State ex rel. King v. Fleegle , 2019 Ohio 4932 ( 2019 )

[Cite as State ex rel. King v. Fleegle, 2019-Ohio-4932.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE EX REL. RICHARD KING : Hon. W. Scott Gwin, P.J.
: Hon. Patricia A. Delaney, J.
Relator : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. CT2019-0081
JUDGE MARK C. FLEEGLE :
:
Respondent : OPINION
CHARACTER OF PROCEEDING: Writ of Mandamus
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: November 25, 2019
APPEARANCES:
For Relator For Respondent
RICHARD KING #489-103, Pro Se D. MICHAEL HADDOX
North Central Correctional Institution Prosecuting Attorney
Box 1812 By MARK A. ZANGHI
Marion, OH 43301 Assistant Prosecuting Attorney
Box 189
Zanesville, OH 43702-0189
[Cite as State ex rel. King v. Fleegle, 2019-Ohio-4932.]
Gwin, P.J.
{¶1} On November 1, 2019, Richard King filed a petition for writ of mandamus
requesting that this Court order Judge Mark C. Fleegle to “correct his sentence that is
contrary to law and void.”1 Mr. King contends his sentence is contrary to law and void
because Judge Fleegle imposed an eight-year prison term rather than an eighteen-month
sentence for an alleged fourth degree felony count of pandering obscenity to a minor.
{¶2} For a writ of mandamus to issue, the relator must have a clear right to the
relief prayed for, the respondent must be under a clear legal duty to perform the requested
act, and relator must have no plain and adequate remedy in the ordinary course of law.
(Citation omitted.) State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28, 29, 451 N.E.2d
225 (1983). The Muskingum County Prosecutor, on behalf of Judge Fleegle, has moved
to dismiss Mr. King’s writ.
{¶3} A court is permitted to dismiss a mandamus action under Civ.R. 12(B)(6)
for failure to state a claim upon which relief can be granted “if, after all factual allegations
of the complaint are presumed true and all reasonable inferences are made in the relator’s
favor, it appears beyond doubt that he can prove no set of facts entitling him to the
requested writ of mandamus.” State ex rel. Russell v. Thornton, 111 Ohio St.3d 409,
2006-Ohio-5858, 856 N.E.2d 966, ¶9.
{¶4} Mr. King’s writ alleges a sentencing error. He claims the trial court
improperly sentenced him to an eight-year prison term, for count one of the indictment,
pandering obscenity involving a minor. He claims this count is a fourth degree felony and
1
On September 27, 2019, this Court dismissed a Writ of Mandamus filed by Mr. King
wherein he argued the same grounds for relief that he asserts here. See State ex rel.
King v. Fleegle, 5th Dist. Muskingum No. CT2019-0013, 2019-Ohio-4038.
Muskingum County, Case No. CT2019-0081 3
as such, he could only be sentenced to a maximum sentence of eighteen months. This
claim is not cognizable in mandamus. “[S]entencing errors are generally not remediable
by extraordinary writ, 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. Here, Mr. King had an adequate remedy at law
because he could have and did challenge his sentence on direct appeal and by way of
post-conviction relief. See State ex rel. King v. Fleegle, 5th Dist. Muskingum No. CT2019-
0013, 2019-Ohio-4038, ¶8, which reviews the various legal proceedings Mr. King has
previously pursued to challenge his sentence. This basis alone supports granting the
Muskingum County Prosecutor’s Motion to Dismiss Relator’s Successive Petition for Writ
of Mandamus.
{¶5} Further, and as an independent ground, we also note that Mr. King failed to
comply with R.C. 2734.04, which requires: “Application for the writ of mandamus must be
by petition, in the name of the state on the relation of the person applying and verified by
affidavit. * * *” (Emphasis added.) Mr. King did not file a “petition” in support of his
application for writ of mandamus. Although he titles the first page of his pleading a
“Petition for Writ of Mandamus[,]” it is merely an introduction to the relief that he requests.
The next page of Mr. King’s “Petition for Writ of Mandamus” is titled, “Memorandum in
Support.” The petition is not in the form of a complaint. Instead, the “Memorandum in
Support” sets forth in a brief format Mr. King’s argument regarding why he believes he is
entitled to mandamus relief. The failure to include a complaint as part of his Petition for
Writ of Mandamus serves as an independent basis under Civ.R. 12(B)(6) to dismiss Mr.
King’s mandamus petition.
Muskingum County, Case No. CT2019-0081 4
{¶6} The clerk of courts is hereby directed to serve upon all parties not in default
notice of this judgment and its date of entry upon the journal. See Civ.R. 58(B).
{¶7} MOTION GRANTED.
{¶8} CAUSE DISMISSED.
{¶9} COSTS TO RELATOR.
{¶10} IT IS SO ORDERED.
By Gwin, P.J.,
Delaney, J., and
Baldwin, J., concur