[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Roberts v. Marsh, Slip Opinion No. 2020-Ohio-1540.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2020-OHIO-1540
THE STATE EX REL. ROBERTS, APPELLANT, v. MARSH, JUDGE, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Roberts v. Marsh, Slip Opinion No.
2020-Ohio-1540.]
Mandamus—Procedendo—Mootness—Neither mandamus nor procedendo will
compel the performance of a duty that has already been performed—Court
of appeals’ judgment of dismissal affirmed.
(No. 2019-1469—Submitted February 11, 2020—Decided April 22, 2020.)
APPEAL from the Court of Appeals for Hamilton County, No. C-190494.
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Per Curiam.
{¶ 1} This appeal involves a request by appellant, Mallon Roberts, for a writ
of procedendo and/or mandamus to compel appellee, Hamilton County Court of
Common Pleas Judge Melba D. Marsh, to issue a corrected sentencing entry. The
First District Court of Appeals dismissed Roberts’s petition as moot. We affirm.
SUPREME COURT OF OHIO
{¶ 2} In 2005, Roberts was convicted of murder with a repeat-violent-
offender specification. State v. Roberts, 1st Dist. Hamilton No. C-050279, 2007-
Ohio-856, ¶ 1. He received a prison sentence of 15 years to life for the murder
conviction and a 10-year prison sentence for the specification, to be served
consecutively. Id. He appealed, and the First District affirmed his convictions and
sentence in 2007. Id. at ¶ 16.
{¶ 3} In its sentencing entry, the trial court indicated that Roberts would be
subject to a term of postrelease control if he were ever released from prison. In 2015,
Roberts asked the trial court to correct his sentence based on several arguments,
including that he had been improperly sentenced to postrelease control. See State v.
Roberts, 1st Dist. Hamilton No. C-150528, 2017-Ohio-1060, ¶ 3. The trial court
denied the motion, and on appeal the First District determined that the trial court erred
in imposing a term of postrelease control because Roberts had received an indefinite
prison sentence for murder. Id. at ¶ 11. The First District remanded the case,
instructing the trial court to vacate the postrelease-control sentence. Id. at ¶ 13.
{¶ 4} In March 2018, Judge Marsh vacated the postrelease-control
sentence. Roberts appealed that order, but in November 2018, the First District
dismissed his appeal for lack of a final, appealable order because the trial court had
not set forth all the information required under Crim.R. 32(C) in a single document.
See State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142,
paragraph one of the syllabus.
{¶ 5} In August 2019, Roberts filed an original action in the First District
seeking a writ of procedendo and/or mandamus to compel Judge Marsh to issue a
corrected sentencing entry that constitutes a final, appealable order. In September
2019, Judge Marsh issued a nunc pro tunc sentencing entry and moved to dismiss
Roberts’s petition as moot. The First District granted the motion to dismiss, and
Roberts appealed to this court as of right.
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January Term, 2020
{¶ 6} Because Judge Marsh performed the act Roberts requested by issuing a
corrected sentencing entry that constitutes a final, appealable order, the First District
correctly dismissed Roberts’s petition as moot. See State ex rel. Nelson v. Russo, 89
Ohio St.3d 227, 228, 729 N.E.2d 1181 (2000) (an event that causes an action to
become moot may be demonstrated by extrinsic evidence outside the record).
“Neither procedendo nor mandamus will compel the performance of a duty that has
already been performed.” State ex rel. Grove v. Nadel, 84 Ohio St.3d 252, 253, 703
N.E.2d 304 (1998). Although Roberts argues that there are several errors concerning
the nunc pro tunc sentencing entry, he has not shown that the court of appeals’
judgment of dismissal should be reversed. Roberts may challenge the substance of
the nunc pro tunc sentencing entry in an appeal from the entry itself. See id. We
therefore affirm the judgment of the court of appeals.
Judgment affirmed.
O’CONNOR, C.J., and KENNEDY, FRENCH, DEWINE, DONNELLY, and
STEWART, JJ., concur.
FISCHER, J., not participating.
_________________
Mallon Roberts, pro se.
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M.
Heenan, Assistant Prosecuting Attorney, for appellee.
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