[Cite as State ex rel. Ellis v. Burnside, 2017-Ohio-658.]

Court of Appeals of Ohio 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 105120

STATE OF OHIO, EX REL. 

LDDARYL ELLIS 

RELATOR 

vs. 

THE HONORABLE JUDGE JANET R. BURNSIDE 

RESPONDENT 

JUDGMENT:

WRIT DENIED 

Writ of Mandamus 

Motion No. 502292 

Order No. 503728 

RELEASE DATE: February 22, 2017 
FOR RELATOR

Lddaryl Ellis, pro se 

Inmate No. A641-151 

Trumbull Correctional Institution 

P.O. Box 901 

Leavittsburg, Ohio 44430 

ATTORNEYS FOR RESPONDENT

Michael C. O’Malley 

Cuyahoga County Prosecutor 

By: James E. Moss 

Assistant County Prosecutor 

The Justice Center, 8th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
PATRICIA ANN BLACKMON, J.: 

{¶1} Lddaryl Ellis has filed a complaint for a writ of mandamus through which 

he seeks an order that requires Judge Janet R. Burnside to conduct a resentencing hearing 

in State v. Ellis, Cuyahoga C.P. No. CR-12-568532. Ellis argues that resentencing is 

mandated because Judge Burnside failed to impose postrelease control with regard to 

Count 9 (felonious assault — R.C. 2903.11(A)(2)) and Count 14 (aggravated riot — R.C. 

2917.02(A)(2)). Judge Burnside has filed a motion for summary judgment that is 

granted for the following reasons. 

{¶2} The Supreme Court of Ohio, in State v. Qualls, 131 Ohio St.3d 499, 

2012-Ohio-1111, 967 N.E.2d 718, established that a trial court is permitted, through a 

nunc pro nunc entry, to correct the original sentencing entry so long as postrelease control 

was properly imposed at the sentencing hearing. 

But when the notification of postrelease control was properly given at the 

sentencing hearing, the essential purpose of notice has been fulfilled and 

there is no need for a new sentencing hearing to remedy the flaw. The 

original sentencing entry can be corrected to reflect what actually took place 

at the sentencing hearing, through a nunc pro tunc entry, as long as the 

correction is accomplished prior to the defendant’s completion of his prison 

term. 

 

(Emphasis added.) Id. at ¶ 24. 

{¶3} Attached to Judge Burnside’s motion for summary judgment is a copy of 

the transcript of the sentencing hearing, held on April 12, 2013, which demonstrates that 
Ellis was informed that postrelease control was applicable to Count 9 and also notified of 

the possible penalty involved for violation of postrelease control. (Tr. 730, exhibit E.) 

{¶4} In addition, attached to Judge Burnside’s motion for summary judgment is a 

copy of a nunc pro tunc sentencing journal entry, journalized on November 29, 2016, 

which demonstrates that postrelease control was imposed upon Ellis with regard to Count 

9 in the corrected sentencing entry. (Exhibit D.) Ellis’s request for a writ of 

mandamus is moot. Relief is unwarranted because mandamus will not compel the 

performance of a duty that has already been performed. State ex rel. Hopson v. 

Cuyahoga Cty. Court of Common Pleas, 135 Ohio St.3d 456, 2013-Ohio-1911, 989 

N.E.2d 49. 

{¶5} It must also be noted that this court, in State v. Ellis, 8th Dist. Cuyahoga No. 

99830, 2014-Ohio-116, reversed Ellis’s conviction and sentence in part and remanded the 

appeal to vacate the conviction for Count 14. Upon remand and resentencing, Ellis’s 

conviction for Count 14 was vacated. (Exhibit B.) Because no sentence exists with 

regard to Count 14, Judge Burnside possesses no duty to inform Ellis of the possibility of 

postrelease control with regard to Count 14. 

{¶6} Accordingly, we grant Judge Burnside’s motion for summary judgment. 

Costs to Ellis. The court directs the clerk of courts to serve all parties with notice of this 

judgment and the date of entry upon the journal as required by Civ.R. 58(B). 

{¶7} Writ denied. 
PATRICIA ANN BLACKMON, JUDGE 

MARY EILEEN KILBANE, P.J., and 

EILEEN T. GALLAGHER, J., CONCUR