[Cite as State ex rel. Priest v. Dankof, 2014-Ohio-540.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
: Appellate Case No. 25978
STATE OF OHIO, EX REL., GREGORY :
L. PRIEST :
:
Petitioner/Relator :
:
v. :
:
JUDGE STEVEN DANKOF, :
MONTGOMERY COUNTY COMMON :
PLEAS COURT JUDGE :
Respondent
DECISION AND FINAL JUDGMENT ENTRY
February 13, 2014
PER CURIAM:
{¶ 1} This matter is before the court on the complaint for a writ of
mandamus filed by Gregory Priest. Priest seeks an order from this Court compelling
Respondent, Judge Steven K. Dankof of the Montgomery County Common Pleas Court, to
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issue a final judgment entry of conviction in case no. 09-CR-3231. Priest argues that the
original “Termination Entry” filed August 24, 2010 does not bear the signature of the judge
1
Judge Dankof was appointed in December 2010 to fill the vacancy of retiring
Judge A. J. Wagner.
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presiding over his criminal proceedings, Judge A. J. Wagner, and is, therefore, not a final
appealable order under R.C. 2505.02 and Crim.R. 32(C). Priest further argues that the
“Nunc Pro Tunc/08-24-10; Termination Entry” filed January 14, 2011 is also not a final
appealable order because the entry was not signed by the judge presiding over his
criminal proceedings but was signed by Judge Mary Wiseman “for Judge A. J. Wagner.”
{¶ 2} Respondent has moved to dismiss Priest’s petition.
{¶ 3} “[A] judgment of conviction is a final order subject to appeal under R.C.
2505.02 when the judgment entry sets forth (1) the fact of the conviction, (2) the sentence, (3) the
judge's signature, and (4) the time stamp 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, ¶ 14. Priest argues that his
original judgment of conviction filed on August 24, 2010 does not bear a judge’s signature but
instead a “figure eight” printed on the line where the judge’s signature goes. Priest has attached a
copy of the judgment entry to his complaint. While it may not be legible, a signature is present on
the entry. Priest has not provided this Court with any controlling authority for his position that a
purportedly illegible signature of a judge prevents a sentencing entry from being final and
appealable. Bandy v. Villanueva, 8th Dist. Cuyahoga No. 98133, 2012-Ohio-3581, ¶ 6 (no clear
legal right to relief in mandamus on the argument that sentencing entry is not final because signature
of respondent judge is illegible). Moreover, Priest had the opportunity on direct appeal to
challenge the sufficiency of the August 24, 2010 judgment entry. Id. at ¶ 7 (adequate remedy by
way of appeal exists to challenge the propriety and sufficiency of sentencing entry containing an
allegedly illegible signature by a judge). This Court affirmed Priest’s conviction and sentence on
September 16, 2011. State v. Priest, 2d Dist. Montgomery No. 24225, 2011-Ohio-4694.
[Cite as State ex rel. Priest v. Dankof, 2014-Ohio-540.]
{¶ 4} Next, Priest argues that the nunc pro tunc judgment entry issued on January
14, 2011 is not a final appealable order because it was not signed by the judge presiding over his
criminal proceedings. The nunc pro tunc entry was filed to correct the omission of Priest’s manner
of conviction from his August 24, 2010 judgment entry of conviction. The Supreme Court of Ohio
has held that “the technical failure to comply with Crim.R. 32(C) by not including the manner of conviction * * * is not a violation of a
statutorily mandated term, so it does not render the [judgment of conviction] a nullity.” (Emphasis sic.) State ex rel.
DeWine v. Burge, 128 Ohio St.3d 236, 2011-Ohio-235, 943 N.E.2d 535, ¶ 19. This type
of omission is clerical in nature, and the trial court is permitted to correct it through a nunc
pro tunc entry. Id. at ¶ 18. Moreover, the supreme court has held that “[a] nunc pro tunc judgment
entry issued for the sole purpose of complying with Crim.R. 32(C) to correct a clerical omission in a final judgment entry is not a new final order
from which a new appeal may be taken.” State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d
142, paragraph two of the syllabus. The original judgment entry of conviction remains the final appealable order in the case. Id. at ¶ 16.
{¶ 5} Priest appears to concede that the January 14, 2011 nunc pro tunc judgment
entry is not a final appealable order under Lester. See Opposition to Motion to Dismiss, Dec. 9,
2013 (“I do not oppose the fact that even Respondent’s counsel states that the nunc pro tunc entry is
now consider [sic] obsolete because of the Lester decision”). He argues, however, that because the
nunc pro tunc entry only corrected the manner of conviction, the original judgment entry in August
2010 remains interlocutory due to the lack of a judge’s signature. This argument lacks merit
insofar as we have found that the original judgment entry constitutes a final appealable order.
{¶ 6} Furthermore, we find that the nunc pro tunc entry satisfies the signature
requirement of Crim.R. 32(C) because it contains a signature of a judge signing on behalf of the
judge presiding over Priest’s criminal case. See State v. Rye, 9th Dist. No. 26576, 2013-Ohio-1774,
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¶ 10 (the ministerial act of signing a judgment entry of conviction may be performed by a judge
signing on the sentencing judge’s behalf when the sentencing judge has already imposed sentence,
and the entry reflects the sentence and the sentencing judge’s name).
{¶ 7} Accordingly, Respondent’s motion to dismiss is SUSTAINED.
Priest’s complaint for a writ of mandamus is DENIED, and this matter is DISMISSED.
SO ORDERED.
JEFFREY E. FROELICH, Presiding Judge
MIKE FAIN, Judge
MARY E. DONOVAN, Judge
To The Clerk: Within three (3) days of entering this judgment on the journal, you are directed to serve on all parties not in default for
failure to appear notice of the judgment and the date of its entry upon the journal, pursuant to Civ.R. 58(B).
JEFFREY E. FROELICH, Presiding Judge
[Cite as State ex rel. Priest v. Dankof, 2014-Ohio-540.]
Copies to:
Gregory Priest, #636-496
Relator
P.O. Box 69
London, Ohio 43140
Carley Ingram
Attorney for Respondent
301 W. Third Street, 5th Floor
Dayton, Ohio 45422
CA3/JN
Issue date: February 13, 2014