[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 postrelease 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. : 

 

M A G I S T R A T E ' S D E C I S I O N 

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).