[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. 2019-Ohio-1569.] 

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. 2019-OHIO-1569

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. 

2019-Ohio-1569.] 

Mandamus and procedendo—Appellant not entitled to extraordinary relief in 

mandamus or procedendo because trial court was permitted to correct 

appellant’s sentencing entry by using a judgment entry to vacate improperly 

included postrelease-control sanction—Court of appeals’ dismissal 

affirmed. 

(No. 2018-0593—Submitted February 19, 2019—Decided April 30, 2019.) 

APPEAL from the Court of Appeals for Hamilton County, No. C-180086. 

________________ 

Per Curiam. 

{¶ 1} Appellant, Mallon Roberts, appeals the judgment of the First District 

Court of Appeals dismissing his petition for a writ of mandamus and/or procedendo 
SUPREME COURT OF OHIO

2

against appellee, Hamilton County Common Pleas Court Judge Melba Marsh. We 

affirm. 

Facts

{¶ 2} Roberts was convicted of murder with a repeat-violent-offender 

specification, and in March 2005, a judge of the Hamilton County Common Pleas 

Court imposed an indeterminate sentence of 25 years to life in prison. State v. 

Roberts, 1st Dist. Hamilton No. C-050279, 2007-Ohio-856, ¶ 1. In 2007, the court 

of appeals affirmed the conviction and sentence on direct appeal. Id. at ¶ 16. 

{¶ 3} In 2015, Roberts filed a motion in the trial court seeking to “Correct 

Judgment Entry Pursuant to Criminal Rule 36.” State v. Roberts, 1st Dist. Hamilton 

No. C-150528, 2017-Ohio-1060, ¶ 1. He alleged that his sentence was not entered 

“in conformity with the statutes governing repeat violent offenders, indefinite 

sentences, jail-time credit, court costs, and postrelease control.” Id. at ¶ 3. Judge 

Marsh overruled the motion, and Roberts appealed. 

{¶ 4} In March 2017, the court of appeals affirmed, in part, the denial of the 

motion to correct the sentencing entry. Id. at ¶ 12. However, it held that postrelease 

control could not have been imposed for murder and remanded the matter to the 

trial court to vacate the portion of the sentencing entry relating to postrelease 

control. Id. at ¶ 13. 

{¶ 5} In February 2018, before Judge Marsh had taken any action on 

remand, Roberts filed a petition for a writ of procedendo and/or mandamus in the 

First District Court of Appeals seeking to compel her to physically convey him to 

the common pleas court for a new sentencing hearing. Judge Marsh did not convey 

Roberts to the trial court. Rather, on March 9, 2018, she issued an entry vacating 

Roberts’s postrelease-control sanction; the entry further noted that “no other aspect 

of [the] sentence is affected by this order.” 

{¶ 6} After issuing the March 9, 2018 entry, Judge Marsh moved to dismiss 

as moot Roberts’s petition for a writ of procedendo and/or mandamus. Over 
January Term, 2019 

3

Roberts’s opposition, the court of appeals granted the motion to dismiss on April 

17, 2018. The court of appeals held that the trial court was not required to conduct 

a hearing with Roberts present because the case involved the vacation of postrelease 

control and not its imposition. Roberts now appeals. 

Law and Analysis 

{¶ 7} Roberts raises several propositions of law, arguing that Crim.R. 43 

requires him to be physically present at a resentencing hearing. Within the 

propositions of law, Roberts makes three main arguments: (1) the inclusion of the 

postrelease-control sanction rendered the entire sentencing entry void, (2) Judge 

Marsh’s judgment entry, which Roberts characterizes as a “nunc pro tunc order,”1

was not the proper vehicle to vacate the postrelease-control provision because it did 

not simply correct a clerical or typographical error, and (3) a de novo sentencing 

hearing is necessary to make changes to a sentencing entry and he must be 

physically returned to open court for resentencing under Crim.R. 43. 

Mandamus 

{¶ 8} To obtain a writ of mandamus, Roberts must establish a clear legal 

right to the requested relief, a clear legal duty on Judge Marsh’s part to provide it, 

and the lack of an adequate remedy in the ordinary course of the law. State ex rel. 

Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6. The 

court of appeals granted Judge Marsh’s motion to dismiss Roberts’s petition as 

moot, but it also held that the trial court was not required to conduct an in-person 

resentencing hearing in order to vacate the term of postrelease control. 

{¶ 9} Roberts relies on cases such as State v. Bezak, 114 Ohio St.3d 94, 

2007-Ohio-3250, 868 N.E.2d 961, modified by State v. Fischer, 128 Ohio St.3d 92, 

2010-Ohio-6238, 942 N.E.2d 332, ¶ 36, and State v. Simpkins, 117 Ohio St.3d 420, 

 

1

 Although Roberts describes Judge Marsh’s March 9, 2018 entry vacating his term of postrelease 

control as a “nunc pro tunc order,” Judge Marsh disputes this characterization of the order. 
SUPREME COURT OF OHIO

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2008-Ohio-1197, 884 N.E.2d 568, for the proposition that a nunc pro tunc entry 

cannot be used to add information that was omitted from the sentencing entry. 

Those cases are inapposite, because here the trial court did not add a punishment to 

the sentence imposed at Roberts’s trial but instead deleted a punishment—

postrelease control. 

{¶ 10} The fact that Judge Marsh deleted a punishment distinguishes this 

case from cases in which punishment was added; in the latter situation, trial courts 

must hold a de novo resentencing hearing on the additional portion of the sentence. 

Fischer at paragraph two of the syllabus; see, e.g., State v. Harris, 132 Ohio St.3d 

318, 2012-Ohio-1908, 972 N.E.2d 509, paragraph one of the syllabus (failure to 

include mandatory driver’s license suspension requires resentencing on the license 

suspension only); State v. Moore, 135 Ohio St.3d 151, 2012-Ohio-5479, 985 

N.E.2d 432, syllabus (failure to include a mandatory fine requires resentencing on 

the imposition of the fine only). The failure to impose mandatory postrelease 

control does not render the entire sentence void. Fischer at ¶ 26. Only the portion 

of the sentence missing the sanction is void, and that portion of the sentencing entry 

is subject to correction in a sentencing hearing limited to the issue of postrelease 

control. Id. at ¶ 27-29. 

{¶ 11} But no resentencing hearing was required in the situation here, 

because the trial court simply deleted a postrelease-control provision that should 

not have been included in the initial sentence entry. See State ex rel. Allen v. 

Goulding, __ Ohio St.3d __, 2019-Ohio-858, __ N.E.3d __, ¶ 8-9; see also State v. 

Ortiz, 2016-Ohio-4813, 68 N.E.3d 188, ¶ 13 (7th Dist.) (trial court could properly 

delete an erroneous reference to postrelease control by a nunc pro tunc entry); State 

v. Brister, 5th Dist. Guernsey No. 13 CA 21, 2013-Ohio-5874, ¶ 19 (same). 

Procedendo 

{¶ 12} A writ of procedendo is appropriate when a court has either “refused 

to enter judgment or has unnecessarily delayed proceeding to judgment.” State ex 
January Term, 2019 

5

rel. Poulton v. Cottrill, 147 Ohio St.3d 402, 2016-Ohio-5789, 66 N.E.3d 716, ¶ 2. 

Thus, the writ will issue only upon a showing of a “clear legal right to require the 

trial court to proceed, a clear legal duty on the part of the trial court to proceed, and 

the lack of an adequate remedy in the ordinary course of the law.” State ex rel. 

Ward v. Reed, 141 Ohio St.3d 50, 2014-Ohio-4512, 21 N.E.3d 303, ¶ 9. 

{¶ 13} Here, Roberts sought a writ of procedendo to require Judge Marsh 

to convey him back to the Hamilton County Court of Common Pleas for a de novo 

resentencing hearing. In her March 2018 entry, Judge Marsh vacated the 

postrelease control, thereby implicitly denying Roberts’s request to be resentenced 

in open court. As held above, Roberts does not have a clear legal right to be 

conveyed to court for resentencing, so he does not have a clear legal right to require 

Judge Marsh to issue such an order. 

{¶ 14} For these reasons, we affirm the court of appeals’ judgment 

dismissing the requested writs of mandamus and procedendo. 

Judgment affirmed. 

O’CONNOR, C.J., and KENNEDY, FRENCH, DONNELLY, and STEWART, JJ., 

concur. 

DEWINE, J., concurs in judgment only. 

FISCHER, J., not participating. 

________________ 

Mallon Roberts, pro se. 

Joseph Deters, Hamilton County Prosecuting Attorney, and Scott M. 

Heenan, Assistant Prosecuting Attorney, for appellee. 

_________________