Hughley v. McMonagle, 92713 (3-16-2009)

Ohio Court of Appeals

Hughley v. McMonagle, 92713 (3-16-2009)

2009 Ohio 1259

CourtOhio Court of Appeals

DecidedMarch 16, 2009

DocketNo. 92713.

StatusUnpublished

This text of 2009 Ohio 1259 (Hughley v. McMonagle, 92713 (3-16-2009)) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Hughley v. McMonagle, 92713 (3-16-2009), 2009 Ohio 1259 (Ohio Ct. App. 2009).

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JOURNAL ENTRY AND OPINION Kevin Hughley has filed a complaint for a writ of mandamus, through which he seeks an order to compel Judge Timothy McMonagle "to re-sentence void remand re-sentence from remand order from appeals Case # 90323 that was inflicted on 12/22/08 to stop false imprisonment." Judge McMonagle has filed a motion for summary judgment, which we grant for the following reasons.

This court, in State v. Hughley, Cuyahoga App. No. 90323,2008-Ohio-6146, affirmed Hughley's conviction for seven counts of forgery, six counts of uttering, and six counts of tampering with records, but reversed and remanded for resentencing with regard to the six counts of tampering with records. On December 24, 2008, *Page 3 Judge McMonagle resentenced Hughley. On December 24, 2008, Hughley appealed Judge McMonagle's resentencing to this court.¹ On January 23, 2009, Hughley filed his complaint for a writ of mandamus.

Judge McMonagle is entitled to summary judgment as a matter of law. Mandamus will not issue where there exists a plain and adequate remedy in the ordinary course of the law. State ex rel. Ullmann v. Hayes,103 Ohio St.3d 405, 2004-Ohio-5469, 816 N.E.2d 245. Since Hughley has filed an appeal with regard to Judge McMonagle's resentencing, this court is prevented from issuing a writ of mandamus. State ex rel. Jaffal v.Calabrese, 105 Ohio St.3d 440, 2005-Ohio-2591, 828 N.E.2d 107. In addition, any sentencing errors rendered by a court that possesses proper jurisdiction cannot be remedied by an extraordinary writ.Majoros v. Collins (1992), 64 Ohio St.3d 442, 596 N.E.2d 1038; State exrel. Corrigan v. Lawther (1988), 39 Ohio St.3d 157, 529 N.E.2d 1377.

Accordingly, we grant Judge McMonagle's motion for summary judgment. Costs to Hughley. It is further ordered that the Clerk of the Eighth District Court of Appeals serve notice of this judgment upon all parties as required by Civ. R. 58(B).

Writ denied.

KENNETH A. ROCCO, J., and MARY EILEEN KILBANE, J., CONCUR

¹ As of the date of this entry, Hughley's appeal of the resentencing remains pending. See State v. Hughley, Cuyahoga App. No. 92588. *Page 1

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JOURNAL ENTRY AND OPINION Kevin Hughley has filed a complaint for a writ of mandamus, through which he seeks an order to compel Judge Timothy McMonagle "to re-sentence void remand re-sentence from remand order from appeals Case # 90323 that was inflicted on 12/22/08 to stop false imprisonment." Judge McMonagle has filed a motion for summary judgment, which we grant for the following reasons.

This court, in State v. Hughley, Cuyahoga App. No. 90323,2008-Ohio-6146, affirmed Hughley's conviction for seven counts of forgery, six counts of uttering, and six counts of tampering with records, but reversed and remanded for resentencing with regard to the six counts of tampering with records. On December 24, 2008, *Page 3 Judge McMonagle resentenced Hughley. On December 24, 2008, Hughley appealed Judge McMonagle's resentencing to this court.¹ On January 23, 2009, Hughley filed his complaint for a writ of mandamus.

Judge McMonagle is entitled to summary judgment as a matter of law. Mandamus will not issue where there exists a plain and adequate remedy in the ordinary course of the law. State ex rel. Ullmann v. Hayes,103 Ohio St.3d 405, 2004-Ohio-5469, 816 N.E.2d 245. Since Hughley has filed an appeal with regard to Judge McMonagle's resentencing, this court is prevented from issuing a writ of mandamus. State ex rel. Jaffal v.Calabrese, 105 Ohio St.3d 440, 2005-Ohio-2591, 828 N.E.2d 107. In addition, any sentencing errors rendered by a court that possesses proper jurisdiction cannot be remedied by an extraordinary writ.Majoros v. Collins (1992), 64 Ohio St.3d 442, 596 N.E.2d 1038; State exrel. Corrigan v. Lawther (1988), 39 Ohio St.3d 157, 529 N.E.2d 1377.

Accordingly, we grant Judge McMonagle's motion for summary judgment. Costs to Hughley. It is further ordered that the Clerk of the Eighth District Court of Appeals serve notice of this judgment upon all parties as required by Civ. R. 58(B).

Writ denied.

KENNETH A. ROCCO, J., and MARY EILEEN KILBANE, J., CONCUR

¹ As of the date of this entry, Hughley's appeal of the resentencing remains pending. See State v. Hughley, Cuyahoga App. No. 92588. *Page 1

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2009 Ohio 1259, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hughley-v-mcmonagle-92713-3-16-2009-ohioctapp-2009.

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