State ex rel. Walker v. State
30 N.E.3d 947
Ohio
2015
Check Treatment
Per Curiam.

{¶ 1} Aрpellant, Michael A. Walker, appeals the decision of the Eighth District Court of Appeals dismissing his petition for a writ of mandamus. Walker has also moved this court to stay the collection of court costs during this appeal. For the reasons set forth below, we affirm the judgment of the court of appeals and deny the motion to stay the collection of court costs.

I. Facts

A. Underlying criminal conviction

{¶ 2} In 1983, a jury found Walker guilty of aggravated murder, aggravated burglary, and two counts each of aggravаted robbery and felonious assault. The trial court sentenced him to serve 64 to 105 years and/or life in prison. Walker’s cоnvictions and sentences were affirmed on direct appeal. State v. Walker, 8th Dist. Cuyahoga No. 47616, 1984 WL 5599 (May 31, 1984).

{¶ 3} On June 17, 1999, Walker filed a motion with the trial court seеking to have his sentence “corrected” under R.C. 2941.25(A) and the Double Jeopardy Clause of the Fifth Amendment to the United Statеs Constitution. The trial court denied Walker’s motion on July 1,1999. Walker did not appeal.

*366 B. Mandamus proceedings

{¶ 4} On September 17, 2013, Walker filed an original action in the court of appeals seeking a writ of mandamus compelling the state of Ohio to resentence him. Walker argued that our decision in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, entitles him to a de novo resentencing hearing at which the trial court must address the issuе of allied offenses. Johnson changed the standard for evaluating allied offenses by overruling State v. Rance, 85 Ohio St.3d 632, 710 N.E.2d 699 (1999), “to the extent that it calls for а comparison of statutory ‍‌​​​‌‌‌‌​​‌‌​‌​​​​‌​‌​​‌‌​​​​​​​‌‌​‌‌​‌​‌‌​​​​‌​‍elements solely in the abstract under R.C. 2941.25.” Johnson at ¶ 44. Under Johnson, courts must “consider the offenses at issue in light of the defendant’s conduct,” id. at ¶ 46, and a “court need not perform any hypothetical or abstract comparison оf the offenses at issue in order to conclude that the offenses are subject to merger,” id. at ¶ 47.1

{¶ 5} The state filed a motion to dismiss the petition, arguing that Walker named the state of Ohio as a party in error, and therefore the petition was defective, and asserting that Johnson does not apply retroactively. The state further argued that Walker’s allied-offense claim is not cognizable in a mandamus action, because he had an adequate remedy in the ordinary course of law by way of direct appeal.

{¶ 6} The court of appeals granted the motion to dismiss and held that Johnson aрplies only to cases pending on the date that that decision was announced, not to convictions that were final prior to that date. 2014-Ohio-216, 2014 WL 265632, at ¶ 3, citing State v. Bork, 6th Dist. Lucas No. L-12-1221, 2013-Ohio-3947, 2013 WL 5210374, State v. Collins, 2d Dist. Montgomery No. 25612, 2013-Ohio-3645, 2013 WL 4520485, and State v. Thompkins, 10th Dist. Franklin No. 12AP-1080, 2013-Ohio-3599, 2013 WL 4477841. The court of appeals also held that “claims of sentencing errors, including ‍‌​​​‌‌‌‌​​‌‌​‌​​​​‌​‌​​‌‌​​​​​​​‌‌​‌‌​‌​‌‌​​​​‌​‍allied оffenses claims, are not cognizable in extraordinary writ actions.” Id. at ¶ 4, citing Smith v. Voorhies, 119 Ohio St.3d 345, 2008-Ohio-4479, 894 N.E.2d 44, and State ex rel. Agosto v. Gallagher, 8th Dist. Cuyahoga No. 96670, 2011-Ohio-4514, 2011 WL 3925670.

{¶ 7} Walker timely appealed to this court.

II. Legal analysis

A. Mandamus

{¶ 8} Walker argues, in two propositions of law, that he is entitled to a de novo resentencing hearing under Johnson and that his state and federal constitutional *367rights were violated when the trial court failed to determine whether any offenses were subject to merger at the time of his sentencing hearing.

{¶ 9} A relator seeking a writ of mandamus must establish (1) а clear legal right to the requested relief, (2) a clear legal duty on the part of the respondent official оr governmental unit to provide it, and (3) the lack of an adequate remedy in the ordinary course of the law. State ex rel. O’Grady v. Griffing, 140 Ohio St.3d 290, 2014-Ohio-3687, 17 N.E.3d 574, ¶ 11, citing State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6. Further, a relator must prove that he or she is entitled to the writ by clear and convincing evidence. Id.

{¶ 10} Walker is unable to establish a clear legal right to the relief he seeks in light of State v. Ketterer, 140 Ohio St.3d 400, 2014-Ohio-3973, 18 N.E.3d 1199. Ketterer held that Johnson does not apply retroactively to cases that were final prior to the date that decision was announced. Id. at ¶ 15. Walker was convicted in 1983 and his conviction ‍‌​​​‌‌‌‌​​‌‌​‌​​​​‌​‌​​‌‌​​​​​​​‌‌​‌‌​‌​‌‌​​​​‌​‍was affirmed on direct appeal in 1984. Walker, 8th Dist. Cuyahoga No. 47616, 1984 WL 5599 (May 31, 1984). By contrast, Johnson was announced on December 29, 2010. 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. Thus, Walker’s conviction became final long before our decision in Johnson was announced. See Allen v. Hardy, 478 U.S. 255, 257-258, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986), fn. 1 (a conviction is final when the judgment of conviction has been rendered, the availability of an appeal has been exhausted, and the time for a petition for certiorari has elapsed). While the court of appeals in this case did not have the benefit of our decision in Ketterer, the court nonetheless correctly analyzed Walker’s claim by holding that Johnson is a new judiсial ruling that may not be applied retroactively to a conviction that had already become final. 2014-Ohio-216, 2014 WL 265632, at ¶ 3, citing Ali v. State, 104 Ohio St.3d 328, 2004-Ohio-6592, 819 N.E.2d 687.

{¶ 11} Walkеr’s second proposition of law invokes the double-jeopardy provision in the state and federal constitutions. Yet his second proposition of law merely recasts his primary complaint under the first proposition of law: thаt the trial court must hold a de novo resentencing hearing under Johnson. Walker argues that a federal district court has ruled that Johnson applies retroactively. See Walters v. Sheets, S.D.Ohio No. 2:09-CV-446, 2011 WL 4543889 (Sept. 29, 2011) (applying Johnson retroactively). However, that opinion was overrulеd by the Sixth Circuit Court of Appeals on the very basis for which Walker cites it. Walters v. Warden, 6th Cir. No. 12-3202, 2013 WL 1296249 (April 2, 2013) CJohnson does not apply retroactively).

{¶ 12} Walker alternatively argues that the failure to include an allied-offense ‍‌​​​‌‌‌‌​​‌‌​‌​​​​‌​‌​​‌‌​​​​​​​‌‌​‌‌​‌​‌‌​​​​‌​‍determination in his 1983 judgment entry rendered his sentence void under State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923. But Underwood *368did not address the issue Walker claims it did; in Underwood, we held that a criminal defendant hаs the right to appeal a sentence, despite the language in R.C. 2953.08(D)(1) precluding an appeal of a sentence that was jointly recommended by the parties, if the trial judge failed to merge allied offenses at sentencing. Id. at ¶ 26. Thus, Underwood is inapposite.

Michael A. Walker, pro se. Timоthy J. McGinty, Cuyahoga County Prosecuting Attorney, and James E. Moss, Assistant Prosecuting Attorney, for appellee.

{¶ 13} Because Johnson does not aрply retroactively, Walker is unable to establish that he has a clear legal right to relief.

{¶ 14} Additionally, Walker had an adequate remedy in the ordinary course of the law by way of direct appeal and postconviction relief, both of which he has repeatedly sought over the 30 years since -his conviction. And “[wjhere a plain and adequate remedy at law has been unsuccessfully invoked, a writ of mandamus will not lie to relitigate the same issue.” State ex rel. Sampson v. Parrott, 82 Ohio St.3d 92, 93, 694 N.E.2d 463 (1998).

{¶ 15} Walker has not established by clear and convincing evidence that he has a clear right to relief. Additionally, Walker has or had adequаte remedies in the ordinary course of the law. Thus, Walker has not satisfied the requirements for obtaining a writ of mandamus.

B. Court costs

{¶ 16} We deny Walker’s motion to stay the collection of court costs as moot.

III. Conclusion

{¶ 17} Based on the foregoing, we affirm ‍‌​​​‌‌‌‌​​‌‌​‌​​​​‌​‌​​‌‌​​​​​​​‌‌​‌‌​‌​‌‌​​​​‌​‍the judgment of the court of appeals.

Judgment affirmed.

O’Connor, C.J., and Pfeifer, O’Donnell, Lanzinger, Kennedy, French, and O’Neill, JJ., concur.

Notes

. The Johnson test has since been clarified by our opinion in State v. Ruff, — Ohio St.3d-, 2015-Ohio-995, — N.E.3d-; however, Ruff has no bearing on the resolution of this appeal.
Read the detailed case summary