2019 Ohio 3086
Ohio Ct. App.2019Background
- Relator Orlando Powe sought a writ of mandamus asking the court to dismiss his conviction as void or to resentence him so consecutive sentences would not stand.
- Powe alleged two principal defects: he was not charged by a complaint under Crim.R. 3, and the trial court failed to perform the required fact-finding before imposing consecutive sentences under R.C. 2929.14(C).
- He had previously raised the Crim.R. 3 claim in the trial court and appealed to this Court and the Ohio Supreme Court.
- Judge Jill Lanzinger (respondent) moved to dismiss the mandamus petition; Powe filed a timely response after being granted additional time.
- The court evaluated the petition under mandamus standards and Civ.R. 12(B)(6) dismissal principles and found that mandamus was not an appropriate vehicle for the relief sought.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Powe was entitled to mandamus because he was not charged by a complaint under Crim.R. 3 | Powe: charging defect (no complaint) rendered conviction void and mandamus relief appropriate | Judge Lanzinger: indictment, not a complaint, was the charging instrument; appeal is the proper remedy | Denied — appeal was an adequate remedy; mandamus unavailable |
| Whether Powe was entitled to mandamus because trial court failed to make required consecutive-sentence findings under R.C. 2929.14(C) | Powe: consecutive sentences imposed without required fact-finding, so relief (resentencing) is warranted | Lanzinger: alleged sentencing errors are subject to direct appeal; mandamus is not a substitute for appeal | Denied — direct appeal provided an adequate remedy; mandamus not appropriate |
Key Cases Cited
- State ex rel. Serv. Emp. Internatl. Union, Dist. 925 v. State Emp. Relations Bd., 81 Ohio St.3d 173 (1998) (elements required for mandamus)
- State ex rel. Russell v. Thornton, 111 Ohio St.3d 409 (2006) (mandamus complaint may be dismissed under Civ.R. 12(B)(6) if no set of facts would entitle relator to relief)
- State ex rel. Richfield v. Laria, 138 Ohio St.3d 168 (2014) (mandamus cannot substitute for appeal)
- State ex rel. Caskey v. Gano, 135 Ohio St.3d 175 (2013) (appeal from an adverse judgment constitutes an adequate remedy)