STATE OF OHIO EX REL. ORLANDO POWE Relator
THE HONORABLE JUDGE JILL LANZINGER Respondent
ACTION IN MANDAMUS
ORLANDO POWE, Pro se, Relator.
BEVAN WALSH, Prosecuting Attorney, and COLLEEN SIMS,
Assistant Prosecuting Attorney, for Respondent.
A. TEODOSIO, JUDGE.
Orlando Powe has petitioned this Court for a writ of mandamus
to dismiss his judgment of conviction as void or grant the
relief he requested in his petition, which appears to be
resentencing on consecutive sentences. Respondent, Judge Jill
Lanzinger, has moved to dismiss. Mr. Powe filed a response to
the motion to dismiss along with a motion for additional time
to file the response. That motion is granted, and the
response is deemed timely filed. For the following reasons,
this Court grants the motion to dismiss.
"For a writ of mandamus to issue, a relator must
demonstrate that (1) the relator has a clear legal right to
the relief prayed for, (2) respondent is under a
corresponding clear legal duty to perform the requested acts,
and (3) relator has no plain and adequate legal remedy."
State ex rel Serv. Emp. Internatl. Union, Dist. 925 v.
State Emp. Relations Bd., 81 Ohio St.3d 173, 176 (1998).
The petitioner must demonstrate all three elements in order
for this Court to grant the writ of mandamus. "A court
can dismiss a mandamus action under Civ.R. 12(B)(6) for
failure to state a claim upon which relief can be granted if,
after all factual allegations of the complaint are presumed
true and all reasonable inferences are made in relator's
favor, it appears beyond doubt that he can prove no set of
facts entitling him to the requested writ of mandamus."
State ex rel. Russell v. Thornton, 111 Ohio St.3d
409, 2006-Ohio-5858, ¶ 9.
Mr. Powe's complaint alleges that he is entitled to a
writ of mandamus for two reasons: (1) he was not charged by a
complaint pursuant to Crim.R. 3, and (2) the trial court did
not engage in fact-finding before imposing consecutive
sentences pursuant to R.C. 2929.14(C). Mr. Powe set forth a
history of his criminal proceedings, and post-judgment
filings, in his complaint. He included that he raised the
Crim.R. 3 issue in a motion in the trial court in 2017,
followed by an appeal to this Court and, subsequently, to the
Ohio Supreme Court.
With respect to alleged legal errors, it is well-established
that mandamus cannot be used as a substitute for appeal to
challenge a trial court's actions. State ex rel.
Richfield v. Laria, 138 Ohio St.3d 168, 2014-Ohio-243,
¶ 11. Appeal from an adverse judgment constitutes an
adequate remedy in the ordinary course of law. State ex
rel. Caskey v. Gano, 135 Ohio St.3d 175, 2013-Ohio-71,
Mr. Powe could have raised his claims in an appeal from the
judgment of conviction. Any issues regarding a complaint
could have been raised on appeal, but the charging instrument
in this case was the indictment, not the complaint. See,
e.g., State v. Miles, 3d Dist. Hancock No. 5-18-06,
2018-Ohio-3317, ¶ 11. Likewise, any alleged errors about
consecutive sentences could have also been raised on direct
appeal. In other words, appeal provided an adequate remedy
for both issues Mr. Powe presented in his petition. He also
failed to allege that Judge Lanzinger owed any duty to him,
as required for this Court to issue a writ of mandamus.
Mr. Powe asserted in his complaint that he is now entitled to
a writ of mandamus because he has exhausted his appellate
remedies. Exhaustion of remedies is not a prerequisite to
seeking a writ of mandamus. To the contrary, his assertion
established that there were adequate remedies at law, making
mandamus relief unavailable.
For all of the foregoing reasons, the motion to dismiss is
granted, and this case is dismissed. Costs are taxed to Mr.
Powe. The clerk of courts is hereby directed to serve upon
all parties not in default notice of ...