State ex rel. Shepherd v. Astrab , 2011 Ohio 2938 ( 2011 )

[Cite as State ex rel. Shepherd v. Astrab, 2011-Ohio-2938.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96511
STATE OF OHIO EX REL.
CHARLES SHEPHERD
RELATOR
vs.
JUDGE MICHAEL ASTRAB
RESPONDENT
JUDGMENT:
WRIT DENIED
Writ of Mandamus and/or Writ of Procedendo
Motion No. 443386
Order No. 444896
RELEASE DATE: June 10, 2011
FOR RELATOR:
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Charles Shepherd, Pro Se
Inmate #434286
P.O. Box 57
Marion, Ohio 43301
ATTORNEYS FOR RESPONDENT:
William D. Mason
Cuyahoga County Prosecutor
By: James E. Moss
Assistant County Prosecutor
Justice Center - 8 Floor
ht
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:
{¶ 1} Relator, Charles Shepherd, is the defendant in State v. Shepherd,
Cuyahoga County Court of Common Pleas Case No. CR-427416, which has
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been assigned to respondent judge.1 Shepherd contends that his sentence is
void and argues that the court of common pleas did not correctly impose
postrelease control. The October 4, 2002 sentencing journal states, in part:
“Post release control is part of this prison sentence for the maximum period
allowed for the above felony (s) under R.C. 2967.28.” He requests that this
court issue a writ of mandamus and/or procedendo compelling respondent to
resentence him and journalize “a valid final appealable order.” Complaint,
Ad Damnum Clause.
{¶ 2} Respondent has filed a motion for summary judgment and argues
that Shepherd had an adequate remedy in the ordinary course of the law by
way of appeal. We agree.
{¶ 3} In State ex rel. Castro v. Corrigan, Cuyahoga App. No. 96488,
2011-Ohio-1701, the relator filed a complaint for a writ of mandamus and/or
procedendo. Castro requested that this court compel the respondent judge to
conduct a resentencing hearing and issue a final, appealable order that
properly includes postrelease control. Castro’s sentencing entry included the
same language regarding the imposition of postrelease control for “the
1
The original respondent was visiting Judge William J. Coyne, who was substituting for
former-judge Bridget McCafferty. In a prior entry, we recognized that Judge Michael Astrab
succeeded her in office and instructed the clerk to substitute Judge Michael Astrab for Judge
William J. Coyne as the respondent and to change the caption accordingly. See Civ.R. 25(D).
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maximum period allowed” as appeared in Shepherd’s sentencing entry. See
Castro, ¶5.
{¶ 4} “Finally, this court cannot issue a writ of mandamus and/or
procedendo since Castro possesses or possessed an adequate remedy at law
through a direct appeal of his sentence to raise the claim that he did not
receive proper notification about postrelease control. The Ohio Supreme
Court has established that a sentencing entry, which includes language that
postrelease control is part of the sentence, provides sufficient notice to raise
any claimed errors on appeal rather than by extraordinary writ. State ex rel.
Tucker v. Forchione, Slip Opinion No.2010–Ohio–6291. See, also, State ex
rel. Pruitt v. Cuyahoga Cty. Court of Common Pleas, 125 Ohio St .3d 402,
2010–Ohio–1808, 928 N.E.2d 722; Patterson v. Ohio Adult Parole Auth., 120
Ohio St.3d 311, 2008–Ohio–6147, 898 N.E.2d 950; Watkins v. Collins, 111
Ohio St.3d 425, 2006–Ohio–5082, 857 N.E.2d 78.” Castro, ¶4.
{¶ 5} Likewise, Shepherd had sufficient notice that postrelease control
was part of his sentence to raise any purported errors during his direct
appeal. As this court held in Castro, the controlling decisions of the Supreme
Court of Ohio require that we deny Shepherd’s request for relief in
mandamus and/or procedendo.
{¶ 6} Accordingly, we grant respondent’s motion for summary
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judgment. The clerk is directed to serve upon the parties notice of this
judgment and its date of entry upon the journal. Civ.R. 58(B). Relator to
pay costs.
Writ denied.
______________________________________
KENNETH A. ROCCO, JUDGE
MELODY J. STEWART, P.J., and
MARY J. BOYLE, J., CONCUR