State ex rel. Koller v. Sutula

2012 Ohio 369

• Court: Ohio Court of Appeals
• Decided: January 30, 2012
• Docket: 97173
• Status: Published

Opinion

[Cite as State ex rel. Koller v. Sutula, 2012-Ohio-369.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 97173

STATE OF OHIO, EX REL., KEVIN KOLLER RELATOR

vs.

JUDGE KATHLEEN ANN SUTULA RESPONDENT

JUDGMENT: COMPLAINT DISMISSED

Writ of Mandamus and/or Procedendo Motion No. 447575 Order No. 451439

RELEASED DATE: January 30, 2012 FOR RELATOR

Kevin Koller Inmate No. 522-019 Mansfield Correctional Instit. P. O. Box 788 Mansfield, OH 44901

ATTORNEYS FOR RESPONDENT

William D. Mason Cuyahoga County Prosecutor

By: James E. Moss The Justice Center 1200 Ontario Street, 9th fl. Cleveland, OH 44113

PATRICIA ANN BLACKMON, A.J.:

{¶ 1} Relator, Kevin Koller, is the defendant in State v. Koller, Cuyahoga Cty.

Court of Common Pleas Case No. CR-483464, which has been assigned to respondent

judge. Koller contends that his sentence is void because the court of common pleas did

not properly address allied offenses. He requests that this court issue writs of mandamus

and/or procedendo compelling respondent to sentence him “to a lawful sentence.”

Complaint, Ad Damnum Clause.

{¶ 2} This court affirmed the judgment of the court of common pleas in State v.

Koller, 8th Dist. No. 89606, 2008-Ohio-806. The Supreme Court of Ohio denied

Koller’s motion for leave to file delayed appeal in State v. Koller, 119 Ohio St.3d 1440, 2008-Ohio-4487, 893 N.E.2d 513.

{¶ 3} Respondent has filed a motion to dismiss and argues that relief in

mandamus and/or procedendo is not appropriate. We agree.

{¶ 4} Koller may not address his allied offense claims through an original action

in this court. “[A]llied offense claims and sentencing issues are not jurisdictional. Thus,

they are properly addressed on appeal and not through an extraordinary writ.” (Citations

omitted.) State ex rel. Martin v. Russo, 8th Dist. No. 96328, 2011-Ohio-3268, aff’d 130

Ohio St.3d 269, 2011-Ohio-5516, 957 N.E.2d 769. Clearly, relief in mandamus and/or

procedendo is not appropriate in this action.

{¶ 5} Additionally, we note that Koller has not complied with Loc.App.R.

45(B)(1)(a) which provides that a complaint in an original action “must be supported by

an affidavit from the plaintiff or relator specifying the details of the claim.” In the

operative portion of Koller’s affidavit, he merely avers that “[t]he statements contained in

paragragph 1 through 11 in the Complaint/petition for Writ of Mandamus and/or

Procedendo are accurate representation of the actual events in the Relator’s crminal

case[.]” (Capitalization and spelling in original.). Koller Affidavit, ¶ 2. Koller’s

conclusory statement is not sufficient to comply with Loc.App.R. 45(B)(1)(a) and is a

ground for denying relief in this action. See, e.g., State ex rel. Carter v. Astrab, 8th Dist.

No. 97072, 2011-Ohio-6301.

{¶ 6} Accordingly, respondent’s motion to dismiss 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).

Complaint dismissed.

PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE

LARRY A. JONES, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR.