State ex rel. Mayes v. Ambrose , 2012 Ohio 3824 ( 2012 )

[Cite as State ex rel. Mayes v. Ambrose, 2012-Ohio-3824.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98758
STATE OF OHIO, EX REL.
PETER WILLIAM MAYES
RELATOR
vs.
JUDGE DICK AMBROSE, ET AL.
RESPONDENTS
JUDGMENT:
COMPLAINT DISMISSED
Writ of Mandamus and/or Procedendo
Order No. 457551
RELEASE DATE: August 20, 2012
FOR RELATOR
Peter William Mayes, pro se
Inmate No. 442-575
Hocking Correctional Facility
P.O. Box 59
Nelsonville, Ohio 45764
ATTORNEY FOR RESPONDENT
William D. Mason
Cuyahoga County Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:
{¶1} Relator, Peter William Mayes, is the defendant in Cuyahoga C.P. No.
CR-442426, which has been assigned to respondent judge who is a member of respondent
court. Mayes complains that respondent imposed sentence without properly addressing
the issue of allied offenses of similar import under R.C. 2941.25. Mayes argues that his
sentence is void and requests this court to issue a writ of mandamus and/or procedendo to
compel respondents “to issue a valid judgment in Case No. 02-CR-442426-ZA, and to
vacate the sentence without unnecessary delay.” Complaint, Ad Damnum Clause.
{¶2} For the reasons stated below, we dismiss this action sua sponte.
{¶3} In State ex rel. Gonzalez v. Astrab, 8th Dist. No. 97922, 2012-Ohio-3582, the
relator “Gonzalez argue[d] that his sentence [was] void and request[ed] this court to issue
a writ of mandamus and/or procedendo to compel respondents to have him returned to
Cuyahoga County ‘to be sentenced to a lawful sentence * * *.’ Complaint, ¶ 11.” Id. at
¶ 1. This court granted the motion to dismiss of the respondent judge and the court of
common pleas.
{¶4} In Gonzalez, we reaffirmed that “allied-offense claims are nonjurisdictional
and are not cognizable in an extraordinary-writ action.” (Citation omitted.) State ex rel.
Agosto v. Gallagher, 8th Dist. No. 97760, 2011-Ohio-4514, ¶ 3, aff’d, 131 Ohio St.3d
176, 2012-Ohio-563, 962 N.E.2d 796. In light of Agosto, we concluded: “The Supreme
Court has stated clearly that original actions do not provide a remedy for allied-offense
claims. As a consequence, we must hold that Gonzalez’s complaint fails to state a claim
upon which relief can be granted.” Gonzalez, supra, ¶ 4.
{¶5} Likewise, in this action, Mayes requests relief in mandamus and/or
procedendo with respect to his claim that respondent judge erroneously sentenced him on
allied offenses of similar import. In light of this court’s holdings in Agosto and Gonzalez
as well as the Supreme Court’s affirming Agosto, we must also hold in this action that
Mayes’s complaint does not state a claim upon which relief can be granted.
{¶6} Accordingly, we dismiss Mayes’s complaint sua sponte. Relator to pay
costs. This court directs the clerk of court to serve all parties notice of this judgment and
its date of entry upon the journal as required by Civ.R. 58(B).
{¶7} Complaint dismissed.
FRANK D. CELEBREZZE, JR., JUDGE
MARY J. BOYLE, P.J., and
KENNETH A. ROCCO, J., CONCUR