Opinion
Case No. 12CA19
06-21-2012
STATE OF OHIO, EX. REL IVORY PERDUE Relator v. JUDGE JAMES DEWEESE, ET AL. Respondent
APPEARANCES: For Relator IVORY PERDUE For Respondent JILL M. COCHRAN Assistant Richland County Prosecutor
JUDGES:
Hon. W. Scott Gwin, P.J.
Hon. William B. Hoffman, J.
Hon. Julie A. Edwards, J.
OPINION
CHARACTER OF PROCEEDING:
Writs of Mandamus and Procedendo
JUDGMENT: Dismissed
APPEARANCES:
For Relator
IVORY PERDUE
For Respondent
JILL M. COCHRAN
Assistant Richland County Prosecutor
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.
{¶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
William B. Hoffman
HON. WILLIAM B. HOFFMAN
W. Scott Gwin
HON. W. SCOTT GWIN
Julie A. Edwards
HON. JULIE A. EDWARDS
STATE OF OHIO, EX. REL IVORY PERDUE Relator
v.
JUDGE JAMES DEWEESE, ET AL. Respondent
JUDGMENT ENTRY
Case No. 12CA19
For the reasons stated in our accompanying Opinion, the instant complaint is dismissed. Costs to Relator.
William B. Hoffman
HON. WILLIAM B. HOFFMAN
W. Scott Gwin
HON. W. SCOTT GWIN
Julie A. Edwards
HON. JULIE A. EDWARDS