[Cite as State ex rel. Royster v. Brown, 2012-Ohio-2879.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO ex rel., JUDGES:
SERGIO M. ROYSTER Hon. Patricia A. Delaney, P. J.
Hon. John W. Wise, J.
Relator Hon. Julie A. Edwards, J.
-vs- Case No. 2011 CA 00278
HON. CHARLES E. BROWN, JR.
Respondent OPINION
CHARACTER OF PROCEEDING: Petition for Writ of Mandamus
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: June 25, 2012
APPEARANCES:
For Relator For Respondent
SERGIO M. ROYSTER, PRO SE JOHN D. FERRERO
RICHLAND CORR. INSTITUTION STARK COUNTY PROSECUTOR
Post Office Box 8107 RENEE M. WATSON
Mansfield, Ohio 44901-8107 ASSISTANT PROSECUTOR
110 Central Plaza South, Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2011 CA 00278 2
Wise, J.
{¶1} Relator, Sergio M. Royster, has filed a Petition for Writ of Mandamus
requesting this Court issue a writ of mandamus requiring the trial court to resentence
Relator. Relator believes he is entitled to a reduced sentence due to the enactment of
H.B. 86. Respondent, Judge Charles Brown, has filed a motion to dismiss.
{¶2} To be entitled to the issuance of a writ of mandamus, Relator must
demonstrate: (1) a clear legal right to the relief prayed for; (2) a clear legal duty on the
respondent's part to perform the act; and, (3) that there exists no plain and adequate
remedy in the ordinary course of law. State ex rel. Master v. Cleveland (1996), 75 Ohio
St.3d 23, 26-27, 661 N.E.2d 180; State ex rel. Harris v. Rhodes (1978), 5 Ohio St.2d
41, 324 N.E.2d 641, citing State ex rel. National City Bank v. Bd. of Education (1977)
520 Ohio St.2d 81, 369 N.E.2d 1200.
{¶3} Relator was indicted in 2005 on one count of Tampering with Evidence
and one count of Possession of Cocaine. He plead guilty to those charges and was
sentenced to a period of community control. In 2007, Relator’s community control was
revoked, and Relator was sentenced to a term of imprisonment of 78 months.
{¶4} House Bill 86 was made effective beginning September 30, 2011.
Contained within H.B. 86 at Section 4 is the specific legislative intent not to make the
changes retroactive:
{¶5} “The amendments* * *apply to a person who commits an offense specified
or penalized under those sections on or after the effective date of this section and to a
person to whom division (B) of section 1.58(B) of the Revised Code makes the
amendments applicable.”
Stark County, Case No. 2011 CA 00278 3
{¶6} R.C. 1.58(B) provides: “If the penalty, forfeiture, or punishment for any
offense is reduced by a reenactment or amendment of a statute, the penalty, forfeiture,
or punishment, if not already imposed, shall be imposed according to the statute as
amended.”
{¶7} Because Relator’s sentence was already imposed prior to the effective
date of H.B. 86, he is not entitled to have his sentence reduced. For this reason,
Relator has no clear legal right to the requested relief.
{¶8} Further, we find Relator has or had an adequate remedy at law by way of
appeal. Relator filed a motion in the trial court requesting that his sentence be reduced
or modified. The trial court denied the motion from which Relator could have appealed.
For example, we have already addressed the same issue raised by Relator via a direct
appeal. See State v. Fields 2011 WL 5855008, 1 (Ohio App. 5 Dist.).
{¶9} For these reasons, we find Relator has failed to establish the necessary
elements required for the issuance of a writ of mandamus. The instant cause is
dismissed for failure to state a claim upon which relief may be granted.
By: Wise, J.
Delaney, P. J., and
Edwards, J., concur.
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JUDGES
JWW/d 0413
Stark County, Case No. 2011 CA 00278 4
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO ex rel., :
SERGIO M. ROYSTER :
:
Relator :
:
-vs- : JUDGMENT ENTRY
:
HON. CHARLES E. BROWN, JR. :
:
Respondent : Case No. 2011 CA 00278
For the reasons stated in our accompanying Memorandum-Opinion, the writ of
mandamus will not issue, and the instant cause is dismissed for failure to state a claim
upon which relief may be granted.
Costs assessed to Relator.
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JUDGES
State ex rel. Royster v. Brown
Combined Opinion