2019 Ohio 3875
Ohio Ct. App.2019Background:
- John Simmons (relator) sought a writ of mandamus to compel sentencing judge Elinore Marsh Stormer (successor Judge Breaux acting) to resentence him in Summit C.P. No. CR-2007-09-3003.
- Simmons argued his judgment was not final/was void because: one period of postrelease control (PRC) was imposed for two offenses; the trial court exceeded an Ohio Supreme Court remand by increasing the term from 10 to 20 years; and the court failed to make statutory findings for consecutive sentences (R.C. 2929.14).
- Judge Breaux denied Simmons’s May 2018 motion to be resentenced (July 2018); Simmons attempted to appeal but his notice of appeal was untimely and the appeal was dismissed.
- Judge Breaux moved to dismiss the mandamus action; Simmons responded. The court considered mootness and failure-to-state-a-claim grounds.
- The court applied the three-part mandamus standard (clear right, clear duty, no adequate remedy) and concluded mandamus was not appropriate because the asserted errors were appealable and Simmons failed to timely pursue that remedy; mandamus is not a substitute for appeal.
- The Ninth District granted the motion to dismiss, dismissed the action, and taxed costs to Simmons.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Availability of mandamus to compel resentencing | Simmons: sentence is void/nonfinal; mandamus should compel resentencing | Breaux: she denied the motion; Simmons had (and failed to use) an appeal; mandamus inappropriate | Mandamus denied — relator cannot show required right/duty/no adequate remedy; appeal is adequate remedy |
| One period of postrelease control for multiple convictions | Simmons: single PRC for two offenses renders judgment nonfinal/void | Breaux: statute permits a single PRC period that expires last; single PRC is proper | Court held single PRC for multiple convictions is proper and does not render sentence void |
| Whether resentencing exceeded scope of Supreme Court remand (10 → 20 years) | Simmons: resentencing exceeded remand, so order is nonfinal/void | Breaux: any error was reviewable on appeal; not a basis for mandamus | Any such error was appealable; mandamus is not the proper remedy |
| Missing statutory findings for consecutive sentences (R.C. 2929.14) | Simmons: absence of required findings renders sentence nonfinal/void | Breaux: alleged error must be raised on appeal; mandamus inappropriate | Error, if any, is remedied by appeal; mandamus unavailable |
Key Cases Cited
- State ex rel. Serv. Emp. Internatl. Union, Dist. 925 v. State Emp. Relations Bd., 81 Ohio St.3d 173 (1998) (three-part mandamus test: clear right, clear duty, no adequate remedy)
- 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 warrants relief)
- State ex rel. Nelson v. Russo, 89 Ohio St.3d 227 (2000) (court may consider evidence outside the complaint to decide mootness)
- State ex rel. Richfield v. Laria, 138 Ohio St.3d 168 (2014) (mandamus cannot substitute for an appeal)
- State ex rel. Caskey v. Gano, 135 Ohio St.3d 175 (2013) (appeal from an adverse judgment is an adequate remedy at law)
- State ex rel. Plant v. Cosgrove, 119 Ohio St.3d 264 (2008) (mandamus inappropriate where appeal is an adequate remedy)