State ex rel. King v. Fleegle

2019 Ohio 4932

• Court: Ohio Court of Appeals
• Decided: November 25, 2019
• Docket: CT2019-0081
• Status: Published

Opinion

[Cite as State ex rel. King v. Fleegle, 2019-Ohio-4932.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE EX REL. RICHARD KING : Hon. W. Scott Gwin, P.J. : Hon. Patricia A. Delaney, J. Relator : Hon. Craig R. Baldwin, J. : -vs- : : Case No. CT2019-0081 JUDGE MARK C. FLEEGLE : : Respondent : OPINION

CHARACTER OF PROCEEDING: Writ of Mandamus

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: November 25, 2019

APPEARANCES:

For Relator For Respondent

RICHARD KING #489-103, Pro Se D. MICHAEL HADDOX North Central Correctional Institution Prosecuting Attorney Box 1812 By MARK A. ZANGHI Marion, OH 43301 Assistant Prosecuting Attorney Box 189 Zanesville, OH 43702-0189 [Cite as State ex rel. King v. Fleegle, 2019-Ohio-4932.]

Gwin, P.J.

{¶1} On November 1, 2019, Richard King filed a petition for writ of mandamus

requesting that this Court order Judge Mark C. Fleegle to “correct his sentence that is

contrary to law and void.”1 Mr. King contends his sentence is contrary to law and void

because Judge Fleegle imposed an eight-year prison term rather than an eighteen-month

sentence for an alleged fourth degree felony count of pandering obscenity to a minor.

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

(Citation omitted.) State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28, 29, 451 N.E.2d

225 (1983). The Muskingum County Prosecutor, on behalf of Judge Fleegle, has moved

to dismiss Mr. King’s writ.

{¶3} A court is permitted to dismiss a mandamus action under Civ.R. 12(B)(6)

for failure to state a claim upon which relief can be granted “if, after all factual allegations

of the complaint are presumed true and all reasonable inferences are made in the relator’s

favor, it appears beyond doubt that he can prove no set of facts entitling him to the

requested writ of mandamus.” State ex rel. Russell v. Thornton, 111 Ohio St.3d 409,

2006-Ohio-5858, 856 N.E.2d 966, ¶9.

{¶4} Mr. King’s writ alleges a sentencing error. He claims the trial court

improperly sentenced him to an eight-year prison term, for count one of the indictment,

pandering obscenity involving a minor. He claims this count is a fourth degree felony and

1 On September 27, 2019, this Court dismissed a Writ of Mandamus filed by Mr. King wherein he argued the same grounds for relief that he asserts here. See State ex rel. King v. Fleegle, 5th Dist. Muskingum No. CT2019-0013, 2019-Ohio-4038. Muskingum County, Case No. CT2019-0081 3

as such, he could only be sentenced to a maximum sentence of eighteen months. This

claim is not cognizable in mandamus. “[S]entencing errors are generally not remediable

by extraordinary writ, because the defendant usually has an adequate remedy at law

available by way of direct appeal.” State ex rel. Ridenour v. O’Connell, 147 Ohio St.3d

351, 2016-Ohio-7368, 65 N.E.3d 742, ¶3. Here, Mr. King had an adequate remedy at law

because he could have and did challenge his sentence on direct appeal and by way of

post-conviction relief. See State ex rel. King v. Fleegle, 5th Dist. Muskingum No. CT2019-

0013, 2019-Ohio-4038, ¶8, which reviews the various legal proceedings Mr. King has

previously pursued to challenge his sentence. This basis alone supports granting the

Muskingum County Prosecutor’s Motion to Dismiss Relator’s Successive Petition for Writ

of Mandamus.

{¶5} Further, and as an independent ground, we also note that Mr. King failed to

comply with R.C. 2734.04, which requires: “Application for the writ of mandamus must be

by petition, in the name of the state on the relation of the person applying and verified by

affidavit. * * *” (Emphasis added.) Mr. King did not file a “petition” in support of his

application for writ of mandamus. Although he titles the first page of his pleading a

“Petition for Writ of Mandamus[,]” it is merely an introduction to the relief that he requests.

The next page of Mr. King’s “Petition for Writ of Mandamus” is titled, “Memorandum in

Support.” The petition is not in the form of a complaint. Instead, the “Memorandum in

Support” sets forth in a brief format Mr. King’s argument regarding why he believes he is

entitled to mandamus relief. The failure to include a complaint as part of his Petition for

Writ of Mandamus serves as an independent basis under Civ.R. 12(B)(6) to dismiss Mr.

King’s mandamus petition. Muskingum County, Case No. CT2019-0081 4

{¶6} The clerk of courts is hereby directed to serve upon all parties not in default

notice of this judgment and its date of entry upon the journal. See Civ.R. 58(B).

{¶7} MOTION GRANTED.

{¶8} CAUSE DISMISSED.

{¶9} COSTS TO RELATOR.

{¶10} IT IS SO ORDERED.

By Gwin, P.J.,

Delaney, J., and

Baldwin, J., concur