State ex rel. Agosto v. Gallagher

[Cite as State ex rel. Agosto v. Gallagher, 2011-Ohio-4514.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96670
STATE OF OHIO EX REL.
JOSE AGOSTO
RELATOR
vs.
JUDGE HOLLIE L. GALLAGHER, ET AL.
RESPONDENTS
JUDGMENT:
WRITS DENIED
Writ of Mandamus and/or Procedendo
Motion No. 444365
Order No. 446666
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RELEASE DATE: September 2, 2011
FOR RELATOR
Jose Agosto, Pro Se
Mansfield Correctional Institution
Inmate No. 493-626
Post Office Box 788
Mansfield, Ohio 44901
ATTORNEYS FOR RESPONDENTS
William D. Mason
Cuyahoga County Prosecutor
By: James E. Moss
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, J.:
{¶ 1} Relator, Jose Agosto, Jr., 1 is the defendant in State v. Agosto,
Cuyahoga County Court of Common Pleas Case No. CR-455886, which has
been assigned to respondent judge. 2 The grand jury issued a three-count
indictment. The state nolled one count, and the jury found him guilty of the
1
The caption of relator’s complaint stated his name as “Jose Agusto, Jr.” By
separate order, this court instructed the clerk to correct the caption to reflect the
proper spelling of relator’s last name as “Agosto.”
2
Agosto has also named the “Cuyahoga County Court of Common Pleas” as a
respondent.
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two remaining counts, murder and felonious assault. The court of common
pleas issued a sentencing entry on November 3, 2005. This court affirmed
Agosto’s conviction in State v. Agosto, Cuyahoga App. No. 87283,
2006-Ohio-5011, and the Supreme Court of Ohio dismissed Agosto’s appeal as
not involving any substantial constitutional question. State v. Agosto, 114
Ohio St.3d 1414, 2007-Ohio-2632, 867 N.E.2d 846.
{¶ 2} In this action, Agosto contends that the November 3, 2005
sentencing entry is void because: (1) it does not contain a disposition of count
1; (2) the trial court improperly imposed sentence on allied offenses of similar
import; and (3) the trial court improperly imposed postrelease control. He
requests that this court issue a writ of mandamus and/or procedendo
“compelling the Respondents’ [sic] to cause the Relator to be physically
brought back before the Cuyahoga County Court of Common Pleas to be
sentenced to a lawful sentence and cause to be rendered and filed as a valid
final judgment in the Relator’s case sub judice.” Complaint, Ad Damnum
Clause (capitalization in original).
{¶ 3} The requirements for mandamus are well established: (1) the
relator must have a clear legal right to the requested relief; (2) the respondent
must have a clear legal duty to perform the requested relief; and (3) there
must be no adequate remedy at law. Mandamus may compel a court to
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exercise judgment or discharge a function, but it may not control judicial
discretion, even if that discretion is grossly abused. Additionally, mandamus
is not a substitute for appeal and does not lie to correct errors and procedural
irregularities in the course of a case. If the relator has or had an adequate
remedy, relief in mandamus is precluded — regardless of whether the relator
used the remedy. State ex rel. Smith v. Fuerst, Cuyahoga App. No. 86118,
2005-Ohio-3829, at ¶4.
{¶ 4} The criteria for relief in procedendo are also well established. The
relator must demonstrate: (1) a clear legal right to proceed in the underlying
matter; and (2) the lack of an adequate remedy in the ordinary course of the
law. See, e.g., State ex rel. Charvat v. Frye, 114 Ohio St.3d 76,
2007-Ohio-2882, 868 N.E.2d 270, at ¶13.
{¶ 5} Initially, we note that Agosto previously sought — and this court
denied — relief in mandamus and procedendo regarding the same November
3, 2005 sentencing entry. He requested “that this court compel respondents
to ‘cause to be rendered and filed a valid final judgment in the Relator’s
above-cited criminal case.’ Complaint, ad damnum clause.” State ex rel.
Agosto v. Cuyahoga Cty. Court of Common Pleas, Cuyahoga App. No. 90631,
2007-Ohio-6806, ¶1, affirmed State ex rel. Agosto v. Cuyahoga Cty. Court of
Common Pleas, 119 Ohio St.3d 366, 2008-Ohio-4607, 894 N.E.2d 314 (“Case
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No. 90631”). In Case No. 90631, Agosto complained that the sentencing
entry was “defective because it does not mention his plea and ‘the entry does
not set forth the Relator’s verdicts; it sets forth a description of the Relator’s
verdicts * * *.’ Relator's Brief in Opposition to Respondents’ Motion to
Dismiss, at 2. Emphasis in original.” Case No. 90631, 2007-Ohio-6806, ¶2.
{¶ 6} Although, in Case No. 90631, Agosto asserted a different basis for
holding that the November 3, 2005 sentencing entry was defective, he
requested the same relief as he requests in this action. That is, he wants this
court to compel respondents to issue a final appealable order. Not only did
this court reject his request for relief in mandamus and/or procedendo, the
Supreme Court affirmed and held: “Thus, based on [State v. Baker, 119 Ohio
St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163], neither the common pleas court
nor the judge either refused to render or unduly delayed rendering a judgment
in the criminal case, and Agosto is thus not entitled to the requested
extraordinary relief in mandamus and procedendo.” 2008-Ohio-4607, ¶10.
Additionally, the Supreme Court held that Agosto had an adequate remedy by
way of appeal. “In fact, Agosto has already exercised his right to appeal the
judgment in the criminal case, albeit unsuccessfully, and he could have raised
his present claims in that appeal.” Id., ¶12 (citation deleted).
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{¶ 7} In light of the Supreme Court’s prior determination in Agosto’s
appeal of this court’s decision in Case No. 90631, we must hold that res
judicata bars this action.
{¶ 8} Agosto also erroneously argues that the absence of the state’s nolle
from the sentencing entry is a defect. The trial court is not required to state
the means of exoneration in the sentencing entry. See State v. Robinson,
Cuyahoga App. No. 90731, 2008-Ohio-5580, ¶18. This ground does not
provide a basis for relief in mandamus or procedendo. See State ex rel. Davis
v. Cuyahoga Cty. Court of Common Pleas, 127 Ohio St.3d 29, 2010-Ohio-4728,
936 N.E.2d 41.
{¶ 9} Agosto also contends that the trial court improperly imposed
sentence on allied offenses of similar import. “[A]llied offense claims and
sentencing issues are not jurisdictional. Thus, they are properly addressed
on appeal and not through an extraordinary writ.” State ex rel. Martin v.
Russo, Cuyahoga App. No. 96328, 2011-Ohio-3268, ¶8 (citations deleted). We
must, therefore, hold that Agosto’s contention that he was improperly
sentenced on allied offenses does not provide a basis for relief in mandamus
and/or procedendo.
{¶ 10} Likewise, his argument that the sentencing entry is void because
the court of common pleas improperly imposed postrelease control is not well
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taken. The November 3, 2005 sentencing entry stated: “Post release control
is part of this prison sentence for the maximum time allowed for the above
felony(s) under R.C. 2967.28.” In State ex rel. Shepherd v. Astrab, Cuyahoga
App. No. 96511, 2011-Ohio-2938, the sentencing entry included comparable
language regarding “‘the maximum period allowed.’” Id. at ¶3. In
Shepherd, we denied the request for relief in mandamus and/or procedendo
and held that the language of the sentencing entry provided sufficient notice
that postrelease control was part of the sentence. That is, the relator had an
adequate remedy by way of appeal. In this action, we must reach the same
conclusion and hold that Agosto had sufficient notice that postrelease control
was part of his sentence and had an adequate remedy by way of appeal to raise
any purported errors.
{¶ 11} Accordingly, respondents’ motion for summary judgment is
granted. Relator to pay costs. 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).
{¶ 12} Writs denied.
_______________________________
MARY J. BOYLE, JUDGE
MARY EILEEN KILBANE, A.J., and
MELODY J. STEWART, J., CONCUR