THE STATE EX REL. CORNWALL, APPELLANT, v. SUTULA, JUDGE, APPELLEE.
No. 2015-1984
SUPREME COURT OF OHIO
Submitted July 12, 2016—Decided November 9, 2016.
148 Ohio St.3d 536, 2016-Ohio-7652
APPEAL from the Court of Appeals for Cuyahoga County, No. 103322, 2015-Ohio-4704.
Mandamus—Appellant had adequate remedy in ordinary course of law by way of appeal of sentence for postrelease-control violation—Court of appeals’ judgment denying writ affirmed.
Per Curiam.
{¶ 1} We affirm the Eighth District Court of Appeals’ denial of the complaint for a writ of mandamus filed by appellant, Melborn Cornwall. Cornwall seeks a writ ordering appellee, Cuyahoga County Court of Common Pleas Judge Kathleen A. Sutula, to vacate his sentence for violating the terms of his postrelease control, asserting that he should have been advised of the possibility of this sentence at his prior sentencing.
{¶ 2} Cornwall raises an important issue about which there is a split in the appellate districts. However, Cornwall had adequate remedies in the ordinary course of the law by way of appeal. We therefore affirm the judgment of the court of appeals.
Facts
{¶ 3} After pleading guilty to gross sexual imposition in violation of
{¶ 4} In May 2014, after pleading guilty to attempted failure to provide notice of a change of address in violation of
{¶ 5} Cornwall did not appeal, because, he alleges, he was unaware of his right to do so. Instead, he filed a motion to correct “a void sentence,” arguing that the two-and-a-half-year sentence for violating postrelease control exceeded the range authorized by
{¶ 6} Cornwall then filed a complaint for a writ of mandamus in the Eighth District Court of Appeals. He argued that he had not been advised at his sentencing in the gross-sexual-imposition case that if he committed a new felony while on postrelease control, a trial court could impose a prison term under
{¶ 7} Judge Sutula filed a motion for summary judgment, which the Eighth District Court of Appeals granted. Cornwall appealed.
Analysis
{¶ 8} To be entitled to a writ of mandamus, Cornwall must establish a clear legal right to the requested relief, a clear legal duty on the part of Judge Sutula to provide it, and the lack of an adequate remedy in the ordinary course of the law. State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6. Cornwall must prove that he is entitled to the writ by clear and convincing evidence. Id. at ¶ 13.
{¶ 10} The appellate districts are apparently split on this issue. The Fourth District holds that such a sentence is prohibited in the later case if no notice of the potential consequences under
{¶ 11} In this case, the court of appeals followed Eighth District precedent and granted Judge Sutula’s motion for summary judgment. The court held that the failure to notify a defendant of the possibility of a separate prison term under
{¶ 12} Cornwall admits in his brief that he failed to appeal his sentence for the postrelease-control violation and that he filed a motion to vacate the sentence on other grounds. Judge Sutula denied that motion, and Cornwall apparently failed
{¶ 13} Because Cornwall had an adequate remedy in the ordinary course of the law, a writ of mandamus is unavailable and we need not reach the merits of the
Judgment affirmed.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY, FRENCH, and O’NEILL, JJ., concur.
Melborn Cornwall, pro se.
Timothy McGinty, Cuyahoga County Prosecuting Attorney, and James E. Moss, Assistant Prosecuting Attorney, for appellee.