State ex rel. Perdue v. Deweese

[Cite as State ex rel. Perdue v. Deweese, 2012-Ohio-2858.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, EX. REL JUDGES: IVORY PERDUE Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Relator Hon. Julie A. Edwards, J.

-vs- Case No. 12CA19

JUDGE JAMES DEWEESE, ET AL. OPINION Respondent

CHARACTER OF PROCEEDING: Writs of Mandamus and Procedendo JUDGMENT: Dismissed DATE OF JUDGMENT ENTRY: June 21, 2012 APPEARANCES: For Relator For Respondent

IVORY PERDUE JILL M. COCHRAN P.O. Box 788 (463-864) Assistant Richland County Prosecutor Mansfield, Ohio 44901-0788 38 South Park Street, 2nd Floor Mansfield, Ohio 44902

Richland County, Case No. 12CA19 2 Hoffman, J.

{¶1} Relator, Ivory Perdue, has filed a Complaint for Mandamus and/or Procedendo requesting this Court order Respondent DeWeese to resentence Relator. The basis of Relator’s claim is that he believes his sentence is void because the trial court did not issue a determination as to whether the Relator’s convictions were allied offenses of similar import.

{¶2} Relator filed a motion with the trial court raising this issue. The trial court denied the motion on the basis of res judicata. Relator did not file a notice of appeal. Rather, he filed the instant cause of action.

{¶3} The exact issue raised herein was recently addressed by the Supreme Court in State ex rel. Hudson v. Sutula 131 Ohio St.3d 177, 177, 962 N.E.2d 798, 798 (Ohio,2012). In Hudson, the Relator sought writs of mandamus and procedendo to compel the trial court to resentence him to “account for his allied offenses.” Id. The Court held, “Neither mandamus nor procedendo will issue if the party seeking extraordinary relief has an adequate remedy in the ordinary course of law. State ex rel. Jelinek v. Schneider, 127 Ohio St.3d 332, 2010-Ohio-5986, 939 N.E.2d 847, ¶ 13. Hudson had an adequate remedy by way of appeal to raise the claimed sentencing error. See generally Manns v. Gansheimer, 117 Ohio St.3d 251, 2008-Ohio-851, 883 N.E.2d 431, ¶ 6 (“sentencing errors are not jurisdictional and are not remediable * * * by extraordinary writ”); compare **799 Smith v. Voorhies, 119 Ohio St.3d 345, 2008-Ohio-4479, 894 N.E.2d 44, ¶ 10 (“allied-offense claims are nonjurisdictional and are not cognizable in habeas corpus”).” Id. Richland County, Case No. 12CA19 3

{¶4} Because Relator has or had an adequate remedy at law, neither mandamus nor procedendo lie. For this reason, the instant complaint is dismissed for failure to state a claim upon which relief may be granted. By: Hoffman, J. Gwin, P.J. and Edwards, J. concur

s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN

s/ W. Scott Gwin _____________________ HON. W. SCOTT GWIN

s/ Julie A. Edwards ___________________ HON. JULIE A. EDWARDS

Richland County, Case No. 12CA19 4

IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, EX. REL : IVORY PERDUE : Relator : : -vs- : JUDGMENT ENTRY : JUDGE JAMES DEWEESE, ET AL. : : Respondent : Case No. 12CA19

For the reasons stated in our accompanying Opinion, the instant complaint is dismissed. Costs to Relator.

s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN

s/ W. Scott Gwin _____________________ HON. W. SCOTT GWIN

s/ Julie A. Edwards___________________ HON. JULIE A. EDWARDS