State ex rel. Curtis v. Phipps

[Cite as State ex rel. Curtis v. Phipps, 2020-Ohio-5025.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. Jamel D. Curtis, :

Relator, :
No. 19AP-387
v. :

The Honorable Karen Held Phipps, : (REGULAR CALENDAR)

Respondent. :

D E C I S I O N

Rendered on October 22, 2020

On brief: Jamel D. Curtis, pro se.

On brief: Ron O'Brien, Prosecuting Attorney, and Arthur J.
Marziale, Jr., for respondent.

IN MANDAMUS
ON RELATOR'S OBJECTIONS TO MAGISTRATE'S DECISION

BRUNNER, J.
{¶ 1} Relator, Jamel D. Curtis, pro se, an inmate of the Northeast Ohio Correctional
Institution, filed this original action for a writ of mandamus seeking an order that
respondent, the Honorable Karen Held Phipps, a judge of the Franklin County Court of
Common Pleas, provide him with a final appealable order in his underlying criminal case,
Franklin C.P. No. 04CR-1576, to reflect statutorily mandated post-release control as to
certain offenses of which he had been convicted. Having referred Curtis' complaint to a
magistrate of this Court under Civ.R. 53, we adopt the magistrate's decision granting
respondent's motion to dismiss, denying Curtis' motion for judgment on the pleadings, and
denying the requested writ.
No. 19AP-387 2

I. FACTS AND PROCEDURAL BACKGROUND
{¶ 2} In 2004, the Franklin County Grand Jury indicted Curtis on eight felony
counts in Franklin C.P. No. 04CR-1576. In June 2005, the case was tried to a jury which
returned verdicts finding Curtis guilty of aggravated murder with a firearm specification
(Count 7), two counts of lesser-included offenses of murder with a firearm specification
(Counts 1 and 2), two counts of aggravated robbery with a firearm specification (Counts 4
and 8), and one count of kidnapping (Count 5). The jury returned verdicts finding Curtis
not guilty on Counts 3 and 6 of the indictment. Following a hearing on mitigating factors,
the jury returned a verdict that the aggravated circumstances did not outweigh the
mitigating factors beyond a reasonable doubt as to Count 7.
{¶ 3} On June 28, 2005, the trial court conducted a sentencing hearing pursuant
to R.C. 2929.19 and imposed the following sentence on Curtis:
LIFE WITHOUT PAROLE as to Count Seven with an
additional Three (3) years for the use of a firearm; Fifteen (15)
years to LIFE as to Counts One and Two, these counts merge
for sentencing purposes, with an additional Three (3) years for
the use of a firearm; Ten (10) years as to Count Four with an
additional Three (3) years for the use of a firearm, Ten (10)
years as to Count Five with an additional Three (3) years for the
use of a firearm and Ten (10) years as to Count Eight with an
additional Three (3) years for the use of a firearm at the Ohio
Department of Rehabilitation and Correction. All counts are to
run consecutive with each other as well as the firearm specs for
Counts [sic] One and Count Seven. All other firearm specs
merge with the others.

(Ex. B at 2, attached to June 18, 2019 Compl.) The sentencing entry was journalized on
July 1, 2005.
{¶ 4} The record of the underlying case contains a notice of post-release control
that was signed by Curtis and his trial counsel on June 28, 2005, the day of Curtis'
sentencing hearing, and entered on the trial court's records on July 1, 2005. Pre-printed at
the bottom of the notice Curtis and his counsel signed is a note indicating that defendants
convicted of a first-degree felony or felony sex offense are subject to a mandatory five years
of post-release control.
{¶ 5} Curtis timely appealed from the judgment in the underlying criminal case,
and this Court upheld the trial court's judgment. See State v. Curtis, 10th Dist. No. 05AP-
No. 19AP-387 3

795, 2006-Ohio-4230. Curtis subsequently filed a pro se application to reopen his appeal,
but this Court rejected his alleged errors. See State v. Curtis, 10th Dist. No. 05AP-795
(Jan. 30, 2007) (memorandum decision).
{¶ 6} Curtis filed this complaint in mandamus on June 18, 2019, alleging that the
original sentencing entry in the underlying criminal case was not a final appealable order
because it did not contain any provision for post-release control as to the specified felony
offenses of which he had been convicted. Curtis asserts that he is entitled to a limited
resentencing pursuant to State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, R.C.
2505.02 and 2929.191(C). Curtis further asserts that, because there is no final appealable
order in the underlying case, his previous direct appeal was a nullity over which this Court
had no jurisdiction. He argues, therefore, that he is entitled to a new sentencing hearing
and, after a new sentencing entry is generated and journalized, a new direct appeal.
{¶ 7} This Court referred Curtis' complaint to a magistrate according to Civ.R.
53(C) and Loc.R. 13(M) of the Tenth District Court of Appeals. On July 18, 2019,
respondent filed a motion to dismiss pursuant to Civ.R. 12(B)(6) for failing to state a proper
claim. On August 1, 2019, Curtis filed an answer to respondent's motion to dismiss and, on
September 6, 2019, filed a motion for judgment on the pleadings under Civ.R. 12(C). On
September 18, 2019, respondent filed a memorandum opposing Curtis' motion for
judgment on the pleadings, to which Curtis responded by filing an answer on October 8,
2019.
{¶ 8} On November 20, 2019, the magistrate issued a decision, appended hereto,
including findings of fact and conclusions of law. The magistrate's decision sets forth a
discussion of the law governing actions in mandamus and her conclusion that Curtis is not
entitled to the requested writ as a matter of law. The magistrate next discusses the law
relating to a motion to dismiss under Civ.R. 12(B)(6) and a motion for judgment on the
pleadings. The magistrate concluded that Curtis was not entitled to judgment on the
pleadings because respondent, having filed a motion to dismiss under Civ.R. 12(B)(6), was
not required to file an answer. The magistrate recommends that this Court deny Curtis'
motion for judgment on the pleadings, grant respondent's motion to dismiss, and deny
Curtis' request for a writ of mandamus.
No. 19AP-387 4

{¶ 9} Curtis filed objections to the magistrate's decision on December 9, 2019. On
December 17, 2019, Curtis filed a "Judicial Notice of Adjudicative Facts Pursuant to Evid.R.
201," attaching thereto what purports to be a copy of the true bill of indictment in Franklin
C.P. No. 04CR-1576.
II. OBJECTIONS
{¶ 10} Curtis appears to present two objections to the magistrate's decision. Under
the heading "OBJECTION TO FACTUAL FINDING," Curtis objects to the magistrate's
second finding of fact, in which the magistrate describes the guilty verdicts the jury
returned in the underlying case and the sentence imposed as to each of those findings of
guilt.1
{¶ 11} Under the heading "OBJECTION TO CONCLUSIONS OF LAW," Curtis
objects to the following statement contained in the magistrate's decision:
As a factual matter, while [Curtis] might be entitled to a writ of
Mandamus asking the trial court to correct the sentencing
entry, the trial court's decision and entry finding [Curtis] guilty
and sentencing him is a final appealable order, and [Curtis]
exercised his right to appeal from that order.

(Objs. at 2, quoting App'x at ¶ 38.)
III. LAW AND DISCUSSION
{¶ 12} To be entitled to relief in mandamus, a relator must demonstrate (1) a clear
legal right to the relief prayed for, (2) respondent is under a clear legal duty to perform the
acts requested, and (3) relator has no plain and adequate remedy in the ordinary course of
the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28, 29 (1983); PBP, Inc. v. Ohio
Dept. of Jobs & Family Servs., 10th Dist. No. 13AP-36, 2013-Ohio-4344. "Mandamus is an

1 Curtis quotes Finding of Fact 2 of the magistrate's decision:

The trial court sentenced relator to life without parole as to the aggravated
murder count with an additional 3 years for use of a firearm, 15 years to life
as to the murder convictions (which merged for sentencing purposes) with
an additional 3 years for the use of a firearm, 10 years as to the kidnapping
conviction with an additional 3 years for use of a firearm, and 10 years for
each of the aggravated robbery convictions with an additional 3 years for the
use of a firearm.
(App'x at ¶ 23.)
No. 19AP-387 5

extraordinary remedy which is to be exercised with caution and issued only when the right
is clear." Id. at ¶ 13.
A. Objection to Magistrate's Second Finding of Fact
{¶ 13} Curtis' first objection is not well-taken. His objection merely takes issue with
the magistrate's word choice in her summary of the guilt and sentencing phases of the trial
in the underlying case. He does not demonstrate that the magistrate's summation of the
guilty verdicts or the sentencing entry is factually incorrect or materially defective. Curtis'
first objection is overruled.
B. Objection to Magistrate's Conclusion of Law
{¶ 14} We construe Curtis to have raised a second objection in arguing that the
magistrate erred in concluding that the trial court's decision and sentencing entry in the
underlying criminal case was a final appealable order that he already had appealed. He
asserts that the sentencing entry contained numerous flaws that rendered it void, including
the absence of any notice of post-release control on the first-degree felonies for which he
was convicted. Curtis relies on the Supreme Court of Ohio's holding in State v. Fischer, 128
Ohio St.3d 92, 2010-Ohio-6238, for the proposition that a sentence is void when a proper
pronouncement of post-release control is absent. We note that Curtis received a sentence
of life without the possibility of parole for which no period of post-release control would be
applicable, even though the plea form he signed mentioned post-release control.
Regardless, since he raised it, we address it.
{¶ 15} Respondent contends that Curtis' mandamus action is a collateral attack on
his criminal conviction, fails to state a claim in mandamus, and is barred by res judicata.
Respondent argues that Curtis had a plain and adequate remedy in the ordinary course of
the law in the form of the appellate process, and the fact that Curtis' appeals were
unsuccessful does not entitle him to collaterally attack his conviction through this
mandamus action.
{¶ 16} The magistrate was not persuaded by Curtis' argument that there was no final
appealable order and thus no jurisdiction for this Court to have heard Curtis' previous
appellate actions. The magistrate relied on a variety of case authority to support her legal
conclusions. However, since the time the magistrate issued her decision, the Supreme
Court has clarified the legal issues involving void and voidable sentences relating to the
No. 19AP-387 6

imposition of post-release control in State v. Harper, __ Ohio St.3d __, 2020-Ohio-2913,
issued May 14, 2020. Harper applies to Curtis' case.
{¶ 17} In Harper, the Supreme Court overruled2 prior legal precedent that
otherwise characterized as void or voidable when a trial court did not properly impose post-
release control in a felony criminal sentence, while not disturbing State v. Grimes, 151 Ohio
St.3d 19, 2017-Ohio-2927, ¶ 1, standing for the proposition that:
[T]o validly impose postrelease control when the court orally
provides all the required advisements at the sentencing
hearing, the sentencing entry must contain the following
information: (1) whether postrelease control is discretionary or
mandatory, (2) the duration of the postrelease-control period,
and (3) a statement to the effect that the Adult Parole Authority
("APA") will administer the postrelease control pursuant
to R.C. 2967.28 and that any violation by the offender of the
conditions of postrelease control will subject the offender to the
consequences set forth in that statute.

See Harper at ¶ 1 ("In State v. Grimes, we held that a trial court does not properly impose
postrelease control if the sentencing entry does not notify the offender that any violation of
the conditions of postrelease control will subject the offender to the consequences for a

2 As quoted:
Today, we realign our precedent in cases involving the imposition of
postrelease control with the traditional understanding of what constitutes a
void judgment. When a case is within a court's subject-matter jurisdiction
and the accused is properly before the court, any error in the exercise of that
jurisdiction in imposing postrelease control renders the court's judgment
voidable, permitting the sentence to be set aside if the error has been
successfully challenged on direct appeal. * * * Therefore, to the extent any
prior case conflicts with our holding today, it is overruled.
***
Our void-sentence jurisprudence has resulted in seemingly endless
litigation asking us to determine which sentencing errors must be raised on
direct appeal and which may be raised at any time. And we have not
managed to contain it to "a discrete vein of cases." It is therefore time for
this court to reevaluate the basic premise of our void-sentence jurisprudence
and the remedy for the failure to properly impose postrelease control.
***
For all of the reasons stated above, we overrule our precedent to the extent
that it holds that the failure to properly impose postrelease control in the
sentence renders that portion of a defendant's sentence void.
Harper at ¶ 4-5, 34, 40.
No. 19AP-387 7

violation provided in R.C. 2967.28. 151 Ohio St. 3d 19, 2017-Ohio-2927, 85 N.E.3d 700, ¶
1.").
{¶ 18} In Harper, the high court overruled the proposition that improper
sentencing on post-release control renders that portion of a defendant's sentence void. Id.
at ¶ 34, 40. Relying on a separation of powers analysis involving legislatively defined
jurisdiction, the high court clarified that, unless raised on appeal (at which time such
alleged error is voidable), change to the sentence is barred by res judicata. Id. at ¶ 43.3
Thus, if a defendant could have raised the issue on appeal, a later attack on the judgment
for that reason is barred by the doctrine of res judicata and no later correction may be had;
the high court reversed our order to the trial court to correct a defective sentencing entry
nunc pro tunc for error relating to post-release control. Id. at 44. Thus, based on Harper,
Curtis' action is barred by res judicata, but the application of Grimes still stands, rendering
defects short of the requirements of Grimes in Curtis' sentencing entry as to post-release
control, ineffective for the execution for post-release control as part of his sentence. Id. at
¶ 1. But since Curtis' sentence includes a life sentence without the possibility of parole, it is
more than unlikely the trial court judge will ever be faced with the operation of Grimes and
Harper with respect to attempting to execute post-release supervision of Curtis.
{¶ 19} Following Harper, we overrule Curtis' second objection.
IV. CONCLUSION
{¶ 20} Having discussed the factual and legal conclusions in the magistrate's
decision with regard to what we perceive to be two objections made by Curtis, we adopt the
factual findings of the magistrate's decision, having conducted an independent review of
her decision, the record, the applicable law, and Curtis' objections. We modify the
magistrate's legal conclusions as discussed herein based on new authority, Harper,
overruling both of Curtis' objections, denying his motion for judgment on the pleadings,

3 "Having realigned our jurisprudence with the traditional understanding of void and voidable sentences,
we caution prosecuting attorneys, defense counsel, and pro se defendants throughout this state that they
are now on notice that any claim that the trial court has failed to properly impose postrelease control in the
sentence must be brought on appeal from the judgment of conviction or the sentence will be subject to res
judicata. See R.C. 2953.02 (providing for appeals in criminal cases); 2953.08 (providing for prosecution
and defense appeals of felony sentences); 2945.67 (providing when the prosecution may appeal)." Harper
at ¶ 43.
No. 19AP-387 8

and granting respondent's motion to dismiss. Accordingly, we dismiss Curtis' complaint
for a writ of mandamus.
Motion to dismiss granted;
motion for judgment on the pleadings denied;
application for writ of mandamus dismissed.

KLATT and BEATTY BLUNT, JJ., concur.
No. 19AP-387 9

APPENDIX

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. Jamel D. Curtis, :

Relator, :

v. : No. 19AP-387

The Honorable Karen Held Phipps, : (REGULAR CALENDAR)

Respondent. :

MAGISTRATE'S DECISION

Rendered on November 20, 2019

Jamel D. Curtis, pro se.

Ron O'Brien, Prosecuting Attorney, and Arthur J. Marziale,
Jr., for respondent.

IN MANDAMUS ON MOTIONS

{¶ 21} Relator, Jamel D. Curtis, has filed this original action requesting this court
issue a writ of mandamus ordering respondent, the Honorable Karen Held Phipps, Judge
of the Franklin County Court of Common Pleas, to provide him with a final appealable order
in his underlying criminal case Franklin C.P. No. 04CR-03-1576.
Findings of Fact:
{¶ 22} 1. Relator is an inmate currently incarcerated at Northeast Ohio Correctional
Center.
No. 19AP-387 10

{¶ 23} 2. Following a trial to a jury, relator was found guilty of one count of
aggravated murder, two counts of murder, two counts of aggravated robbery, and one count
of kidnapping. The trial court sentenced relator to life without parole as to the aggravated
murder count with an additional 3 years for use of a firearm, 15 years to life as to the murder
convictions (which merged for sentencing purposes) with an additional 3 years for the use
of a firearm, 10 years as to the kidnapping conviction with an additional 3 years for use of
a firearm, and 10 years for each of the aggravated robbery convictions with an additional 3
years for the use of a firearm.
{¶ 24} 3. Relator filed a notice of appeal in this court in State v. Curtis, 10th Dist.
No. 05AP-795, 2006-Ohio-4230. This court upheld the judgment of the Franklin County
Court of Common Pleas.
{¶ 25} 4. On April 19, 2019, relator filed a motion for final appealable order in his
underlying criminal case Franklin C.P. No. 04CR-03-1576. Relator asserted there was no
final appealable order because the trial court failed to pronounce post-release control in the
sentencing entry.
{¶ 26} 5. In a decision and entry filed April 26, 2019, the trial court denied relator's
motion.
{¶ 27} 6. Thereafter, relator filed this mandamus action asking this court to order
respondent to issue a final appealable order in his underlying criminal case.
{¶ 28} 7. Respondent has filed a motion to dismiss and relator has filed a responsive
pleading.
{¶ 29} 8. Relator also filed a motion for judgment on the pleadings because, instead
of filing an answer, respondent filed a motion to dismiss.
{¶ 30} 9. The matter is currently before the magistrate on motions.
Conclusions of Law:
{¶ 31} For the reasons that follow, it is this magistrate's decision that this court
should deny relator's motion for judgment on the pleadings and grant respondent's motion
to dismiss thereby denying relator's mandamus request.
{¶ 32} The Supreme Court of Ohio has set forth three requirements which must be
met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to
the relief prayed for; (2) that respondent is under a clear legal duty to perform the act
No. 19AP-387 11

requested; and (3) that relator has no plain and adequate remedy in the ordinary course of
the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
{¶ 33} A motion to dismiss for failure to state a claim upon which relief can be
granted is procedural and tests the sufficiency of the complaint. State ex rel. Hanson v.
Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545 (1992). In reviewing the complaint, the
court must take all the material allegations as admitted and construe all reasonable
inferences in favor of the nonmoving party. Id.
{¶ 34} In order for a court to dismiss a complaint for failure to state a claim upon
which relief can be granted, it must appear beyond doubt from the complaint that relator
can prove no set of facts entitling him to recovery. O'Brien v. Univ. Community Tenants
Union, 42 Ohio St.2d 242 (1975). As such, a complaint for writ of mandamus is not subject
to dismissal under Civ.R. 12(B)(6) if the complaint alleges the existence of a legal duty by
the respondent and the lack of an adequate remedy at law for relator with sufficient
particularity to put the respondent on notice of the substance of the claim being asserted
against it, and it appears that relator might prove some set of facts entitling him to relief.
State ex rel. Boggs v. Springfield Local School Dist. Bd. of Edn., 72 Ohio St.3d 94 (1995).
For the following reasons, respondent's motion should be granted and relator's complaint
should be dismissed.
{¶ 35} In this mandamus action, by arguing there is no final appealable order,
relator seeks such in an attempt to then have the ability to file another appeal from his
criminal convictions in this court. Relator essentially argues this court did not have
jurisdiction over his initial appeal.
{¶ 36} However, in State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, the
Supreme Court of Ohio held that the failure to impose post-release control does not affect
the finality of the judgment or the appealability of it. The court found that even an illegal
sentence does not deprive the appellate court of jurisdiction to consider and correct the
error.
{¶ 37} To the extent relator seeks de novo sentencing, he is likewise not entitled to
such as his conviction and sentence remain unaffected. At most, a narrow question exists
as to whether post-release control should have been imposed on the first degree felony
counts. The sentences imposed for those counts remain unaffected. Furthermore, even as
No. 19AP-387 12

to the asserted failure of the trial court to impose post-release control, there is no absolute
entitlement to a de novo sentencing hearing. The absence of the imposition of post-release
control can be fixed without a resentencing hearing, and relator cannot show that he has
been prejudiced.
{¶ 38} As a factual matter, while relator might be entitled to a writ of mandamus
asking the trial court to correct the sentencing entry, the trial court's decision and entry
finding him guilty and sentencing him is a final appealable order, and relator exercised his
right to appeal from that order. On those grounds, he is not entitled to the writ of
mandamus he seeks and respondent's motion to dismiss should be granted
{¶ 39} Further, relator's motion for judgment on the pleadings should likewise be
denied. Because respondent filed a motion to dismiss, respondent was not also required to
file an answer. As such, relator is not entitled to judgment on the pleadings.
{¶ 40} Based on the foregoing, relator's motion for judgment on the pleadings
should be denied. Further, inasmuch as relator cannot establish his entitlement to a writ of
mandamus, his request for a writ of mandamus should be denied, and respondent's motion
to dismiss granted.

/S/ MAGISTRATE
STEPHANIE BISCA

NOTICE TO THE PARTIES

Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
error on appeal the court's adoption of any factual finding or
legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii),
unless the party timely and specifically objects to that factual
finding or legal conclusion as required by Civ.R. 53(D)(3)(b).