[Cite as Gregley v. Friedman, 2014-Ohio-218.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100601
S/O EX REL., DUANE GREGLEY
RELATOR
vs.
STUART FRIEDMAN, JUDGE
RESPONDENT
JUDGMENT:
WRIT DENIED
Writ of Procedendo
Order No. 471390
Motion No. 470356
RELEASE DATE: January 21, 2014
FOR RELATOR
Duane Gregley
Inmate No. 358-808
Richland Correctional Institution
P.O. Box 8107
Mansfield, OH 44901
ATTORNEYS FOR RESPONDENT
Timothy J. McGinty
Cuyahoga County Prosecutor
By: James E. Moss
Assistant County Prosecutor
9th Floor Justice Center
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:
{¶1} Relator Duane Gregley filed a complaint seeking a writ of procedendo to
compel the respondent judge to issue a “final, appealable order” in his criminal case
styled State v. Gregley, Cuyahoga C.P. No. CR-358368. Gregley contends that the court’s
1998 order was not a final, appealable order because it did not properly impose
postrelease control. Respondent has moved for summary judgment, which Gregley has
opposed. For the reasons that follow, we grant respondent’s motion for summary
judgment.
{¶2} The writ of procedendo is an order from a court of superior jurisdiction to
one of inferior jurisdiction to proceed to judgment. Yee v. Erie Cty. Sheriff’s Dept., 51
Ohio St.3d 43, 553 N.E.2d 1354 (1990). Procedendo is appropriate when a court has
either refused to render a judgment or has unnecessarily delayed proceeding to judgment.
State ex rel. Watkins v. Eighth Dist. Court of Appeals, 82 Ohio St.3d 532, 696 N.E.2d
1079 (1998). However, the writ will not issue to control what the judgment should be,
nor will it issue for the purpose of controlling or interfering with ordinary court
procedure. Thus, procedendo will not lie to control the exercise of judicial discretion.
Moreover, it will not issue when there is an adequate remedy at law. State ex rel. Bd. of
State Teachers Retirement Sys. of Ohio v. Davis, 113 Ohio St.3d 410, 2007-Ohio-2205,
865 N.E.2d 1289, ¶ 43 (“procedendo is not appropriate when the party seeking the writ
has an adequate remedy in the ordinary course of law, e.g., “appeal”).
{¶3} Despite Gregley’s reliance on State ex rel. Carnail v. McCormick, 126 Ohio
St.3d 124, 2010-Ohio-2671, 931 N.E.2d 110, the Ohio Supreme Court subsequently held
that, “[a]lthough the doctrine of res judicata does not preclude review of a void sentence,
res judicata still applies to other aspects of the merits of a conviction, including the
determination of guilt and the lawful elements of the ensuing sentence.” State v.
Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, paragraph two of the
syllabus. The court in Fischer rejected the same argument that Gregley is advancing in
this action. Specifically, the court held:
[W]e reject Fischer’s claim that there was no final, appealable order in this
case.
Fisher’s theory is that because the trial court did not properly apply
postrelease-control sanctions, his sentence was void under [State v.] Bezak,
[114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961]. Because his
sentence was void, he contends there was no sentence and without a
sentence, no conviction and no final order. * * *
Nothing in Baker discusses void or voidable sentences. Rather, the syllabus
speaks only to the requirement that the judgment of conviction set forth “the
sentence” in addition to the other necessary aspects of the judgment. The
judgment in this case did set forth the sentence. The fact that the sentence
was illegal does not deprive the appellate court of jurisdiction to consider
and correct the error. In fact, R.C. 2953.08(G)(2)(b) expressly authorizes
a reviewing court to modify or vacate any sentence that is “contrary to law.”
Clearly, no such authority could exist if an unlawful sentence rendered a
judgment nonfinal and unappealable.
Id. at ¶ 37-39.
{¶4} The court held that void sentences are subject to appellate review.
Therefore, Gregley’s contention that the improper imposition of postrelease control would
render the 1998 sentence a nonfinal, unappealable order is incorrect and contrary to
holding in Fischer.
{¶5} Further, Gregley has already challenged the imposition of postrelease
control through both direct appeal and collateral attacks. E.g., State v. Gregley, 8th
Dist. Cuyahoga No. 97469, 2012-Ohio- 3450, appeal not accepted State v. Gregley, 8th
Dist. Cuyahoga No. 97469, 2013-Ohio-158; State v. Gregley, 8th Dist. Cuyahoga No.
75032, 1999 Ohio App. LEXIS (Dec. 16, 1999); motion for delayed appeal denied State
v. Gregley, 88 Ohio St.3d 1514, 728 N.E.2d 402; State ex rel. Duane Gregley v. Stuart
Friedman, Judge, 8th Dist. Cuyahoga No. 96255, 2011-Ohio-2293, dismissed State ex rel.
Gregley v. Friedman, 130 Ohio St.3d 1473, 2011-Ohio-6124, 957 N.E.2d 1166.
Gregley also filed an application to reopen pursuant to App.R. 26(B), which this court
denied. State v. Gregley, 8th Dist. Cuyahoga No. 75032, 1999 Ohio App. LEXIS 6045,
reopening disallowed Cuyahoga Motion No. 315427, 2000 Ohio App. LEXIS 4997
(Oct. 18, 2000).
{¶6} In this action, Gregley asserts that his 1998 sentence is void because
postrelease control was not properly imposed for his convictions for attempted aggravated
murder, carrying a concealed weapon, and having a weapon while under disability. In
State ex rel. Gregley, 8th Dist. Cuyahoga No. 96255, 2011-Ohio-2293, ¶ 6, this court
denied Gregley’s petition for a writ of procedendo to compel the judge to impose
postrelease control in the underlying case because Gregley had an adequate remedy at
law. Thereafter, the trial court conducted a hearing on October 7, 2011, where the court
imposed postrelease control terms for his attempted aggravated murder and having
weapons while under disability convictions. Gregley filed a direct appeal that included a
challenge to the trial court’s imposition of postrelease control on these convictions. This
court sustained Gregley’s error relating to the court’s imposition of postrelease control
and found that the trial court had no jurisdiction to impose postrelease control for
convictions where the prison sentence had already been served. Gregley, 8th Dist.
Cuyahoga No. 97469, 2012-Ohio-3450, ¶ 12 (finding “Gregley has completed his
sentences on the charges of attempted aggravated murder and having a weapon while
under disability and is not subject to postrelease control.”); accord State v. Holdcroft, Slip
Opinion No. 2013-Ohio-5014, paragraph three of the syllabus (“A trial court does not
have the authority to resentence a defendant for the purpose of adding a term of
postrelease control as a sanction for a particular offense after the defendant has already
served the prison term for that offense.”). Accordingly, Gregley’s complaint is barred
by res judicata.
{¶7} Respondent’s motion for summary judgment is granted, and Gregley’s
application for writ of procedendo is denied. Costs assessed against relator. The court
directs the clerk to serve upon the parties notice of this judgment and its date of entry
upon the journal. Civ.R. 58(B).
{¶8} Writ denied.
__________________________________________
TIM McCORMACK, JUDGE
EILEEN A. GALLAGHER, P.J., and
MARY EILEEN KILBANE, J., CONCUR