State ex rel. Breedlove v. Henson

2011 Ohio 1078

• Court: Ohio Court of Appeals
• Decided: March 9, 2011
• Docket: 10CA121
• Status: Published

Opinion

[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/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY