State Ex Rel. Thomson v. Clerk, Court of Claims, 80 Ohio St. 3d 495

State Ex Rel. Thomson v. Clerk, Court of Claims

80 Ohio St. 3d 495

Ohio

1997

Check Treatment

THE STATE EX REL. THOMSON, APPELLANT, v. CLERK, COURT OF CLAIMS, APPELLEE.

No. 97-1477

Supreme Court of Ohio

Submitted November 4, 1997—Decided December 31, 1997

80 Ohio St.3d 495

Ralph Thomas, pro se.

Betty D. Montgomery, Attorney General, and Donald Gary Keyser, Assistant Attorney General, for appellee.

Per Curiam. Thomas asserts in his propositions of law that the court of appeals erred by dismissing his habeas corpus petition. Thomas contends that the sentence for his theft conviction is void based on the claims he raised in the court of appeals.

The court of appeals, however, correctly dismissed the petition. Habeas corpus is not available to challenge either sentencing errors or the validity or sufficiency of an indictment.

State ex rel. Massie v. Rogers (1997), 77 Ohio St.3d 449, 449-450, 674 N.E.2d 1383; . These claims can be raised on direct appeal. Massie and Smith. Similarly, Thomas had an adequate remedy by appeal to raise his remaining claim that he was not present at his sentencing. See, e.g., .

Based on the foregoing, we affirm the judgment of the court of appeals.

Judgment affirmed.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur.

[Cite as

State ex rel. Thomson v. Court of Claims (1997), 80 Ohio St.3d 495.]

Michael E. Thomson, pro se.

Betty D. Montgomery, Attorney General, and Socrates H. Tuch, Assistant Attorney General, for appellee.

Per Curiam. Thomson asserts that the court of appeals erred in dismissing his mandamus action because the Court of Claims never answered his amended complaint. As the clerk notes, however, after Thomson was granted leave to file an amended complaint, which proposed adding the Court of Claims as a new respondent, he did not file the amended complaint, and it was never served on the Court of Claims. The court of appeals acted properly in not considering the proposed amendment. See, generally, 4 Harper & Solimine, Anderson‘s Ohio Civil Practice (1996) 485-486, Section 156.04; 1 Klein & Darling, Ohio Civil Practice (1997) 803, Section AT 15-3; cf.

Steiner v. Steiner (1993), 85 Ohio App.3d 513, 520-522, 620 N.E.2d 152, 157-158.

In addition, even assuming that Thomson‘s amended complaint was properly before the court of appeals after it granted Thomson‘s motion to amend, Thomson‘s mandamus claim alleging an abuse of discretion by the Court of Claims lacked merit. A writ of mandamus will not issue to control judicial discretion, even if that discretion is abused.

State ex rel. Luna v. McGimpsey (1996), 74 Ohio St.3d 485, 486, 659 N.E.2d 1278, 1278-1279; ; R.C. 2731.03; cf. (“To force the Court of Claims to accept a legal determination by the panel [of Court of Claims commissioners] when that determination in the court‘s discretion was an incorrect application of the appropriate legal standard, would be an explicit attempt to control proper judicial discretion.“).

Finally, the court of appeals correctly dismissed Thomson‘s original mandamus complaint because the clerk had no duty to transmit the Court of Claims record to the court of appeals after Thomson attempted to appeal the Court of Claims determination. See R.C. 2743.10(D) (“Upon the motion of a party, the court of claims shall review the determination of the clerk upon the clerk‘s report and papers filed in the action and shall enter judgment consistent with its findings. The judgment shall not be the subject of further appeal.” [Emphasis added.]).

Based on the foregoing, the court of appeals did not commit any error in granting the clerk‘s Civ.R. 12(B)(6) motion and dismissing Thomson‘s complaint. Accordingly, we affirm the judgment of the court of appeals.

Judgment affirmed.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur.