State ex rel. White v. Aveni , 2021 Ohio 3159 ( 2021 )

[Cite as State ex rel. White v. Aveni, 2021-Ohio-3159.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Marcus D. White, :
Relator, :
No. 21AP-103
v. :
(REGULAR CALENDAR)
Judge Carl A. Aveni, II, :
Respondent. :
D E C I S I O N
Rendered on September 14, 2021
On brief: Marcus D. White, pro se.
On brief: [Jeanine Hummer, First Assistant Prosecuting
Attorney], and Bryan B. Lee, for respondent.
IN MANDAMUS/PROCEDENDO
ON OBJECTION TO THE MAGISTRATE'S DECISION
DORRIAN, P.J.
{¶ 1} In this original action, relator, Marcus D. White, an inmate of the Pickaway
Correctional Institution, requests a writ of mandamus/procedendo ordering respondent,
the Honorable Carl A. Aveni, II, a judge of the Franklin County Court of Common Pleas, to
enter a judgment of conviction and sentence that properly disposes of Count 2 of the
indictment in Franklin C.P. No. 03CR-7014. Respondent requests this court dismiss the
action, pursuant to Civ.R. 12(B)(6), for failure to state a claim upon which relief can be
granted.
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,
this matter was referred to a magistrate who issued a decision, including findings of fact
No. 21AP-103 2
and conclusions of law, which is appended hereto. The magistrate recommends this court
grant respondent's motion to dismiss. The magistrate reasoned the original action is barred
because relator's arguments regarding the alleged defects in the 2006 sentencing entry
have been addressed and rejected "more times than would be productive to count."
(Appended Mag.'s Decision at ¶ 29.) The magistrate further reasoned respondent or one of
his predecessors presiding over this case has issued a valid final order of conviction and
sentence in relator's criminal case.
{¶ 3} The criteria for granting mandamus was outlined by the Supreme Court of
Ohio in State ex rel. Priest v. Dankof, 143 Ohio St.3d 82, 2015-Ohio-165, ¶ 2. "To obtain a
writ of mandamus, [relator] must establish a clear legal right to the requested relief, a clear
legal duty on the part of [respondent] to grant it, and the lack of an adequate remedy in the
ordinary course of the law." Id., citing State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55,
2012-Ohio-69, ¶ 6. In order to be entitled to a writ of procedendo, a relator must establish
a clear legal right to require that court to proceed, a clear legal duty on the part of the court
to proceed, and the lack of an adequate remedy in the ordinary course of law. State ex rel.
Miley v. Parrott, 77 Ohio St.3d 64, 65 (1996). A writ of procedendo is appropriate when a
court has either refused to render a judgment or has unnecessarily delayed proceeding to
judgment. Id.{¶ 4} Relator has filed an objection to the magistrate's decision. In his objection,
relator argues he has never been sentenced for "violating felonious assault to wit: Ms.
[Debra] Green, law of the case, res judicata, or any time bar applies." (Obj. at 3.)
{¶ 5} For the reasons outlined in the magistrate's decision, we overrule relator's
objection and grant respondent's motion to dismiss. In State v. White, 10th Dist. No. 17AP-
538, 2017-Ohio-8750, and State v. White, 10th Dist. No. 18AP-711 (Mar. 21, 2019)
(memorandum decision), we addressed the issues relator raises here. Further, in State ex
rel. White v. Woods, 156 Ohio St.3d 562, 2019-Ohio-1893, ¶ 8, the Supreme Court held:
White disputes the court of appeals' conclusion that he had an
adequate remedy at law because, according to him, the 2006
resentencing entry is not a final, appealable order.
Specifically, he contends that the 2006 entry failed to comply
with Crim.R. 32(C) and [State v. Baker, 119 Ohio St.3d 197,
2008-Ohio-3330]. A sentencing entry is a final, appealable
order when it sets forth "(1) the fact of the conviction, (2) the
sentence, (3) the judge's signature, and (4) the time stamp
No. 21AP-103 3
indicating the entry upon the journal by the clerk." State v.
Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142,
paragraph one of the syllabus (modifying Baker). The 2006
entry is one document and satisfies all four requirements: it
states that White was convicted of murder and felonious
assault, states his sentence for each crime, is signed by former
Judge Daniel T. Hogan, and is time-stamped. And contrary to
White's assertion, the resentencing entry notes that the court
had notified him under R.C. 2929.19(B) that he was subject to
a mandatory five-year term of postrelease control. Because
the resentencing entry is a final, appealable order, White had
an adequate remedy in the ordinary course of the law by way
of appeal, which precludes an action for relief in mandamus
or procedendo. [State ex rel. Ward v. Reed, 141 Ohio St.3d 50,
2014-Ohio-4512], at ¶ 12.
{¶ 6} As is apparent from the extensive history related to the underlying criminal
case, No. 03CR-7014, it is clear that relator is aware of and has pursued the adequate
remedy in the ordinary course of the law available to him. Accordingly, relator does not
meet the criteria to grant his complaint for mandamus/procedendo.
{¶ 7} Upon review of the magistrate's decision, an independent review of the
record, and due consideration of relator's objection, we find the magistrate has properly
stated the facts and applied the appropriate law in finding relator is not entitled to relief in
mandamus/procedendo. Therefore, we overrule relator's objection to the magistrate's
decision and adopt the decision as our own, including the findings of facts and conclusions
of law contained therein. Consistent with the legal conclusions reached by the magistrate,
the requested writ of mandamus/procedendo is dismissed.
Objection overruled;
action dismissed.
BEATTY BLUNT and JAMISON, JJ., concur.
No. 21AP-103 4
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Marcus D. White, :
Relator, :
v. : No. 21AP-103
Judge Carl A. Aveni II, : (REGULAR CALENDAR)
Respondent. :
MAGISTRATE'S DECISION
Rendered on April 30, 2021
Marcus D. White, pro se.
G. Gary Tyack, Prosecuting Attorney, and Bryan B. Lee, for
respondent.
IN MANDAMUS AND PROCEDENDO
ON RESPONDENT'S MOTION TO DISMISS
{¶ 8} Relator, Marcus D. White, seeks a writ of mandamus or procedendo ordering
respondent, Judge Carl A. Aveni of the Franklin County Court of Common Pleas, to enter
judgment in relator's underlying criminal case. Relator alleges that although he was
convicted of two felonies, the trial court, even after one resentencing and two nunc pro tunc
entries, has failed to enter a judgment of conviction and sentence that properly disposes of
Count Two of the indictment.
{¶ 9} Respondent has filed a motion to dismiss relator's complaint for failure to
state a claim because the alleged defect in sentencing is nonexistent on the face of the latest
sentencing entry, and because multiple appeals and original actions in this court have
already addressed and determined the issues raised by relator here.
No. 21AP-103 5
Findings of Fact:
{¶ 10} 1. Relator's complaint avers that he is incarcerated at Pickaway Correctional
Institution pursuant to a conviction in Franklin C.P. No. 03CR-7014.
{¶ 11} 2. Relator's complaint further avers that respondent is the common pleas
judge currently assigned to his criminal case.
{¶ 12} 3. Relator was tried in 2005 on charges of aggravated murder (Count One)
and attempted murder (Count Two), involving separate victims in nearly simultaneous
shootings. The jury returned guilty verdicts on the lesser included offenses of felony
murder and felonious assault respectively, both with firearm specifications, the felonious
assault offense supplying the predicate for the felony murder count. This court heard his
direct appeal in State v. White, 10th Dist. No. 05AP-1178, 2006-Ohio-4226, and affirmed
his convictions while remanding for resentencing pursuant to law created by the Supreme
Court of Ohio's intervening decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856.
{¶ 13} 4. The trial court entered a new sentencing entry on October 24, 2006,
imposing terms of 15 years to life on Count One, 7 years on Count Two, and merging the
two firearms specifications to impose a single additional three-year term, all to be served
consecutively. The entry also specifies mandatory post-release control of five years.
{¶ 14} 5. This court affirmed the new sentence in State v. White, 10th Dist. No.
07AP-743, 2008-Ohio-701 discretionary appeal not accepted, 118 Ohio St.3d 1464, 2008-
Ohio-2823.
{¶ 15} 6. Relator has since filed numerous pleadings in the trial court, this court,
and federal court contesting his conviction. Only the ones most pertinent to his present
action are set forth as follows.
{¶ 16} 7. On September 13, 2012, relator filed in the trial court a motion to vacate
his conviction, which the court treated and rejected as a duplicative and untimely petition
for post-conviction relief that was largely barred by res judicata. This court affirmed on
appeal. State v. White, 10th Dist. No. 12AP-1055, 2013-Ohio-2217, discretionary appeal
not accepted, 137 Ohio St.3d 1414, 2013-Ohio-5096.
{¶ 17} 8. On September 16, 2016, relator filed another motion to vacate his sentence,
again treated by the trial court as duplicative, untimely, and barred by res judicata. This
No. 21AP-103 6
court affirmed. State v. White, 10th Dist. No. 17AP-538, 2017-Ohio-8750, discretionary
appeal not accepted, 153 Ohio St.3d 1454, 2018-Ohio-3026.
{¶ 18} 9. In 2018, appellant filed an original action in procedendo and mandamus
requesting that this court issue a writ compelling the trial court to issue a final appealable
order. This court dismissed the action finding relator was relitigating the same alleged
error raised and rejected in 10th Dist. No. 17AP-538, supra. State ex rel. White v. Woods,
10th Dist. No. 17AP-620, 2018-Ohio-2954. The Supreme Court affirmed. State ex rel.
White v. Woods, 156 Ohio St.3d 562, 2019-Ohio-1893. The Supreme Court specifically
rejected relator's attempt to attack the 2006 sentencing entry because relator had an
opportunity to appeal therefrom and correct any alleged errors, which in any event were
nonexistent:
The 2006 entry is one document and satisfies all four
requirements: it states that White was convicted of murder
and felonious assault, states his sentence for each crime, is
signed by former Judge Daniel T. Hogan, and is time-
stamped. And contrary to White's assertion, the resentencing
entry notes that the court had notified him under R.C.
2929.19(B) that he was subject to a mandatory five-year term
of postrelease control. Because the resentencing entry is a
final, appealable order, White had an adequate remedy in the
ordinary course of the law by way of appeal, which precludes
an action for relief in mandamus or procedendo.
Id. at ¶ 8.
{¶ 19} 10. On August 9, 2017, appellant filed in the trial court "notice of availability
and motion for sentencing for count one's 'hanging charge' 2903.11(A)(1) felonious assault
to wit: Debra Green." On September 6, 2017, appellant filed a "notice of availability and
motion for sentencing for count three's 'hanging charge' 2921.12 tampering with evidence."
On September 21, 2017, appellant filed a "motion for speedy trial and notice of availability
for sentencing on count one felony murder (B) §2903.02." The trial court denied the three
motions on August 28, 2018 as duplicative, untimely, and barred by res judicata. This court
affirmed on all grounds cited by the trial court. State v. White, 10th Dist. No. 18AP-711
(March 21, 2019 memorandum decision) at ¶ 16:
As we previously found in [State v. White, 10th Dist. No.
17AP-538, 2017-Ohio-8750], here again, appellant has failed
to demonstrate that any injustice would be precluded by
No. 21AP-103 7
reconsidering our previous holding * * * that the judgment
entry and resentence entry complied with Crim.R. 32 and
were final appealable orders.
{¶ 20} 11. Relator filed in the trial court on September 12, 2017 a motion to set aside
his 2006 sentencing entry as void because the statutorily required term of post-release
control was three years, not five as stated in the entry. The court rejected the proposition
that the 2006 sentencing entry was entirely void, but did agree that the post-release control
term was inaccurate due to a scrivener's error. The trial court entered a nunc pro tunc entry
on February 19, 2019 correcting this term. Relator unsuccessfully appealed to this court to
argue that post-release control should have been omitted entirely. State v. White, 10th Dist.
No. 19AP-153, 2020-Ohio-4313, discretionary appeal not accepted, 160 Ohio St.3d 1461,
2020-Ohio-5332.
{¶ 21} 12. On October 24, 2019, relator filed in the trial court a "motion to correct a
clerical error" in the 2006 sentencing entry as modified by the 2019 nunc pro tunc entry.
Relator asserted that the entry was deficient because, when referencing his felony murder
conviction, the court only referred to R.C. 2903.02 (murder generally) rather than
R.C. 2903.02(B) (felony murder). The trial court accommodated relator with a second
nunc pro tunc sentencing entry on April 30, 2020 adding the requested subsection (B)
where appropriate. Relator again appealed unsuccessfully to this court, which held that the
most recent nunc pro tunc entry was not an appealable order. State v. White, 10th Dist.
No. 20AP-287, 2021-Ohio-588.
{¶ 22} 13. Relator filed his complaint for writs of procedendo and mandamus in this
court on March 16, 2021. Although relator had at that time at least one related motion
pending in the trial court, his complaint in this court does not reference this specifically as
the object of undue delay, but focuses instead on the posture of his criminal case generally
and the purportedly defective state of the court's prior entries and judgment.
{¶ 23} 14. Respondent filed a motion to dismiss on April 12, 2021. Relator filed his
memorandum contra on April 27, 2021.
Discussion and Conclusions of Law:
{¶ 24} Proceedings under Civ.R. 12(B)(6) to dismiss a complaint for failure to state
a claim upon which relief can be granted test the sufficiency of the complaint on its face,
and, in appropriate cases, the effect and sufficiency of any attached documents. State ex
No. 21AP-103 8
rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548 (1992), citing Assn.
for the Defense of the Washington Local School Dist. v. Kiger, 42 Ohio St.3d 116, 117 (1989).
The court may, therefore, only consider the complaint itself and any written instruments
attached thereto by the plaintiff. Cline v. Mtge. Electronic Registration Sys., 10th Dist. No.
13AP-240, 2013-Ohio-5706, ¶ 9; Brisk v. Draf Indus., 10th Dist. No. 11AP-233, 2012-Ohio-
1311, ¶ 10; Park v. Acierno, 160 Ohio App.3d 117, 2005-Ohio-1332, ¶ 29 (7th Dist.). For this
court to grant a motion to dismiss an original action for failure to state a claim upon which
relief can be granted, it must appear beyond doubt from the complaint that relator can
prove no set of facts entitling him to the requested writ. LeRoy v. Allen, Yurasek & Merklin,
114 Ohio St.3d 323, 2007-Ohio-3608, ¶ 14.; O'Brien v. Univ. Community Tenants Union,
Inc., 42 Ohio St.2d 242 (1975), syllabus.
{¶ 25} In order for this court to issue a writ of mandamus, relator must show a clear
legal right to the relief sought, a clear legal duty on the part of the respondent to provide
such relief, and the lack of an adequate remedy in the ordinary course of the law. State ex
rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). " 'A writ of procedendo is
appropriate when a court has either refused to render a judgment or has unnecessarily
delayed proceeding to judgment.' " State ex rel. R.W. Sidley, Inc. v. Crawford, 100 Ohio
St.3d 113, 2003-Ohio-5101, ¶ 16, quoting State ex rel. Weiss v. Hoover, 84 Ohio St.3d 530,
532 (1999).
{¶ 26} Neither procedendo nor mandamus will compel the performance of a duty
that has already been performed. State ex rel. Kreps v. Christiansen, 88 Ohio St.3d 313,
318 (2000), citing State ex rel. Grove v. Nadel, 84 Ohio St.3d 252, 253 (1998). When
assessing whether a relator's complaint states a claim for a writ, the magistrate may take
judicial notice of the pleadings and orders in the underlying case and related cases when
these are not subject to reasonable dispute insofar as they affect the current original action.
Evid.R. 201(B); State ex rel. Ohio Republican Party v. Fitzgerald, 145 Ohio St.3d 92, 2015-
Ohio-5056, ¶ 18; State ex rel. Womack v. Marsh, 128 Ohio St.3d 303, 2011-Ohio-229, ¶ 8.
{¶ 27} Relator asserts that a writ must issue to compel respondent to enter a valid
sentencing entry in his criminal case. He appears to find a defect in the 2006 sentencing
entry (as inconsequentially modified by the two subsequent nunc pro tunc entries) in that
the disposition of Count Two, felonious assault in violation of R.C. 2903.11, does not (unlike
No. 21AP-103 9
the indictment) mention the victim by name. From this, relator extrapolates that the trial
court has never entered final judgment in his case.
{¶ 28} Crim.R. 32(C) specifies the elements that a judgment entry of conviction and
sentence must contain. A judgment entry of conviction must contain these Crim.R. 32(C)
elements to be final and subject to appeal. A judgment of conviction is therefore a final
appealable order under R.C. 2505.02 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 court. State v. Lester, 130
Ohio St.3d 303, 2011-Ohio-5204, ¶ 8-9, citing State v. Baker, 119 Ohio St.3d 197, 2008-
Ohio-3330, syllabus.
{¶ 29} Relator's arguments regarding the alleged defects in the 2006 sentencing
entry have been addressed and rejected more times than would be productive to count.
Suffice to say that this court last rejected this precise argument regarding the language of
Count Two in the indictment and sentencing entry in its decision in State v. White, 10th
Dist. No. 18AP-711, quoted above. Moreover, the Supreme Court has also clearly and
definitively stated that the 2006 sentencing entry is compliant. State ex rel. White v.
Woods, 156 Ohio St.3d 562, 2019-Ohio-1893, quoted above. This holding by a superior
court "remains the law of that case on the legal questions involved for all subsequent
proceedings in the case at both the trial and reviewing levels." Nolan v. Nolan, 11 Ohio
St.3d 1 (1984), citing Gohman v. St. Bernard, 111 Ohio St. 726, 730 (1924).
{¶ 30} Respondent, or more precisely one of his predecessors presiding over the
case, has issued a valid final order of conviction and sentence in relator's criminal case.
Application of principles of res judicata and law of the case preclude any contrary finding
in this original action. Relator's complaint on its face does not state a claim that he has a
clear legal right to the relief prayed for, or that the trial court has unreasonably delayed a
ruling. It is therefore the magistrate's decision and recommendation that respondent's
motion to dismiss the matter for failure to state a claim be granted, and relator's request for
a writ of mandamus or procedendo is accordingly denied.
/S/ MAGISTRATE
MARTIN L. DAVIS
No. 21AP-103 10
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
error on appeal the court's adoption of any factual finding or
legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii),
unless the party timely and specifically objects to that factual
finding or legal conclusion as required by Civ.R. 53(D)(3)(b).