Court of Appeals of Ohio, Eleventh District, Portage
STATE OF OHIO ex rel. DELMAR V. KIRKLIN, Relator,
BECKY L. DOHERTY, JUDGE OF THE COURT OF COMMON PLEAS, Respondent.
Original Action for Writ of Mandamus.
V. Kirklin, pro se.
V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder
Relator, Delmar V. Kirklin, seeks a writ of mandamus to
compel respondent, Judge Becky L. Doherty, to present
sufficient evidence showing that the Portage County Court of
Common Pleas had jurisdiction to proceed against him in his
1988 criminal case. Respondent moves to dismiss relator's
petition for failure to state a claim upon which relief can
be granted. Dismissal is warranted.
In April 1989, appellant was indicted of and pleaded guilty
to one count of aggravated murder and three accompanying
specifications, including a firearm specification, and one
count of kidnapping. Then Judge George Martin sentenced
relator to life with parole eligibility after twenty years on
the aggravated murder count, three-years on the firearm
specification, and 5 to 25 years on the kidnapping count,
In August 2017, after respondent became judge, appellant
moved to arrest judgment pursuant to R.C. 2947.02 contending
a lack of subject matter jurisdiction. He argued that his
convictions are void because a complaint was not filed before
the indictment was issued.
On September 6, 2017, respondent denied appellant's
motion to arrest finding "no cause" to vacate. Two
weeks later, appellant moved to vacate that judgment,
asserting the same argument previously advanced. This motion
was summarily denied. Neither ruling was appealed.
Appellant instituted this mandamus action in January 2018.
His sole claim asserts the same argument he advanced in his
2017 motions. He requests a writ compelling respondent to
"show cause" as to how the common pleas court had
jurisdiction in the absence of a complaint.
Although not expressly stated in his prayer for relief,
appellant ultimately seeks a determination that his
sentencing judgment is void and he is entitled to be released
from prison. As a general proposition, habeas corpus is the
appropriate proceeding for attacking a void criminal judgment
or sentence. In re Fisher, 39 Ohio St.2d 71, 74, 313
N.E.2d 851 (1974). In contrast, the purpose of a mandamus
action is to require a public official, including a judge, to
recognize and enforce a party's clear legal right:
"A mandamus is a civil proceeding, extraordinary in
nature since it can only be maintained when there is no other
adequate to enforce clear legal rights. State ex rel.
Brammer v. Hayes (1955), 164 Ohio St. 373. Mandamus is a
writ issued to a public officer to perform an act that the
law enjoins as a duty resulting from his or her office. R.C.
2731.01. For a writ of mandamus to issue, the relator must
establish a clear legal right to the relief prayed for; the
respondent must have a clear legal duty to perform the act;
and the relator must have no plain and adequate remedy in the
ordinary course of the law. State ex rel. National
Broadcasting Co., Inc. v. Cleveland (1988), 38 Ohio
St.3d 79, 80. A dereliction of duty must be established
before the writ will be issued. State ex rel. Spellmire
v. Kauer (1962), 173 Ohio St. 279, 280." State
ex rel. Widmer v. Mohney, 11th Dist. Geauga No.
2007-G-2776, 2008-Ohio-1028, ¶31.
In his petition, relator cedes that, in moving to arrest the
sentencing judgment, he raised the identical argument he now
raises. He further cedes that respondent issued a timely
decision denying his motion to arrest. To this extent,
respondent has fulfilled her legal duty. Relator has failed
to cite any authority that respondent has a legal duty to
explain the basis of the 2017 rulings or why appeal of those
rulings do not constitute an adequate remedy in the ordinary
course of law precluding mandamus. Relator, therefore, fails
to state a claim for a writ of mandamus.
Finally, even if relator's jurisdictional argument were
properly before this court, his sentence is not void. Relator
was indicted on and convicted of two felony offenses,
aggravated murder with specifications and kidnapping. An
indictment in the absence of a complaint confers
jurisdiction. State v. Luther, 11th Dist. Ashtabula
No. 2003-A-0130, 2005-Ohio-950, ¶13.
Construing the allegations in the complaint in a manner most
favorable to relator, he can prove no set of facts warranting
relief. State ex rel. Crabtree v. Franklin Cty. ...