[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Winfree v. McDonald, Slip Opinion No. 2016-Ohio-8098.]

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 De cisions, 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.

S LIP O PINION N O . 2016-O HIO -8098

T HE S TATE EX REL . W INFREE , A PPELLANT , v. M C D ONALD , J UDGE , A PPELLEE .

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Winfree v. McDonald, Slip Opinion No. 2016-Ohio-8098.] Mandamus and procedendo—Appellant failed to show that he has clear legal right to de novo resentencing hearing—C ourt of appeals’ judgment affirmed. (No. 2015-1525—Submitted August 16, 2016—Decided December 14, 2016.)

A PPEAL from the Court of Appeals for Lucas County, No. L-14-1222.

________________ Per Curiam. {¶ 1} Appellant, Edward A. Winfree, a ppeals from the judgment of the Sixth District Court of Appeals denying in part his petition for writs of mandamus and procedendo. Because Winfree has not s hown that he has a clear legal right to a de novo resentencing hearing, we affi rm the court of appeals’ judgment.S UPREME C OURT OF O HIO

2 Facts {¶ 2} Winfree is currently incarcerated at the Toledo Correctional Institution, serving several sentences for multip le felony convictions he received in
Lucas and Erie Counties. Relevant to this appeal, in 2011, the Lucas County Court of Common Pleas accepted Winfree’s no-c ontest pleas to—and convicted him of— two counts of vehicular assault. The ju dgment entry sentenced Winfree to eight years in prison and ordered him to “pay re stitution in an amount to be determined at a hearing.” {¶ 3} Winfree did not file a timely notice of appeal from the trial court’s judgment, and the court of a ppeals denied his motion for a delayed appeal. In May 2014, he filed a “Motion to Correct Void and Illegal Sentence” in the trial court. He argued that his sentencing entry was not a final, appealable order because it “left
unresolved the issue of restitution.” On September 24, 2014, the trial court denied Winfree’s motion; his appeal from that decision is pending. {¶ 4} On October 27, 2014, Winfree filed a “Petition for Writ of Mandamus
and/or Procedendo” in the Sixth District Court of Appeals to compel appellee, Judge Frederick H. McDonald, to hold a de novo resentencing hearing and enter a final, appealable order. The court of appeals issued an alternative writ, and Judge McDonald moved to dismiss the petition fo r failure to state a claim under Civ.R. 12(B)(6). {¶ 5} The court of appeals denied Judge McDonald’s motion to dismiss. The court held that Winfree’s original sentencing entry was not a final, appealable order because it failed to specify the amount of restitution ordered as part of his sentence. The court then granted in part and denied in part the requested writs and
held that Winfree is not entitled to a de novo resentencing hearing to correct the error. Instead, the court of appeals ordered the trial court to “issue a sentencing entry that complies with Crim.R. 32(C) and constitutes a final appealable order.”January Term, 2016

3 6th Dist. Lucas No. L-14-1222, ¶ 14 (Aug. 13, 2015). The court also suggested that the trial court had two options for remedying the error:

If, upon remand, the trial court el ects to omit the portion of the sentence ordering restitution, it must issue a nunc pro tunc judgment entry eliminating the language that requires Winfree to “pay restitution in an amount to be determined at [a] hearing.” If, however, the trial court elects to retain the portion of the sentence ordering restitution, the court must impose the amount of restitution at a limited resentencing hearing “in open court” pursuant to R.C. 2929.18(A)(1).

(Emphasis and brackets sic.) Id. at ¶ 13. {¶ 6} On August 31, 2015, the trial court entered a nunc pro tunc order “correcting the entry filed June 22, 2011.” The nunc pro tunc order omits the language in the 2011 entry ordering Winfree to pay restitution. {¶ 7} On September 15, 2015, Winfree filed a notice of appeal from the court of appeals’ judgment. In three pr opositions of law, he argues that he is entitled to a de novo resentencing hearing a nd that a nunc pro tunc entry cannot be issued to correct the error in the trial court’s original sentencing entry. In June 2016, Winfree filed a motion for judgment on the pleadings, asking that this court expedite its review of his appeal. Analysis I. Scope of Winfree’s appeal {¶ 8} Winfree argues that the court of appeals erred when it suggested that
the trial court could cure the error in the original judgment entry of conviction by issuing a nunc pro tunc judgment entry. However, he does not have standing to appeal as to that issue because an “ ‘[a]ppeal lies only on behalf of a party aggrievedS UPREME C OURT OF O HIO

4 by the final order appealed from. Appeals are not allowed for the purpose of settling abstract questions, but only to correct erro rs injuriously affecting the appellant.’ ” State ex rel. Gabriel v. Youngstown , 75 Ohio St.3d 618, 619, 665 N.E.2d 209 (1996), quoting Ohio Contract Carriers Assn., Inc. v. Pub. Util. Comm. , 140 Ohio St. 160, 42 N.E.2d 758 (1942), syllabus. {¶ 9} The only portion of the court of appeals’ judgment “injuriously affecting” Winfree is the ruling that he is not entitled to a de novo resentencing hearing. Because it exceeded the scope of the relief sought, the appellate court’s suggestion that the trial court issue a nunc pro tunc order to correct its error was merely dicta, not a legally binding portion of the holding. See Cosgrove v. Williamsburg of Cincinnati Mgt. Co., Inc. , 70 Ohio St.3d 281, 284, 638 N.E.2d 991 (1994). Thus, we will not consider the propr iety of the court of appeals’ suggestion that a nunc pro tunc order could be used to correct the error in the trial court’s original sentencing entry. II. Challenge to partial denial of writ of mandamus {¶ 10} To be entitled to extraordinary relief in mandamus, Winfree must establish a clear legal right to the requested relief, a clear legal duty on the part of the trial court 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-Ohio69, 960 N.E.2d 452, ¶ 6. Further, he must pr ove his entitlement to the writ by clear and convincing evidence. Id . at ¶ 13. {¶ 11} The court of appeals correctly denied Winfree a writ of mandamus to the extent he sought to compel the trial court to hold a de novo resentencing hearing to correct the incomplete restitution order in its original judgment entry of conviction. “[T]he remedy for a failure to comply with Crim.R. 32(C) is a revised sentencing entry rather than a new hearing.” State ex rel. Alicea v. Krichbaum , 126 Ohio St.3d 194, 2010-Ohio-3234, 931 N.E.2d 1079, ¶ 2, citing State ex rel. Culgan v. Medina Cty. Court of Common Pleas , 119 Ohio St.3d 535, 2008-Ohio-4609, 895January Term, 2016

5 N.E.2d 805, ¶ 8-10. Accordingly, Winfree failed to demonstrate that he has a clear legal right to a de novo resentencing hearing. {¶ 12} As the court of appeals observed, had the trial court elected to correct, rather than omit, the flawed restitution order included in the original judgment entry of conviction, it would ha ve been required to hold a resentencing hearing for the limited purpose of determining and imposing a specific amount of
restitution. See R.C. 2929.18(A)(1). Thus, any error by the trial court in arriving at the new judgment is a matter for direct appeal. {¶ 13} For the foregoing reasons, we affirm the judgment of the Sixth District Court of Appeals. Winfree’s motion for judgment on the pleadings is
denied as moot. Judgment affirmed
and motion denied.
O’C ONNOR , C.J., and P FEIFER , O’D ONNELL , L ANZINGER , K ENNEDY , F RENCH , and O’N EILL , JJ., concur.

_________________ Edward A. Winfree, pro se. Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

_________________