State ex rel. Mayer v. Henson

[This decision has been published in Ohio Official Reports at 

97 Ohio St.3d 276

.]




 THE STATE EX REL. MAYER, PROS. ATTY., APPELLANT, v. HENSON, JUDGE, ET
                                     AL., APPELLEES.

             [Cite as State ex rel. Mayer v. Henson, 

2002-Ohio-6323

.]
Mandamus sought to compel common pleas court judge to vacate his nunc pro
        tunc entry involving relator and reinstate relator’s 1983 sentence—
        Prohibition—Writ prohibiting common pleas court judge from exercising
        further jurisdiction to enforce his nunc pro tunc entry or taking other
        action regarding relator’s sentence—Court of appeals’ dismissal of
        complaint reversed and cause remanded for further proceedings.
 (No. 2002-0761—Submitted September 24, 2002—Decided December 4, 2002.)
     APPEAL from the Court of Appeals for Richland County, No. 02-CA-23.
                                  __________________
        Per Curiam.
        {¶1} On August 4, 1976, the Franklin County Court of Common Pleas
convicted appellee Donald Rust of rape and sentenced him to a prison term of 5 to
25 years. On August 16, 1976, the Ashland County Court of Common Pleas Court
convicted Rust of rape, escape, and grand theft and sentenced him to an aggregate
prison term of 8 to 30 years. The Franklin County and Ashland County sentences
were ordered to be served concurrently by the Franklin County court.
        {¶2} In May 1982, Rust was paroled, and in June 1983, he was declared a
parole violator. On October 14, 1983, appellee Judge James D. Henson of the
Richland County Court of Common Pleas convicted Rust of rape and sentenced
him to a prison term of 4 to 25 years. Under the then existing version of R.C.
2929.41(B)(3), 140 Ohio Laws, Part I, 599, his new sentence was consecutive to
the sentences reinstated for his parole violation, resulting in an aggregate prison
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term of 12 to 55 years. The expiration of Rust’s maximum aggregate sentence was
September 11, 2030.
       {¶3} On June 8, 2001, Judge Henson issued a nunc pro tunc entry modifying
Rust’s 1983 sentence to be served concurrently with his other sentences and giving
Rust credit for time served from June 18, 1983, until the date of the entry. Judge
Henson expressly stated that this decrease in Rust’s aggregate sentence was
necessitated by a change in policy of the Ohio Adult Parole Authority:
       {¶4} “When this Court and this Judge originally sentenced the defendant on
October 11, 1983, it was this Court’s intention that the defendant serve between
twelve (12) and fifteen (15) years in prison for the three separate cases for which
he pled guilty. Given the rules and regulations of the Adult Parole Authority and
their policies at the time the defendant was sentenced, this Court felt that a 4-25
year sentence consecutive to those of Ashland and Franklin Counties would
accomplish that purpose.
       {¶5} “However, due to a change in policy of the Adult Parole Authority in
giving inmates superflop apparently for its own purposes, the intent of the Court in
its original sentence is being subverted.
       {¶6} “Therefore, IT IS ORDERED, ADJUDGED AND DECREED that the
defendant’s sentence in the within case is hereby ORDERED to be served
concurrent to any other sentence of incarceration to [sic] which the defendant is
serving and the defendant is given credit for time served from the 18th day of June
1983 to present.” (Underlining sic; italics added.)
       {¶7} Under Judge Henson’s nunc pro tunc entry, the current maximum
sentence expiration for Rust is June 11, 2002, instead of September 11, 2030.
       {¶8} On March 19, 2002, appellant, Richland County Prosecuting Attorney
James J. Mayer Jr., filed a complaint in the Court of Appeals for Richland County
for a writ of mandamus or a writ of prohibition compelling Judge Henson to vacate
his June 8, 2001 nunc pro tunc entry and reinstate Rust’s valid 1983 consecutive




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                                     January Term, 2002




sentence. Mayer also sought to prohibit Judge Henson from exercising further
jurisdiction to enforce the nunc pro tunc entry or taking other unauthorized action
regarding Rust’s sentence. In his complaint, Mayer specifically alleged that Judge
Henson patently and unambiguously lacked jurisdiction to issue the nunc pro tunc
entry modifying Rust’s October 14, 1983 sentence and that his actions violated the
separation-of-powers doctrine.
         {¶9} On March 27, 2002, the court of appeals sua sponte dismissed the
complaint because “relator had an adequate remedy by way of a[n] appeal for the
matters raised through this extraordinary original action.”
         {¶10} In his appeal as of right, Mayer asserts that the court of appeals erred
in dismissing sua sponte his complaint for writs of mandamus and prohibition.1
For the reasons that follow, we hold that Mayer’s argument is meritorious and
reverse the judgment of the court of appeals.
         {¶11} “Sua sponte dismissal without notice is appropriate only if the
complaint is frivolous or the claimant obviously cannot prevail on the facts alleged
in the complaint.” McAuley v. Smith (1998), 

82 Ohio St.3d 393, 395

, 

696 N.E.2d 572

. Because the court of appeals did not give the parties prior notice of its
intention to dismiss the complaint sua sponte and an opportunity to respond, we
must determine whether Mayer’s claims are frivolous or obviously meritless.
         {¶12} Mayer alleged in his complaint that Judge Henson patently and
unambiguously lacked jurisdiction to issue his nunc pro tunc entry and modify
Rust’s October 14, 1983 sentence. If a lower court patently and unambiguously
lacks jurisdiction to proceed in a cause, prohibition and mandamus will issue to
prevent any future unauthorized exercise of jurisdiction and to correct the results of
prior jurisdictionally unauthorized actions. State ex rel. Dannaher v. Crawford
(1997), 

78 Ohio St.3d 391, 393

, 

678 N.E.2d 549

.


1. Rust filed a brief, but Judge Henson, whose brief was due on September 3, 2002, did not file one.




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       {¶13} It does not appear beyond doubt, after construing the material factual
allegations of Mayer’s complaint most strongly in his favor, that Mayer’s complaint
is either frivolous or obviously without merit.
       {¶14} First, nunc pro tunc entries “are limited in proper use to reflecting
what the court actually decided, not what the court might or should have decided
or what the court intended to decide.” State ex rel. Fogle v. Steiner (1995), 

74 Ohio St.3d 158, 164

, 

656 N.E.2d 1288

. Judge Henson’s June 8, 2001 nunc pro tunc entry
was improper because it modified Rust’s 1983 sentence to what the court intended
to, but did not actually, decide. See State v. Rowland (Mar. 29, 2002), Hancock
App. No. 5-01-39, 

2002 WL 479164

, holding that a trial court exceeded its
authority by issuing a nunc pro tunc entry reducing a criminal sentence because the
entry did not simply correct a clerical mistake.
       {¶15} Second, Judge Henson admits in his nunc pro tunc entry that in 1983,
he ordered Rust to serve his rape conviction consecutively to his other sentences.
This was required by the existing version of R.C. 2929.41(B)(3). 140 Ohio Laws,
Part 1, 599.
       {¶16} Third, the action of Judge Henson to reduce his previous valid
criminal sentence was a nullity, which may entitle Mayer to the requested
extraordinary relief. Cf. Mun. Court of Toledo v. State ex rel. Platter (1933), 

126 Ohio St. 103

, 

184 N.E. 1

, paragraph five of the syllabus (“Where a court has made
an unlawful order of suspension of execution of a sentence in a criminal case,
mandamus is a proper remedy by which to compel such court to set aside and vacate
such order and compel execution of the original sentence”).
       {¶17} Based on the foregoing, the court of appeals’ rationale that dismissal
was warranted because of the availability of an adequate remedy by appeal to raise
these claims is erroneous. “[A]ppeal is immaterial in prohibition and mandamus
actions where the court patently and unambiguously lacks jurisdiction to act.” State
ex rel. Willacy v. Smith (1997), 

78 Ohio St.3d 47, 51

, 

676 N.E.2d 109

. Because




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                                     January Term, 2002




Mayer’s complaint for writs of mandamus and prohibition is neither frivolous nor
obviously devoid of merit, the court of appeals erred in sua sponte dismissing his
complaint.
         {¶18} Therefore, we reverse the judgment of the court of appeals and
remand the cause for further proceedings. Fogle, 

74 Ohio St.3d at 163

, 

656 N.E.2d 1288

 (“Generally, reversal of a court of appeals’ erroneous dismissal of a complaint
based upon failure to state a claim upon which relief can be granted requires a
remand to that court for further proceedings”); see, also, McAuley, 

82 Ohio St.3d at 396

, 

696 N.E.2d 572

.2
                                                                    Judgment reversed
                                                                   and cause remanded.
         MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
                                    __________________
         John H. Jones, Richland County Special Assistant Prosecuting Attorney, for
appellant.
         Donald Rust, pro se.
                                    __________________




2. We also deny Rust’s motion to strike appellant’s reply brief.




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