State ex rel. Nance v. McClelland

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State: Ohio

Court: Ohio Southern District Court

Docket No: 2012-Ohio-5083

Case Date: 10/26/2012

Plaintiff: State ex rel. Nance

Defendant: McClelland

Preview:[Cite as State ex rel. Nance v. McClelland, 2012-Ohio-5083.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98620
STATE OF OHIO, EX REL.
KEVIN NANCE
RELATOR
vs.
HONORABLE ROBERT C. MCCLELLAND
RESPONDENT
JUDGMENT:
WRIT DENIED
Writ of Mandamus
Motion No. 456974
Order No. 459387
RELEASE DATE:   October 26, 2012

FOR RELATOR
Kevin Nance, pro se
Inmate No. 521-533
Mansfield Correctional Institution
P.O. Box 788
1150 North Main Street
Mansfield, Ohio                      44901
ATTORNEYS FOR RESPONDENT
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: James E. Moss
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio                      44113

SEAN C. GALLAGHER, J.:
{¶1} Relator, Kevin Nance, is the defendant in State v. Nance, Cuyahoga C.P. No.
CR-482230,  which  is  now  assigned  to  respondent  judge.     The  January 17,            2007
sentencing entry states, in part: “Defendant is to pay court costs.”   Nance contends that
the trial court did not, however, impose court costs during his sentencing hearing and
appends what he considers to be the relevant portions of the sentencing transcript.   He
requests that this court compel respondent to correct the sentencing entry to reflect that
Nance was found “guilty without stating court cost.”   Complaint, ¶ 8.
{¶2} Respondent has filed a motion for summary judgment and argues that relief in
mandamus is not appropriate.   We agree.
{¶3}  In  Bandy  v.  Villanueva,  8th  Dist.  No.  98116,  2012-Ohio-3695,  ¶  2, we
recently observed:
It is well established that a defendant in a criminal proceeding may,
at sentencing, request the trial court to waive costs.   If the trial court denies
the request to waive costs, the defendant has an adequate remedy by way of
appeal.                                                                                      See,   e.g.,   Henderson   v.   State,                     8th   Dist.   No.   97042,
                                                                                             2011-Ohio-5679,   citing   Collins   v.   State,           8th   Dist.   No.   97111,
2011-Ohio-4964.                                                                              “[A]ny error regarding the imposition of court costs can
be challenged by appeal.   State ex rel. Whittenberger v. Clarke (2000), 89
Ohio  St.3d  207,  208,  2000-Ohio-136,  729  N.E.2d  756.”    State  ex  rel.
Galloway v. Lucas Cty. Court of Common Pleas,  130 Ohio St.3d  206,
2011-Ohio-5259, 957 N.E.2d 11, ¶ 4.

Obviously, Nance had an opportunity to request a waiver of costs at sentencing.   If, in his
judgment, the trial court’s sentencing entry did not accurately reflect the proceedings
during his sentencing hearing, he could have assigned error on direct appeal.
{¶4} Nance had an adequate remedy by way of appeal.   As a consequence, relief
in mandamus is inappropriate.
{¶5} Accordingly, respondent’s motion for summary judgment is granted.   Nance
to pay costs.    This court directs the clerk of court to serve all parties notice of this
judgment and its date of entry upon the journal as required by Civ.R. 58(B).
{¶6} Writ denied.
SEAN C. GALLAGHER, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
KENNETH A. ROCCO, J., CONCUR

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