[Cite as State ex rel. Collins v. Saffold,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 97494

STATE OF OHIO, EX REL., SHAWN COLLINS RELATOR

vs.

JUDGE SHIRLEY STRICKLAND SAFFOLD RESPONDENT

JUDGMENT: COMPLAINT DISMISSED

Writ of Mandamus Motion Nos. 449286 and449633 Order No. 451313

RELEASED DATE: January 24, 2012 FOR PETITIONER

Shawn Collins Inmate No. 522-186 Mansfield Correctional Inst. P. O. Box 788 Mansfield, OH 44901

ATTORNEYS FOR RESPONDENT

William D. Mason Cuyahoga County Prosecutor

James E. Moss Assistant Prosecuting Attorney The Justice Center 1200 Ontario St., 8th Fl. Cleveland, OH 44113

MARY J. BOYLE, J.:

{¶ 1} Relator, Shawn Collins, is the defendant in State v. Collins, Cuyahoga Cty.

Court of Common Pleas Case No. CR-488472, which has been assigned to respondent

judge. Collins avers that respondent erred in sentencing him and that his trial and

appellate counsel were ineffective.

{¶ 2} This court affirmed Collins’s conviction. State v. Collins, 8th Dist. No.

89529,

. The Supreme Court of Ohio did not accept Collins’s appeal for

review. State v. Collins,

,

,

.

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

mandamus is not appropriate. We agree. {¶ 4} Collins contends that respondent failed to comply with the sentencing

requirements of R.C. 2929.14(E)(4) and 2929.19(B)(2)(c). In support of this argument,

Collins relies on State v. Comer,

,

,

.

Yet, in State v. Foster,

,

,

, the Supreme

Court abrogated Comer and severed the provisions in the Revised Code on which Collins

relies because they required judicial fact-finding.

{¶ 5} Additionally, Collins had a remedy by way of appeal to raise claims of

sentencing errors. Relief in mandamus is not, therefore, appropriate. State ex rel.

Cotton v. Russo,

,

,

.

{¶ 6} Likewise, as is the case with any original action, relief is not appropriate if

the relator has an adequate remedy in the ordinary course of the law. Appeal and

postconviction relief are remedies for challenging the effectiveness of trial counsel.

Compare Everett v. Eberlin,

,

,

(denying relief in habeas corpus). Similarly, an application for reopening under App.R.

26(B) is the remedy for asserting the ineffective assistance of appellate counsel. State ex

rel. Sherrills v. State, 8th Dist.. No. 78261, unreported,

(Aug. 3,

2000), aff’d, State ex rel. Sherrills v. State,

,

,

.

{¶ 7} Clearly, mandamus does not lie to challenge the propriety of Collins’s

sentence or to assert the ineffectiveness of trial and appellate counsel. Collins’s

complaint does not, therefore, state a claim upon which relief can be granted. {¶ 8} 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.

MARY J. BOYLE, JUDGE

MARY EILEEN KILBANE, P.J., and EILEEN A. GALLAGHER, J., CONCUR.