State ex rel. Powe v. Lanzinger , 2019 Ohio 3086 ( 2019 )

[Cite as State ex rel. Powe v. Lanzinger, 2019-Ohio-3086.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO EX REL. ORLANDO
POWE
C.A. No. 29373
Relator
v.
ORIGINAL ACTION IN
THE HONORABLE JUDGE JILL MANDAMUS
LANZINGER
Respondent
Dated: July 31, 2019
PER CURIAM.
{¶1} 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.
{¶2} “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
C.A. No. 29373
Page 2 of 3
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.
{¶3} 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.
{¶4} 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, ¶ 5.
{¶5} 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
C.A. No. 29373
Page 3 of 3
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.
{¶6} 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.
{¶7} 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 this judgment and its date of entry upon the
journal. See Civ.R. 58.
THOMAS A. TEODOSIO
FOR THE COURT
CARR, J.
SCHAFER, J.
CONCUR.
APPEARANCES:
ORLANDO POWE, Pro se, Relator.
SHERRI BEVAN WALSH, Prosecuting Attorney, and COLLEEN SIMS, Assistant Prosecuting
Attorney, for Respondent.