[Cite as State ex rel. Peterson v. Durkin, 2013-Ohio-428.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, ex rel. ) 

CHRISTOPHER STANLEY, ) 

 ) CASE NO. 12 MA 218 

 RELATOR, ) 

 ) OPINION

 - VS - ) AND

 ) JUDGMENT ENTRY

JUDGE LOU D’APOLITO, MAHONING ) 

COUNTY COMMON PLEAS COURT, ) 

 ) 

 RESPONDENT. ) 

CHARACTER OF PROCEEDINGS: Relator’s Petition for Writ of Procedendo; 

 Respondent’s Combined Answer and 

 Motion to Dismiss. 

JUDGMENT: Petition for Writ of Procedendo Denied; 

 Motion to Dismiss Granted. 

APPEARANCES: 

For Relator: Christopher Stanley, Pro Se

 #443-303 

 Mansfield Correctional Institution 

 P.O. Box 788 

 Mansfield, Ohio 44901 

For Respondent: Attorney Paul Gains 

 Prosecuting Attorney 

 Attorney Ralph Rivera 

 Assistant Prosecuting Attorney 

 21 West Boardman Street, 6th Floor 

 Youngstown, Ohio 44503 

JUDGES: 

Hon. Joseph J. Vukovich 

Hon. Cheryl L. Waite 

Hon. Mary DeGenaro 

 Dated: January 18, 2013
[Cite as State ex rel. Peterson v. Durkin, 2013-Ohio-428.]

PER CURIAM: 

¶{1} Relator Christopher Stanley has filed a petition for a writ of procedendo 

against the sentencing judge in his criminal case, alleging that the judge has failed to 

rule on his motion for resentencing. “A writ of procedendo is appropriate when a court 

has either refused to render a judgment or has unnecessarily delayed proceeding to 

judgment.” State ex rel. Weiss v. Hoover, 84 Ohio St.3d 530, 532, 705 N.E.2d 1227 

(1999). 

¶{2} As background, Relator was indicted for attempted murder, rape, and 

aggravated burglary in the year 2000. On December, 31, 2002, Relator pled no 

contest to these three counts. In a March 3, 2003 entry, the court sentenced Relator 

to five years for attempted murder, eight years for rape, and five years for aggravated 

burglary, all to run consecutively. This court affirmed the convictions upon hearing 

Relator’s direct appeal. See State v. Stanley, 7th Dist. No. 03MA42, 2004-Ohio-6801. 

¶{3} On November 20, 2009, Relator filed a motion for resentencing in the 

trial court, arguing that the sentencing entry failed to state the terms of post-release 

control. When the trial court had not ruled upon his motion by April of 2010, Relator 

filed a petition for a writ of mandamus asking this court to order the trial court to rule on 

his resentencing motion. 

¶{4} On July 1, 2010, we dismissed the complaint due to a procedural issue 

involving the absence of a statement from the institutional cashier. State v. Stanley, 

7th Dist. No. 10MA66, 2010-Ohio-3371, ¶ 9. We also discussed how issues regarding 

notice of post-release control are for the trial court, pointing out how we did not have 

the sentencing hearing transcript before us. Id. at ¶ 17. We then alternatively opined 

that Relator’s motion had not been pending overly long and concluded that mandamus 

does not lie merely because a trial court violates Sup.R. 40(A)(3), which directs a court 

to rule on a pending motion within 120 days. Id. at ¶ 18-20. 

¶{5} On December 12, 2012, Relator filed the within petition seeking a writ of 

procedendo. He asks that we order the trial court to rule on his November 20, 2009 

motion for resentencing. He states that an inordinate amount of time has now passed 

since his motion and since his last request for extraordinary relief. 
 - 2 -

¶{6} In their Combined Answer and Motion to Dismiss, the state responds that 

the trial court disposed of Relator’s motion when it issued an amended sentencing 

entry on October 18, 2012, wherein the court added in pertinent part the following 

language to the judgment: 

¶{7} “At the time of his no contest plea and during his sentencing hearing, 

Defendant was advised pursuant to O.R.C. 2929.19 and O.R.C. 2967.28 that this 

sentence includes a mandatory period of five years of post-release control to be 

supervised by the Adult Parole Authority subject to all laws, and all rules, regulations, 

and other conditions imposed by the Adult Parole Authority. Defendant was also 

advised of punishments for violations of Post Release Control and that such 

punishments are included within this sentence pursuant to O.R.C. 2929.19, 2929.141, 

and 2967.28 as follows: a period of post release control supervised by the Adult 

Parole Authority is mandatory in this case. The post release control period will be for a 

term of five years. A violation of any post release control rule or condition can result in 

the imposition of a more restrictive post release control sanction, and/or an increase in 

the duration of post release control up to the maximum duration set forth above, and/or 

re-imprisonment for up to nine months for each violation, not to exceed a cumulative 

maximum of 1⁄2 of the total prison term imposed herein. If Defendant violates the law 

or commits another felony while on a period of post release control, an additional 

prison term consisting of the maximum period of unserved time remaining on post 

release control or twelve months, whichever is greater, will be imposed and must be 

served consecutively to any prison sentence imposed for a new felony committed by 

Defendant.” 

¶{8} As the state points out, a writ of procedendo cannot compel a court to 

perform a duty that it has already performed. State ex rel. Grove v. Nadel, 84 Ohio 

St.3d 252, 253, 703 N.E.2d 304 (1998). And, the appellate court can take judicial 

notice that the requested act has been performed. Id. 

¶{9} Although the trial court did not explicitly grant Relator’s motion in a 

separate entry admitting that it failed to fully address post-release control in its original 

sentencing entry, the court did issue a new sentencing entry fully addressing the 

matter of post-release control. By issuing the amended entry to add the previously 
 - 3 -

omitted post-release control information, the trial court ruled on Relator’s November 

20, 2009 motion for resentencing, which raised these omissions. 

¶{10} When the trial court issued the new sentencing entry without holding a 

new sentencing hearing, the trial court implicitly denied any suggestion in Relator’s 

motion that he should receive a new sentencing hearing. See, e.g., SER Hughley v. 

Berens, 5th Dist. No. 2009-CA-24, 2009-Ohio-3277, ¶ 5-6 (dismissal for lack of subject 

matter jurisdiction implicitly denied motion for default judgment; so, no writ could be 

issued to compel performance of an act already completed). Consequently, there is 

no motion left for the trial court to rule on. As such, Relator’s request for a writ of 

procedendo is denied. 

¶{11} Since Relator’s petition makes no mention of the amended sentencing 

entry, it appears he was unaware of its issuance. This may be because notice of the 

entry was sent to two attorneys, who previously represented him, but was not sent to 

him in prison from wherein he was acting pro se. Because the motion for resentencing 

was filed pro se, notice should have been sent to him personally as well. As such, we 

hereby order the clerk to issue new notice of the trial court’s October 18, 2012 

amended sentencing entry to Relator and to note service on the docket according to 

the date he was served in prison. 

¶{12} Final Order. Clerk to serve notice as provided by the Civil Rules. 

Vukovich, J., concurs. 

Waite, J., concurs. 

DeGenaro, P.J., concurs.