State ex rel. Perdue v. Deweese , 2012 Ohio 2858 ( 2012 )

[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