondent
DECISION AND JUDGMENT
Decided: July 25, 2011
*****
Marquise Jones, pro se.
*****
OSOWIK, J.
Relator, Marquise Jones, has filed a petition for a writ of mandamus against
respondent, Judge Barbara J. Ansted, judge of the Sandusky County Court of Common
Pleas. The underlying facts, taken from the trial court's record, are as follows. In 2008,
appellant was convicted, following a jury trial, of six felony offenses1 in connection with
1
Appellant was originally charged with 17 separate offenses.
an orchestrated, armed assault and robbery that took place in Fremont, Ohio. In its
judgment entry of sentencing issued on October 28, 2008, the trial court stated that each
of those six offenses carried a firearm specification, and sentenced appellant to serve a
total of 21 years in prison. Relator asserts in his petition that he should have been
sentenced separately for each of the six firearm specifications; however, the sentencing
judgment entry stated that relator's 21-year sentence included "a MANDATORY term of
THREE (3) YEARS for the firearm specification."
In support of his petition, relator argues that the sentencing order is not final and
appealable because, pursuant to Crim.R. 32(C), he should have been separately sentenced
for each of the firearm specifications attached to his six felony convictions. Relator now
asks this court to issue a writ of mandamus and/or procedendo, pursuant to R.C. Chapter
2731, ordering respondent to issue a corrected "judgment entry of conviction and
sentence that fully complies with Criminal Rule 32(C) and constitutes a final appealable
order." Attached to relator's petition is a memorandum in support, an "Affidavit of
Verity," an affidavit pursuant to R.C. 2969.25(A) stating that he has not filed any civil
actions or an appeal from a civil action in the previous five years, an affidavit of
indigency, the trial court's judgments of conviction and sentencing, and a portion of the
transcript from his sentencing hearing held on October 27, 2008.
Relator also states that on March 14, 2011, he filed a motion asking respondent to
issue a judgment entry in compliance with Crim.R. 32(C). In addition to the above
2.
attachments, relator has attached to his petition a copy of a judgment entry issued by
respondent on March 29, 2011, in which respondent stated:
"Upon consideration of the Motion and the Response filed by the State of Ohio,
the court finds the Motion not well taken and is hereby denied for the reason that a
firearm specification is merely a sentencing enhancement, not a separate offense that
would require vacating the prior sentence."
Pursuant to Crim.R. 32(C), "[a] judgment of conviction shall set forth the plea, the
verdict, or findings, upon which each conviction is based, and the sentence. * * *" See,
also, State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330. (In a criminal case, a final,
appealable order must have: "(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 court." Id. at syllabus.) In order to obtain a
remedy for an allegedly improper order that lacks any of above-stated requirements, a
defendant must first file a motion in the trial court seeking correction of the judgment
entry. If such a request is refused, the defendant may seek to compel the trial court to act
by filing an action for mandamus or procedendo. State ex rel. Moore v. Krichbaum, 7th
Dist. No. 09 MA 201, 2010-Ohio-1541, ¶ 9, citing Dunn v. Smith, 119 Ohio St.3d 364,
2008-Ohio-4565, ¶ 8.
A writ of procedendo will not issue from a superior court to compel a lower court
to make a specific ruling, or where an adequate remedy at law exists. State ex rel. Lisboa
v. Gold, 8th Dist. No. 96164, 2011-Ohio-2666, ¶ 2, citing State ex rel. Utley v. Abruzzo
3.
(1985), 17 Ohio St.3d 202, and State ex rel. Hansen v. Reed (1992), 63 Ohio St.3d 597.
Because we cannot compel respondent to make a specific finding that relator's sentence
was improper, a writ of procedendo will not issue in this case. We will next consider
whether relator is entitled to a writ of mandamus.
"A writ of mandamus is an order to a public officer, to perform an act which the
law specifically enjoins as a duty resulting from his office. R.C. 2731.01. In order to
grant a writ of mandamus, a court must find that the relator has a clear legal right to the
relief prayed for, that the respondent is under a clear legal duty to perform the requested
act, and that the relator has no plain and adequate remedy at law." State ex rel. Hodges v.
Taft (1992), 64 Ohio St.3d 1, 3, citing State ex rel. Harris v. Rhodes (1978), 54 Ohio
St.2d 41.
R.C. 2929.14(D)(1)(b) states that "a trial court shall not impose more than one
prison term for multiple firearm specifications if the specifications involve the same 'act
or transaction.'" State v. Young, 2d Dist. No. 23642, 2011-Ohio-747, ¶ 53. "Same act or
transaction does not have the same meaning as course of criminal conduct." State v.
Walker (June 30, 2000), 2d Dist. No. 17678. For purposes of R.C. 2929.14(D)(1)(b), the
phrase "means a series of continuous acts bound together by time, space and purpose, and
directed toward a single objective." State v. Young, supra, at ¶ 54, quoting State v.
Walker, supra.
4.
Appellant does not claim that all of his convictions did not arise out of the "same
act or transaction." Accordingly, we find no basis on which to conclude that respondent
erred by merging the six firearm specifications for purposes of sentencing.
On consideration of the foregoing, we find that respondent is under no clear legal
duty to do the act requested in relator's petition for mandamus. This mandamus action is
dismissed at relator's costs.
It is so ordered.
WRIT DENIED.
Mark L. Pietrykowski, J.
_______________________________
JUDGE
Thomas J. Osowik, P.J.
Stephen A. Yarbrough, J.
CONCUR.
_______________________________
JUDGE
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio's Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court's web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
5.
