[Cite as State ex rel. Briscoe v. Matia, 128 Ohio St.3d 365, 2011-Ohio-760.]




      THE STATE EX REL. BRISCOE, APPELLANT, v. MATIA, JUDGE, ET AL.,
                                        APPELLEES.
  [Cite as State ex rel. Briscoe v. Matia, 128 Ohio St.3d 365, 2011-Ohio-760.]
Mandamus — New trial sought — Appellant had an adequate remedy at law —
        Judgment affirmed.
(No. 2010-1792 — Submitted February 16, 2011 — Decided February 23, 2011.)
              APPEAL from the Court of Appeals for Cuyahoga County,
                               No. 95414, 2010-Ohio-4144.
                                  __________________
        Per Curiam.
        {¶ 1} We affirm the judgment of the court of appeals denying and
dismissing the claim of appellant, Harry Briscoe, for a writ of mandamus to
compel appellees, Cuyahoga County Court of Common Pleas Judge David T.
Matia and Mansfield Correctional Institution Warden Keith Smith, to convey
Briscoe back to the common pleas court for further proceedings in his criminal
case. Briscoe asked to be readjudicated consistent with the court of appeals’
judgment in his previous appeal, State v. Briscoe, Cuyahoga App. No. 89979,
2008-Ohio-6276.1 We affirmed at 124 Ohio St.3d 117, 2009-Ohio-6540, 919
N.E.2d 735.
        {¶ 2} Briscoe was convicted of murder and two counts of aggravated
robbery and various specifications and was sentenced to an aggregate prison term
of 28 years to life. Briscoe, 2008-Ohio-6276, at ¶ 3-5. On appeal, the court of
appeals affirmed Briscoe’s convictions and sentence for murder, one of the

1. The court of appeals subsequently recognized that based on our decision in State v. Horner,
126 Ohio St.3d 466, 2010-Ohio-3830, 935 N.E.2d 26, the pertinent portion of its holding in
Briscoe was no longer viable. See State v. Segines, Cuyahoga App. No. 89915, 2010-Ohio-5112,
¶ 7.
                             SUPREME COURT OF OHIO




aggravated-robbery counts, and the related specifications to these charges,
reversed Briscoe’s convictions and sentence for the remaining aggravated-robbery
count and related specifications, and remanded the cause for further proceedings
consistent with its opinion.    Id. at ¶ 20-21, 29, 35.      On further appeal, we
affirmed. State v. Briscoe, 124 Ohio St.3d 117, 2009-Ohio-6540, 919 N.E.2d
735.
        {¶ 3} On remand, Judge Matia vacated the aggravated-robbery charge
and related specifications that had been reversed by the court of appeals in
Briscoe, 2008-Ohio-6276.       Briscoe’s aggregate prison sentence remained the
same – 28 years to life. Briscoe appeared in court for the resentencing in May
2010 and for the court’s correction of a clerical error in sentencing in August
2010.
        {¶ 4} When Briscoe was not transferred to the Cuyahoga County sheriff
for a new trial, he filed a petition in the court of appeals for a writ of mandamus to
compel appellees to transfer him pursuant to R.C. 2953.13, which directs:
        {¶ 5} “If a new trial is ordered or the case is remanded, the warden shall
forthwith cause the defendant to be conveyed to the jail of the county in which the
defendant was convicted, and committed to the custody of the sheriff of that
county.”
        {¶ 6} The court of appeals denied and dismissed Briscoe’s writ claim.
State ex rel. Briscoe v. Matia, Cuyahoga App. No. 95414, 2010-Ohio-4144.
        {¶ 7} In this appeal, instead of claiming entitlement to the writ of
mandamus requesting that he be conveyed to the common pleas court under R.C.
2953.13, Briscoe seeks the writ to “compel the trial court to provide [him] with a
new trial” or “dismiss the case * * * entirely” because of structural error. Briscoe
waived these claims because he failed to plead them in his petition. See State ex
rel. Scruggs v. Sadler, 102 Ohio St.3d 160, 2004-Ohio-2054, 807 N.E.2d 357, ¶ 6.




                                          2
                                January Term, 2011




       {¶ 8} Moreover, nothing in the court of appeals’ opinion in Briscoe,
2008-Ohio-6276, required either a new trial or a dismissal of all the crimes for
which Briscoe was convicted and sentenced. In fact, the court of appeals affirmed
Briscoe’s convictions and sentence for murder and for one of the aggravated-
robbery counts with related specifications, and we affirmed that judgment.
Briscoe, 124 Ohio St.3d 117, 2009-Ohio-6540, 919 N.E.2d 735.
       {¶ 9} Briscoe also had an adequate remedy in the ordinary course of law
by way of appeal from Judge Matia’s judgment on remand to raise these claims.
See State ex rel. Voleck v. Powhatan Point, 127 Ohio St.3d 299, 2010-Ohio-5679,
939 N.E.2d 819, ¶ 7 (“Mandamus will not issue when the relators have an
adequate remedy in the ordinary course of law”); R.C. 2731.05.
       {¶ 10} Finally, insofar as Briscoe’s claim for the dismissal of his entire
criminal case essentially seeks release from prison, habeas corpus, and not
mandamus, is the appropriate action. State ex rel. Gordon v. Murphy, 112 Ohio
St.3d 329, 2006-Ohio-6572, 859 N.E.2d 928, ¶ 5.
       {¶ 11} Therefore, Briscoe’s appeal lacks merit, and we affirm the
judgment of the court of appeals. Our disposition of this appeal renders Judge
Matia’s motion to strike Briscoe’s merit brief moot.
                                                             Judgment affirmed.
       O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
                                __________________
       Harry Briscoe, pro se.
                            _____________________




                                        3
