State ex rel. Breedlove v. Henson , 2011 Ohio 1078 ( 2011 )

[Cite as State ex rel. Breedlove v. Henson, 2011-Ohio-1078.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, EX REL., JUDGES:
JEREMY BREEDLOVE Hon. William B. Hoffman, P.J.
Hon. Sheila G. Farmer, J.
Relator Hon. Patricia A. Delaney, J.
-vs- Case No. 10CA121
JUDGE, JAMES D. HENSON
OPINION
Respondent
CHARACTER OF PROCEEDING: Writ of Prohibition
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: March 9, 2011
APPEARANCES:
For Relator For Respondent
JEREMY BREEDLOVE KIRSTEN L. PSCHOLKA-GARTNER
#584-927 Assistant Richland County Prosecutor
2075 S. Avon-Belden Rd. 38 South Park Street, 2nd Floor
Grafton, Ohio 44044 Mansfield, Ohio 44902
Richland County, Case No. 10CA121 2
Hoffman, P.J.
{¶1} Relator Jeremy Breedlove filed a Complaint for Writ of Prohibition
challenging the trial court’s jurisdiction to impose consecutive sentences. Respondent
has filed a Motion to Dismiss the Complaint for failure to state a claim upon which relief
may be granted.
{¶2} In order for this court to issue a writ of prohibition, three conditions must
be met:
{¶3} “(1) The court or officer against whom it is sought must be about to
exercise judicial or quasi-judicial power; (2) it must appear that the refusal of the writ
would result in injury for which there is no adequate remedy; (3) the exercise of such
power must amount to an unauthorized usurpation of judicial power.” State ex rel.
Northern Ohio Telephone Co. v. Winter (1970), 23 Ohio St.2d 6, 8.
{¶4} In Kelley, Judge v. State ex rel. Gellner (1916), 94 Ohio St. 331, 341, the
Supreme Court of Ohio stated the following:
{¶5} “ In all cases where an inferior court has jurisdiction of the matter in
controversy and keeps within the limits prescribed by law for its operation, the superior
court should refuse to interfere by prohibition, for it should not consider whether the
court below erred in the exercise of its powers, since it has nothing to do with the
correctness of the rulings of the inferior court but only with its exercise of jurisdiction.”
(Emphasis added.)
{¶6} With regard to the issue of allied offenses, the Supreme Court has held,
““[A]llied-offense claims are nonjurisdictional and are not cognizable in habeas corpus.
Mosely v. Echols (1991), 62 Ohio St.3d 75, 578 N.E.2d 454.” Smith v. Voorhies 119
Richland County, Case No. 10CA121 3
Ohio St.3d 345, 347, 894 N.E.2d 44, 46 (Ohio,2008). Similarly, because allied offense
claims are nonjurisdictional, they likewise would not be cognizable in prohibition.
{¶7} It appears undisputed that Respondent has jurisdiction over Relator’s
case. It is only the extent of the exercise of Respondent’s powers which is challenged.
We find Relator has or had an adequate remedy at law by way of direct appeal to
challenge any sentencing error relative to the issue of allied offenses. See Hunter v.
Sutula 2006 WL 225526, 2 (Ohio App. 8 Dist.) and State ex rel. Lichtenwalter v.
Thomakos 2010 WL 4111257, 1 (Ohio App. 5 Dist.).
{¶8} Because Relator has or had an adequate remedy at law, we decline to
issue the requested writ of prohibition. Respondent’s motion to dismiss is granted.
By: Hoffman, P.J.
Farmer, J. and
Delaney, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
Richland County, Case No. 10CA121 4
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, EX REL., :
JEREMY BREEDLOVE :
:
Relator :
:
-vs- : JUDGMENT ENTRY
:
JUDGE, JAMES D. HENSON :
:
Respondent : Case No. 10CA121
For the reasons stated in our accompanying Opinion, Respondent’s motion to
dismiss is granted, and the Complaint for Writ of Prohibition is dismissed. Costs to
Relator.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY