State ex rel. Kirkpatrick v. Rice (Slip Opinion) , 140 Ohio St. 3d 398 ( 2014 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State ex rel. Kirkpatrick v. Rice, Slip Opinion No. 2014-Ohio-3958.]
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
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made before the opinion is published.
SLIP OPINION NO. 2014-OHIO-3958
THE STATE EX REL. KIRKPATRICK, APPELLANT, v. RICE, JUDGE, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets,
it may be cited as State ex rel. Kirkpatrick v. Rice,
Slip Opinion No. 2014-Ohio-3958.]
Mandamus—Court of appeals’ judgment dismissing complaint affirmed.
(No. 2013-1665—Submitted May 27, 2014—Decided September 17, 2014.)
APPEAL from the Court of Appeals for Trumbull County,
No. 2013-T-0004, 2013-Ohio-3978.
________________
Per Curiam.
{¶ 1} Appellant, Jason Kirkpatrick, appeals the decision of the Eleventh
District Court of Appeals dismissing his petition for a writ of mandamus. For the
reasons set forth below, we affirm the judgment of the court of appeals.
Background
{¶ 2} In September 2008, Kirkpatrick was sentenced after pleading
guilty to 16 counts of breaking and entering and one count of engaging in a
pattern of corrupt activity. Trumbull County Common Pleas Court Judge John
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Stuard sentenced Kirkpatrick to five years of community control, including the
requirement that Kirkpatrick enter and successfully complete a program called
“Teen Challenge” (sometimes also called “Life Challenge”). Judge Stuard
warned that any violation of community control could result in the imposition of a
nine-year prison term.
{¶ 3} On April 16, 2009, after Kirkpatrick admitted to violating the
terms of his release, Judge Stuard sentenced him to a total prison term of nine
years.
{¶ 4} Kirkpatrick appealed. The court of appeals held that Kirkpatrick’s
sentence for engaging in a pattern of corrupt activity exceeded the permissible
two-to-eight year range for a second-degree felony and remanded the case for
resentencing. 11th Dist. Trumbull No. 2009-T-0007, 2009-Ohio-6519.
{¶ 5} The trial court resentenced Kirkpatrick to a total prison term of
nine years, with eight of the years attributed to the conviction for engaging in a
pattern of corrupt activity. The court of appeals affirmed. 11th Dist. Trumbull
No. 2010-T-0025, 2010-Ohio-6578.
The mandamus complaint
{¶ 6} On January 10, 2013, Kirkpatrick filed an original action seeking a
writ of mandamus compelling Judge Stuard to resentence him. (Judge Stuard is
no longer on the bench, and Judge Ronald J. Rice has been substituted as
respondent.) Kirkpatrick’s claims all arise out of alleged defects in the 2008
sentencing order.
{¶ 7} The court of appeals dismissed the petition on September 16, 2013,
in large part because Kirkpatrick’s allegations, even if true, were “legally
insufficient to demonstrate that he has a ‘right’ to another sentencing hearing.”
11th Dist. Trumbull No. 2013-T-0004, 2013-Ohio-3978, ¶ 16.
{¶ 8} Kirkpatrick timely appealed to this court, and the matter is now
fully briefed.
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January Term, 2014
Legal analysis
{¶ 9} Kirkpatrick argues that his first sentencing order is void, based on
five defects:
{¶ 10} (1) “Teen Challenge” is a 12-month program, but the maximum
residential sanction under the Ohio Revised Code is six months.
{¶ 11} (2) The “Teen Challenge” residential sanction is void because the
sentencing entry did not specify the length of the term.
{¶ 12} (3) The trial court did not advise him of several of the community-
control sanctions on the record during the first sentencing hearing.
{¶ 13} (4) The first sentencing order failed to separately state the basis of
the nine-year “reserve” sentence to be imposed upon a violation of community-
control release.
{¶ 14} (5) Because the nine-year year “reserve” sentence exceeded the
maximum sentence permissible for a second-degree felony, he did not receive
valid notice of the reserve sentence.
{¶ 15} Each of these contentions attacks the validity of the 2008
sentencing order. However, that order has been superseded by not one, but two
subsequent orders. Kirkpatrick’s contentions are therefore moot.
{¶ 16} Kirkpatrick offers only one argument to explain why defects in the
2008 entry should make the subsequent entries void as well. According to
Kirkpatrick, because “the one-year alternative residential sanction was and is void
* * *, there was no valid sanction to violate, and the Trial Court had no power to
impose the reserve prison term.”
{¶ 17} To the contrary, even if the 2008 entry were defective, the court
still had jurisdiction to resentence him, given that Kirkpatrick has never
challenged the validity of his guilty plea.
{¶ 18} Judge Stuard’s April 16, 2009 order makes clear that he sentenced
Kirkpatrick to a term of nine years not as a punishment for violating community
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control, but because he considered nine years to be the appropriate sentence. And
Judge Stuard later corrected the error in that order when he sentenced Kirkpatrick
to the nine-year sentence he is now serving. Kirkpatrick has not established any
defect in his current sentence, and therefore he has shown no legal right to a new
sentencing hearing.
{¶ 19} A relator seeking a writ of mandamus must establish (1) a clear
legal right to the requested relief, (2) a clear legal duty on the part of the
respondent official or governmental unit to provide it, and (3) 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-Ohio-69, 960 N.E.2d 452, ¶ 6. Kirkpatrick has not
satisfied these requirements.
{¶ 20} Based on the foregoing, we affirm the judgment of the court of
appeals.
Judgment affirmed.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
__________________
Jason W. Kirkpatrick, pro se.
Dennis Watkins, Trumbull County Prosecuting Attorney, and LuWayne
Annos, Assistant Prosecuting Attorney, for appellee.
_________________________
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