[Cite as State ex rel. Powe v. Lanzinger,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO EX REL. ORLANDO POWE C.A. No. 29373 Relator

v. ORIGINAL ACTION IN THE HONORABLE JUDGE JILL MANDAMUS LANZINGER

Respondent

Dated: July 31, 2019

PER CURIAM.

{¶1} Orlando Powe has petitioned this Court for a writ of mandamus to dismiss

his judgment of conviction as void or grant the relief he requested in his petition, which

appears to be resentencing on consecutive sentences. Respondent, Judge Jill Lanzinger,

has moved to dismiss. Mr. Powe filed a response to the motion to dismiss along with a

motion for additional time to file the response. That motion is granted, and the response

is deemed timely filed. For the following reasons, this Court grants the motion to dismiss.

{¶2} “For a writ of mandamus to issue, a relator must demonstrate that (1) the

relator has a clear legal right to the relief prayed for, (2) respondent is under a

corresponding clear legal duty to perform the requested acts, and (3) relator has no plain

and adequate legal remedy.” State ex rel. Serv. Emp. Internatl. Union, Dist. 925 v. State

Emp. Relations Bd.,

(1998). The petitioner must demonstrate all C.A. No. 29373 Page 2 of 3

three elements in order for this Court to grant the writ of mandamus. “A court can 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 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,

,

, ¶ 9.

{¶3} Mr. Powe’s complaint alleges that he is entitled to a writ of mandamus for

two reasons: (1) he was not charged by a complaint pursuant to Crim.R. 3, and (2) the

trial court did not engage in fact-finding before imposing consecutive sentences pursuant

to R.C. 2929.14(C). Mr. Powe set forth a history of his criminal proceedings, and post-

judgment filings, in his complaint. He included that he raised the Crim.R. 3 issue in a

motion in the trial court in 2017, followed by an appeal to this Court and, subsequently,

to the Ohio Supreme Court.

{¶4} With respect to alleged legal errors, it is well-established that mandamus

cannot be used as a substitute for appeal to challenge a trial court’s actions. State ex rel.

Richfield v. Laria,

,

. Appeal from an adverse

judgment constitutes an adequate remedy in the ordinary course of law. State ex rel.

Caskey v. Gano,

,

.

{¶5} Mr. Powe could have raised his claims in an appeal from the judgment of

conviction. Any issues regarding a complaint could have been raised on appeal, but the

charging instrument in this case was the indictment, not the complaint. See, e.g., State v.

Miles, 3d Dist. Hancock No. 5-18-06,

. Likewise, any alleged errors C.A. No. 29373 Page 3 of 3

about consecutive sentences could have also been raised on direct appeal. In other words,

appeal provided an adequate remedy for both issues Mr. Powe presented in his petition.

He also failed to allege that Judge Lanzinger owed any duty to him, as required for this

Court to issue a writ of mandamus.

{¶6} Mr. Powe asserted in his complaint that he is now entitled to a writ of

mandamus because he has exhausted his appellate remedies. Exhaustion of remedies is

not a prerequisite to seeking a writ of mandamus. To the contrary, his assertion established

that there were adequate remedies at law, making mandamus relief unavailable.

{¶7} For all of the foregoing reasons, the motion to dismiss is granted, and this

case is dismissed. Costs are taxed to Mr. Powe. 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.

THOMAS A. TEODOSIO FOR THE COURT

CARR, J. SCHAFER, J. CONCUR.

APPEARANCES:

ORLANDO POWE, Pro se, Relator.

SHERRI BEVAN WALSH, Prosecuting Attorney, and COLLEEN SIMS, Assistant Prosecuting Attorney, for Respondent.