State ex rel. Nickelson v. Bowling (Slip Opinion) ( 2014 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State ex rel. Nickelson v. Bowling, Slip Opinion No. 2014-Ohio-2124.]
NOTICE
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SLIP OPINION NO. 2014-OHIO-2124THE STATE EX REL. NICKELSON, APPELLANT, v. BOWLING, JUDGE, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets,
it may be cited as State ex rel. Nickelson v. Bowling,
Slip Opinion No. 2014-Ohio-2124.]
Mandamus to withdraw guilty plea—Adequate remedy in ordinary course of
law—Dismissal of petition affirmed.
(No. 2013-1403—Submitted May 14, 2014—Decided May 29, 2014.)
APPEAL from the Court of Appeals for Lawrence County, No. 13CA4.
____________________
Per Curiam.
{¶ 1} We affirm the judgment dismissing the petition of appellant,
LeShawn Nickelson, for a writ of mandamus to compel appellee, Judge Scott
Bowling of the Court of Common Pleas of Lawrence County, to conduct a
hearing on a presentence motion to withdraw his guilty plea. Because he has, and
has used, an adequate remedy in the ordinary course of law by way of appeal, and
because the court denied his motion on the same issue at least twice, we affirm.
SUPREME COURT OF OHIO
Facts
{¶ 2} In 2005, Nickelson was indicted on ten counts. He initially pled
not guilty but later agreed to plead guilty to two counts in exchange for dismissal
of the remaining counts. The court approved the pleas.
{¶ 3} Nickelson filed a pro se motion requesting to withdraw his guilty
pleas. The trial court held a hearing on his motion, overruled it, and sentenced
him. The Fourth District Court of Appeals affirmed, and this court declined to
accept his appeals. State v. Nickelson, 4th Dist. Lawrence No. 09CA8, 2009-
Ohio-7006; appeals not accepted, 124 Ohio St.3d 1523, 2010-Ohio-1075, 923
N.E.2d 622; 126 Ohio St.3d 1515, 2010-Ohio-3331, 930 N.E.2d 333.
{¶ 4} In his appeal, Nickelson raised several assignments of error related
to the denial of his motion to withdraw the guilty plea, and the court of appeals
found that the trial court had held a hearing sufficient to determine whether there
was a reasonable basis for withdrawal of the plea and that the trial court did not
abuse its discretion in denying the motion. Id., ¶ 13-26. Nickelson filed a second
motion to withdraw his plea, which was summarily denied by the trial court, and
the court of appeals again affirmed. State v. Nickelson, 4th Dist. No. 10CA21,
2011-Ohio-1352.
{¶ 5} Nickelson then filed this action in mandamus seeking an order to
compel the trial court to conduct a hearing on his presentence motion to withdraw
his guilty plea. The court of appeals granted Judge Bowling’s motion to dismiss,
and Nickelson appealed.
Analysis
{¶ 6} We affirm the court of appeals’ decision dismissing Nickelson’s
petition. To get a writ of mandamus, Nickelson must establish a clear legal right
to the requested relief, a clear legal duty on the part of Judge Bowling to grant 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.
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January Term, 2014
{¶ 7} Nickelson has already twice moved for a hearing regarding
withdrawal of his plea and has twice appealed the result. Appeal is generally
considered an adequate remedy sufficient to preclude a writ. State ex rel.
Pressley v. Indus. Comm., 11 Ohio St.2d 141, 228 N.E.2d 631 (1967), paragraph
three of the syllabus. Nickelson had and exercised an adequate remedy in the
ordinary course of the law by way of his motions and the appeal of the denial of
those motions. He therefore is not entitled to a writ.
{¶ 8} Because the court of appeals was correct in granting the motion to
dismiss, we affirm.
Judgment affirmed.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
____________________
LeShawn Nickelson, pro se.
_________________________
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