State ex rel. Elliott v. Haas

2011 Ohio 1037

Opinion

[Cite as State ex rel. Elliott v. Haas, 2011-Ohio-1037.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE EX REL. BRADLEY ELLIOTT : Hon. W. Scott Gwin, P.J. : Hon. Julie A. Edwards, J. Relator : Hon. Patricia A. Delaney, J. : -vs- : : Case No. 2010-CA-00281 HONORABLE JOHN G. HAAS : : Respondent : OPINION

CHARACTER OF PROCEEDING: Writ of Mandamus

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: March 7, 2011

APPEARANCES:

For: Relator For: Respondent

BRADLEY ELLIOTT PRO SE KATHLEEN O. TATARSKY BECI Assistant Prosecuting Attorney Box 540 Appellate Section St. Clairsville, OH 43950 Stark County Prosecutor’s Office 110 Central Plaza South, Ste. 510 Canton, OH 44702-1413 [Cite as State ex rel. Elliott v. Haas, 2011-Ohio-1037.]

Gwin, P.J.

{¶1} Relator, Bradley Elliott, has filed a Petition for Writ of Mandamus

challenging the trial court’s imposition of court costs without having considered Relator’s

ability to pay. Respondent has also filed an Answer as well as a motion to dismiss or

motion for summary judgment.

{¶2} For a writ of mandamus to issue, the relator must have a clear legal right

to the relief prayed for, the respondent must be under a clear legal duty to perform the

requested act, and relator must have no plain and adequate remedy in the ordinary

course of law. State, ex rel. Berger, v. McMonagle (1983), 6 Ohio St.3d 28, 6 OBR 50,

451 N.E.2d 225.

{¶3} We have previously held, the appropriate forum for challenging court costs

is by way of appeal from the sentencing entry; therefore, an adequate remedy at law

exists for making such a challenge. See State of Ohio ex rel. Biros v. Logan, 2003 WL

22326666, *2 (Ohio App. 11 Dist.) ( [T]he propriety of a decision to impose court costs

on a convicted defendant can only be contested in a direct appeal from the sentencing

judgment.). See Wuescher v. Whitney 2008 WL 142575, 1 (Ohio App. 5 Dist.) and State

ex rel. Bachman v. Heath, 2010 WL 320478, 2 (Ohio App. 5 Dist.).

{¶4} Other courts have similarly held, “[A defendant’s] legal remedy to

challenge the court's imposition of court costs [is] by direct appeal of his sentencing

entry. Threatt, supra. See, also, State ex rel. Biros v. Logan, Trumbull App. No.2003-T-

0016, at ¶ 10 (finding that res judicata bars relator from collaterally attacking an order

imposing court costs in a mandamus action). State v. Russell, 2011 WL 334184, 3

(Ohio App. 2 Dist.). Stark County, Case No. 2010-CA-00281 3

{¶5} Because Relator has or had an adequate remedy at law to challenge the

imposition of court costs, a writ of mandamus does not lie. For this reason, we grant

Respondent’s motion to dismiss.

{¶6} RESPONDENT’S MOTION TO DISMISS GRANTED.

{¶7} PETITION DISMISSED.

{¶8} COSTS TO RELATOR.

{¶9} IT IS SO ORDERED.

By Gwin, P.J.,

Edwards, J., and

Delaney, J., concur

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. JULIE A. EDWARDS

_________________________________ HON. PATRICIA A. DELANEY

WSG:clw 0209 [Cite as State ex rel. Elliott v. Haas, 2011-Ohio-1037.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE EX REL. BRADLEY ELLIOTT : : Relator : : : -vs- : JUDGMENT ENTRY : HONORABLE JOHN G. HAAS : : : Respondent : CASE NO. 2010-CA-00281

For the reasons stated in our accompanying Memorandum-Opinion, Respondent’s

Motion to Dismiss is granted, and the instant cause is dismissed. Costs to Relator.