[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State 

ex rel. Hunter v. Binette, Slip Opinion No. 2018-Ohio-2681.] 

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. 2018-OHIO-2681

THE STATE EX REL. HUNTER, APPELLANT, v. BINETTE, JUDGE, APPELLEE. 

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as State ex rel. Hunter v. Binette, Slip Opinion No. 

2018-Ohio-2681.] 

Mandamus—Relator has misconstrued docket sheets—Judgment of dismissal 

affirmed. 

(No. 2017-1062—Submitted January 23, 2018—Decided July 11, 2018.) 

APPEAL from the Court of Appeals for Erie County, No. E-17-030. 

________________ 

 Per Curiam. 

{¶ 1} Appellant, Sylvester J. Hunter, appeals the decision of the Sixth 

District Court of Appeals denying his complaint for a writ of mandamus against 

appellee, Erie County Common Pleas Court Judge Roger E. Binette. Also pending 

are Hunter’s motions for judgment on the pleadings and for an order to the clerk of 

courts, as well as Judge Binette’s motion to dismiss. For the reasons set forth 

below, we deny the motions and affirm the judgment of the court of appeals. 
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Background

{¶ 2} Hunter was convicted by a jury of one count of rape. On July 7, 2005, 

Judge Binette held a sentencing hearing, at which he sentenced Hunter to a term of 

imprisonment of 10 to 25 years. Hunter appealed his conviction, which was 

affirmed. State v. Hunter, 169 Ohio App.3d 65, 2006-Ohio-5113, 861 N.E.2d 898 

(6th Dist.). 

{¶ 3} On June 26, 2017, Hunter filed an original action for a writ of 

mandamus in the Sixth District Court of Appeals to compel Judge Binette to vacate 

his sentence and conduct a new sentencing hearing. Hunter alleged that his 

sentence was void for at least two reasons. 

{¶ 4} First, Hunter alleged that the trial court unlawfully declined to show 

him his presentence-investigation report (“PSI”) before sentencing and that 

therefore, he was never properly sentenced. He invoked R.C. 2951.03(B)(1), which 

instructs that the trial court, “at a reasonable time before imposing sentence, shall 

permit the defendant or the defendant’s counsel to read the report.” Citing the 

appellate court’s docket sheet showing when the trial court certified the PSI report 

to the court of appeals, he claimed that a May 30, 2006 entry is proof that he and 

his attorney were not permitted to see the PSI before his 2005 sentencing. 

{¶ 5} Hunter also alleged that the July 8, 2005 entry on the trial court’s 

docket showing the filing of his judgment of conviction and a May 18, 2006 Sixth 

District judgment entry ordering his lower-court record for appeal prove that he 

was improperly convicted of the same offense in two different courts. 

{¶ 6} On June 30, 2017, the court of appeals sua sponte dismissed the 

complaint as “frivolous.” 6th Dist. Erie No. E-17-030, ¶ 2, 8. The court of appeals 

held that Hunter misunderstood the docket sheet. The trial court’s docket sheet 

shows that the trial court certified the PSI report to the court of appeals on May 18, 

2006, as required by App.R. 9(A) as part of the direct-appeal record, and mailed it 

to the court of appeals on May 30, 2006. These docket entries bear no relation to 
January Term, 2018 

3

when the PSI was shared with Hunter. In fact, the trial court’s docket shows the 

filing of the PSI on July 6, 2005, one day before the sentencing hearing. 

{¶ 7} As for Hunter’s second claim, the court of appeals recognized that 

there was only one judgment entry and that Hunter had once again misunderstood 

the information on the appeals court’s docket. Id. at ¶ 7. 

{¶ 8} Hunter appealed and filed a merit brief. On October 23, 2017, he filed 

a Civ.R. 12(C) motion for judgment on the pleadings, asserting that he was entitled 

to judgment because the state failed to file a merit brief. The state responded with 

a motion to dismiss Hunter’s merit brief (captioned as a motion to dismiss the 

complaint) because Hunter had allegedly failed to serve his brief on the state. 

Alternatively, the state asked for additional time in which to file its merit brief. 

Hunter filed a brief in opposition to the state’s motion on November 3, 2017. 

Hunter’s motion for an order to the clerk of courts

{¶ 9} On August 30, 2017, Hunter filed a motion asking the court to order 

the Erie County Clerk of Courts to send him a complete index of the items filed in 

this court. S.Ct.Prac.R. 11.04(A)(1) requires the clerk of the trial court to prepare 

a certified copy of the docket and transmit it, along with the record, to this court. It 

does not require the clerk to serve those papers upon the parties to the appeal. We 

deny the motion. 

Hunter’s motion for judgment on the pleadings

{¶ 10} Hunter asks for judgment in his favor because the state failed to file 

a timely merit brief. Our Rules of Practice address this scenario. “If the appellee 

fails to file a merit brief within the time provided * * * , the Supreme Court may 

accept the appellant’s statement of facts and issues as correct and reverse the 

judgment if the appellant’s brief reasonably appears to sustain reversal.” 

(Emphasis added.) S.Ct.Prac.R. 16.07(B). Thus, Hunter is not automatically 

entitled to judgment; he must demonstrate that he is reasonably entitled to reversal. 

State ex rel. Willacy v. Smith, 78 Ohio St.3d 47, 49, 676 N.E.2d 109 (1997) 
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(affirming the court of appeals’ decision denying the appellant’s requests for writs 

of mandamus and prohibition despite the appellee’s failure to file a merit brief). 

Therefore, we deny Hunter’s motion for judgment on the pleadings. 

The state’s motion to dismiss

{¶ 11} Judge Binette’s motion to dismiss is based on Hunter’s alleged 

failure to serve his merit brief. Our rules address this circumstance as well. “When 

a party * * * fails to serve a party or parties to the case in accordance with [the rules 

of service], any party adversely affected may file a motion to strike the document 

that was not served.” S.Ct.Prac.R. 3.11(E)(1). If we determine that service was not 

proper, we may strike the document or order that it be served and impose a new 

deadline for the filing of any responsive document. S.Ct.Prac.R. 3.11(E)(2). We 

believe that this is what the state was trying to achieve with its miscaptioned motion 

to dismiss. 

{¶ 12} We deny the motion because we find that even if service was 

improper, the state was not adversely affected. As discussed in the next section, 

even without a merit brief from the state, we affirm the judgment of the court of 

appeals. 

The merits of the appeal

{¶ 13} Hunter’s merit brief presents nine propositions of law. In 

proposition of law No. 1, he asserts that the PSI was not journalized in the common 

pleas court or made available to his counsel. The record does not support that 

assertion, as the court of appeals correctly observed. Moreover, even if the trial 

court had failed to make the PSI available prior to sentencing, Hunter has cited no 

authority for the proposition that this error would void his judgment. He had an 

adequate remedy by way of appeal, and so this claim is barred by res judicata. 

{¶ 14} Propositions of law Nos. 3 and 9 repeat his claim that he was 

subjected to two separate judgment entries. His theory is that because there were 

two judgment entries, Judge Binette violated the rule set forth in Crim.R. 32(C) and 
January Term, 2018 

5

State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, ¶ 17, which 

requires that a final order of conviction be contained in one document. But there 

were not two judgment entries: there was a single judgment entry of conviction, 

filed in the trial court on July 8, 2005, and then refiled in the Sixth District as part 

of the record on appeal on May 18, 2006. The court of appeals correctly rejected 

these claims. 

{¶ 15} In proposition of law No. 2, Hunter challenges the finality of his 

sentencing entry under a different theory. In the entry, Judge Binette noted that at 

the sentencing hearing, he had continued Hunter’s sexual-predator hearing and 

referred him for a sex-offender-classification evaluation. According to Hunter, the 

judgment entry therefore failed to dispose of all the charges in the case. 

{¶ 16} In 2005, when Hunter was sentenced, sexual-offender-classification 

proceedings under R.C. Chapter 2950 were governed by Megan’s Law, 

AmSub.H.B. No. 180, 146 Ohio Laws, Part II, 2560. Proceedings under Megan’s 

Law were civil in nature, not criminal. State v. Ferguson, 120 Ohio St.3d 7, 2008-

Ohio-4824, 896 N.E.2d 110, ¶ 43. As a result, sex-offender-classification 

proceedings were “legally distinct from the proceedings governing a defendant’s 

underlying criminal conviction(s) and sentence.” State v. Gibson, 2d Dist. 

Champaign No. 2009 CA 47, 2010-Ohio-3447, ¶ 25, citing State v. Wilson, 113 

Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 32 (applying different 

standards of review to appeals from criminal convictions and classification 

proceedings). Because this determination was not criminal, Crim.R. 32(C) does 

not list it as a necessary component of a sentencing order to make the order final 

and appealable. To the contrary, courts often addressed the criminal sentence and 

the classification determination in separate entries and treated them as separately 

appealable orders. See, e.g., State v. Dobrski, 9th Dist. Lorain No. 06CA008925, 

2007-Ohio-3121, ¶ 1 (concluding that the criminal sentencing entry was not final 

and appealable, but that the sexual-predator classification, contained in a separate 
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entry, was final and appealable). We therefore find that proposition of law No. 2 

has no merit. 

{¶ 17} Proposition of law No. 4 asserts that Judge Binette abused his 

discretion by sentencing Hunter without considering the overriding purposes of 

felony sentencing listed in R.C. 2929.11. But a challenge to the trial court’s 

compliance with R.C. 2929.11 must be presented in a timely direct appeal or it is 

waived. State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, 

¶ 8. Therefore, we find that proposition of law No. 4 has no merit. 

{¶ 18} In propositions of law Nos. 5 and 6, Hunter contends that Judge 

Binette erred by sentencing him under an earlier version of R.C. 2929.19(B)(2)(d) 

(addressing sentencing hearings) for two reasons: (1) the rape of which Hunter was 

convicted occurred on the night of April 19-20, 1995, see Hunter, 169 Ohio App.3d 

65, 2006-Ohio-5113, 861 N.E.2d 898, at ¶ 2, and former R.C. 2929.19(B)(2)(d), 

Am.Sub.S.B. No. 2, 146 Ohio Laws, Part IV, 7136, 7485, does not apply to offenses 

committed before July 1, 1996, and (2) even if the statute did apply to his case, 

former R.C. 2929.19(B) was declared unconstitutional in State v. Foster, 109 Ohio 

St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. 

{¶ 19} Hunter previously raised these claims in a postconviction petition, 

and the Sixth District Court of Appeals rejected them on the merits. See State v. 

Hunter, 6th Dist. Erie No. E-15-049, 2016 Ohio App. LEXIS 2924 (June 10, 2016). 

Proposition of law Nos. 5 and 6 are therefore barred by res judicata. State ex rel. 

Dawson v. Summit Cty. Court of Common Pleas, 146 Ohio St.3d 435, 2016-Ohio1597, 57 N.E.3d 1146, ¶ 8-10 (a challenge to the finality of a judgment that was 

raised in a postconviction petition is res judicata). 

{¶ 20} Proposition of law No. 7 alleges that Judge Binette imposed an 

improper sentence because his sentence was permissible for an aggravated felony 

although Hunter was not indicted for or convicted of an aggravated felony. 

However, “sentencing errors are generally not remediable by extraordinary writ, 
January Term, 2018 

7

because the defendant usually has an adequate remedy at law available by way of 

direct appeal.” State ex rel. Ridenour v. O’Connell, 147 Ohio St.3d 351, 2016-

Ohio-7368, 65 N.E.3d 742, ¶ 3 (affirming the denial of mandamus relief to an 

inmate who claimed he was improperly sentenced). Therefore, we find that 

proposition of law No. 7 has no merit. 

{¶ 21} Finally, proposition of law No. 8 alleges a violation of R.C. 

2947.06(B), which concerns the appointment of psychologists and psychiatrists to 

assist the court at sentencing. Hunter does not explain what the violation was or, 

more importantly, why he could not have raised the alleged error on direct appeal. 

We reject this proposition of law. 

Motions denied 

and judgment affirmed. 

O’CONNOR, C.J., and O’DONNELL, FISCHER, and DEWINE, JJ., concur. 

KENNEDY, J., concurs in part and dissents in part, with an opinion joined by 

FRENCH, J. 

DEGENARO, J., not participating. 

_________________ 

 KENNEDY, J., concurring in part and dissenting in part. 

{¶ 22} I concur with the majority in affirming the court of appeals’ 

judgment denying appellant Sylvester Hunter’s petition for a writ of mandamus to 

vacate his prison sentence and conduct a new sentencing hearing. I also concur in 

denying Hunter’s motion for judgment on the pleadings and in denying appellee 

Judge Binette’s motion to dismiss. I dissent, however, from the majority’s decision 

to deny Hunter’s motion for an order to the clerk of courts to send him an index of 

items filed in this court. 

{¶ 23} S.Ct.Prac.R. 11.04(B)(1)(b) provides, “At least ten days before the 

clerk of the trial court transmits the record, the clerk shall send a copy of each index 

to all counsel of record in the case.” As Hunter is pro se in this matter, he is counsel 
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of record and is entitled to a copy of the index. Therefore, I would grant Hunter’s 

motion and order the Erie County Clerk of Courts to send of copy of the index to 

Hunter. 

 FRENCH, J., concurs in the foregoing opinion. 

_________________ 

Sylvester J. Hunter, pro se. 

Kevin J. Baxter, Erie County Prosecuting Attorney, and Martha S. Schultes, 

Assistant Prosecuting Attorney, for appellee. 

_________________