[Cite as State ex rel. Huber v. O'Neill, 2012-Ohio-6043.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
: Appellate Case No. 2011-CA-91
STATE OF OHIO, ex rel., JOSEPH :
HUBER, JR. :
: Tr. Ct. Case No. 05-CR-458
Petitioner :
:
v. :
:
HONORABLE JUDGE RICHARD J. :
O’NEILL :
:
Respondent :
DECISION AND FINAL JUDGMENT ENTRY; WRIT OF MANDAMUS
December 21, 2012
PER CURIAM:
{¶ 1} This matter is before the court on the November 23, 2011 petition for a writ
of mandamus filed by Joseph Huber, Jr. Huber seeks an order from this Court compelling
Respondent, Judge Richard J. O’Neill of the Clark County Court of Common Pleas, to proceed to
judgment on Huber’s June 27, 2011 motion to vacate a void sentence, which he filed in Clark
County Common Pleas Court Case No. 05-CR-458.
{¶ 2} The parties have filed briefs pursuant to Loc.App.R. 8(F)(4). This matter is
now ripe for review.
{¶ 3} A writ of mandamus is an extraordinary remedy that only applies in a limited
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set of circumstances. In re State ex rel. Watkins, 2d Dist. Greene No. 07-CA-80, 2008-Ohio-3877,
¶ 6, quoting Davenport v. Montgomery Cty., 2d Dist. Montgomery No. 21196, 2006-Ohio-2909, ¶ 4.
To be entitled to the requested writ of mandamus, Huber must establish a clear legal right to the
relief requested, a clear legal duty on the part of the respondent to act, and the lack of an adequate
remedy in the ordinary course of law. State ex rel. Blandin v. Beck, 114 Ohio St.3d 455,
2007-Ohio-4562, 872 N.E.2d 1232, ¶ 13.
{¶ 4} Huber claims that he is entitled to a ruling on his June 27, 2011 motion to
vacate a void sentence, which he filed in Clark County Common Pleas Court Case No. 05-CR-458.
In relevant part, the record shows that Huber was sentenced to four years imprisonment in case no.
05-CR-458 on March 31, 2006, after pleading guilty to robbery, a felony of the second degree;
possession of criminal tools, a felony of the fifth degree; and breaking and entering, a felony of the
fifth degree. He was further ordered to pay restitution and all costs of prosecution.
{¶ 5} In his entry of conviction and sentence, Respondent advised Huber that he
was subject to mandatory postrelease control “up to a maximum of three years, as well as the
consequences for violating conditions of post release control imposed by the Parole Board.”
{¶ 6} Huber concedes that he has completed the sentence associated with the term
of postrelease control imposed, although he remains in prison on subsequent, unrelated charges.
Nevertheless, Huber argues that his sentence in 05-CR-458 is void because Respondent improperly
imposed an indefiinite term of “up to three years” of postrelease control, when a definite term was
required. He demands that his entire sentence be vacated in line with State v. Bezak, 114 Ohio
St.3d 94, 2007-Ohio-3250, 868 N.E. 2d 961.
{¶ 7} In State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, the
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Supreme Court modified Bezak to hold that only that portion of the sentence dealing with
postrelease control is void when terms of postrelease control are improperly imposed. Id. at ¶ 26.
As a result, “[any] new sentencing hearing to which an offender is entitled under Bezak is limited to
proper imposition of postrelease control.” Id. at ¶ 29. Contrary to Huber’s argument, Respondent
contends that the only part of Huber’s sentence that is void is that portion imposing postrelease
control. Respondent further argues that he lacks authority to resentence Huber to impose
postrelease control because Huber has completed his prison sentence for those convictions subject
to the improper postrelease control terms. See State v. Arnold, 189 Ohio App.3d 238,
2009-Ohio-3636, 938 N.E.2d 45 (2d Dist.). On this basis, Respondent contends that he has no
legal duty to rule on Huber’s June 27, 2011 motion.
{¶ 8} Whether Respondent has a legal duty to rule on Huber’s motion to vacate a
void sentence is a different question from whether Respondent should grant Huber’s motion.
Mandamus can be used to compel a court to exercise its judgment or to discharge a function, but it
may not issue to compel a court to enter a specific judgment. State ex rel. Rashada v. Pianka, 112
Ohio St.3d 44, 2006-Ohio-6366, 857 N.E.2d 1220, ¶ 3. Both parties here appear to want this Court
to enforce a particular judgment on the June 27, 2011 motion. We decline to do so. However, the
court does not believe ruling on Huber’s motion to be a vain act despite Respondent’s argument to
the contrary, where such ruling promotes resolution and finality with respect to issues currently
pending on the trial court’s docket. See State ex rel. Richardson v. Suster, 8th Dist. Cuyahoga No.
95579, 2011-Ohio-1753, ¶ 10. Respondent has not ruled on Huber’s motion for more than one
year, and Huber is entitled to a ruling.
{¶ 9} Accordingly, Huber’s petition for a writ of mandamus is GRANTED. IT IS
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HEREBY ORDERED that Respondent, Judge Richard J. O’Neill, rule on the June 27, 2011 motion
to vacate a void sentence pending in Clark County Common Pleas Court Case No. 05-CR-458
forthwith. Each party shall bear his own costs in this action.
{¶ 10} SO ORDERED.
THOMAS J. GRADY, Presiding Judge
MARY E. DONOVAN, Judge
MICHAEL T. HALL, 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).
THOMAS J. GRADY, Presiding Judge
Copies to:
Andrew Pickering
Attorney for Respondent
P.O. Box 1608
Springfield, Ohio 45501 Joseph Huber, Jr., #518-135
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Petitioner, Pro Se
P.O. Box 5500
Chillicothe, Ohio 45601
CA3/JN
[Cite as State ex rel. Huber v. O'Neill, 2012-Ohio-6043.]