[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Smith v. Hall, Slip Opinion No. 2016-Ohio-1052.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.




                          SLIP OPINION NO. 2016-OHIO-1052
 THE STATE EX REL. SMITH, APPELLANT, v. HALL, JUDGE, ET AL., APPELLEES.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Smith v. Hall, Slip Opinion No. 2016-Ohio-1052.]
Prohibition―Claim that conviction was based on dismissed indictment held to be
        without merit due to relator’s reindictment―Relator had adequate remedy
        in appeal―Writ denied.
  (No. 2015-0201—Submitted December 15, 2015—Decided March 17, 2016.)
      APPEAL from the Court of Appeals for Montgomery County, No. 26386.
                                 _____________________
        Per Curiam.
        {¶ 1} Relator-appellant, James Smith, appeals from the decision of the
Second District Court of Appeals dismissing his claim for a writ of prohibition
against respondent-appellees, Judge Michael T. Hall and his successor, Judge
                                SUPREME COURT OF OHIO




Dennis J. Adkins.1 Smith contends that Judge Hall lacked jurisdiction in his case
because his conviction and sentencing arose from an indictment that had been
dismissed by the court prior to trial.
        {¶ 2} The court of appeals correctly held that Smith has no clear legal right
to a writ of prohibition because he had, and used, adequate legal remedies in the
ordinary course of the law.
        {¶ 3} We affirm.
                                            Facts
        {¶ 4} In September 2004, James Smith was indicted in the Montgomery
County Common Pleas Court on one count of aggravated burglary and one count
of rape, in case No. 2004-CR-03060. In February 2005, he was reindicted on the
same two counts, in addition to one count of cocaine possession, in case No. 2004-
CR-03060-B. The trial court then dismissed the September 2004 indictment. The
cocaine charge was later severed for a separate trial. In March 2005, a jury found
Smith guilty of aggravated burglary and rape, and he was sentenced to an aggregate
term of 17 years in prison. This conviction has been appealed unsuccessfully, see
2d Dist. Montgomery No. 21058, 2006-Ohio-2365, and has been challenged in
multiple actions for writs of habeas corpus and mandamus.
        {¶ 5} In 2012, Smith filed a motion for a new trial, arguing that he was
denied his right to effective assistance of counsel because he was convicted on a
dismissed indictment. The trial court denied the motion, and Smith appealed to the
Second District Court of Appeals. The Second District noted that the basis for his
appeal—that he was convicted on a dismissed indictment—was without merit:
“[t]his was simply not the case. The 2005 re-indictment was not dismissed and he
was convicted on that indictment.” State v. Smith, 2d Dist. Montgomery No. 25733,



1
 Judge Hall left the common pleas court in 2011 when he was elected to the Second District Court
of Appeals. His appointed successor, Judge Dennis J. Adkins, is also named as a respondent.




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2014-Ohio-1119, ¶ 6. Smith appealed, but we declined review. State v. Smith, 139
Ohio St.3d 1420, 2014-Ohio-2487, 10 N.E.3d 739.
        {¶ 6} Smith filed this original action in the Second District Court of Appeals
in September 2014, seeking a writ of prohibition against Judges Hall and Adkins.
In his complaint Smith reiterated his claim that he had been convicted and
sentenced on a dismissed indictment. The Second District determined that because
Smith was using prohibition as a substitute for appeal to correct an allegedly
erroneous trial court result, a writ of prohibition was not appropriate. The court of
appeals also held that because Smith was seeking release from prison, habeas
corpus rather than prohibition was the appropriate action.
                                      Analysis
        {¶ 7} To be entitled to a writ of prohibition, Smith must establish that (1)
Judge Hall or Judge Adkins is about to exercise judicial or quasi-judicial power, (2)
the exercise of that power is unauthorized by law, and (3) denying the writ would
result in injury for which no other adequate remedy exists in the ordinary course of
law. State ex rel. Bell v. Pfeiffer, 131 Ohio St.3d 114, 2012-Ohio-54, 961 N.E.2d
181, ¶ 18. The last two elements can be met by a showing that the trial court
“patently and unambiguously” lacked jurisdiction.         Chesapeake Exploration,
L.L.C. v. Oil & Gas Comm., 135 Ohio St.3d 204, 2013-Ohio-224, 985 N.E.2d 480,
¶ 11.
        {¶ 8} The court of appeals was correct in finding that Smith is not entitled
to a writ of prohibition. “ ‘[P]rohibition will [not] issue if the party seeking
extraordinary relief has an adequate remedy in the ordinary course of law.’ ” State
ex rel. Caskey v. Gano, 135 Ohio St.3d 175, 2013-Ohio-71, 985 N.E.2d 453, ¶ 2,
quoting Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843 N.E.2d
1202, ¶ 12. An appeal is considered an adequate remedy that will preclude a writ
of prohibition. “Unless a relator establishes a patent and unambiguous lack of
jurisdiction, extraordinary relief in prohibition * * * will not issue, because the




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relator has an adequate remedy by appeal.” Id., citing State ex rel. Skyway Invest.
Corp. v. Ashtabula Cty. Court of Common Pleas, 130 Ohio St.3d 220, 2011-Ohio-
5452, 957 N.E.2d 24, ¶ 10.
       {¶ 9} Smith asserts that the trial court did not have subject-matter
jurisdiction because the indictment from the original case, case No. 2004-CR-
03060, was dismissed.      Smith argues that the “nolle indictment” causes his
conviction and sentence to become “invalid and void.”
       {¶ 10} Smith’s claim fails for two reasons. First, Smith’s argument that he
was convicted on a dismissed indictment is wrong because he was reindicted.
Smith was lawfully convicted and sentenced under the second indictment, and
Judge Hall had the jurisdiction to try him under that indictment.
       {¶ 11} Second, his claim could have been brought up on direct appeal, and
this specific claim was in fact considered and rejected in an appeal to the Second
District of the denial of his motion for a new trial. 2014-Ohio-1119, ¶ 6. Smith
had adequate remedies in the ordinary course of the law.
                                    Conclusion
       {¶ 12} Because Smith has adequate remedies in the ordinary course of the
law, we affirm the court of appeals’ dismissal of his complaint for a writ of
prohibition.
                                                                Judgment affirmed.
       O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
                               _________________
       James Smith, pro se.
       Michael DeWine, Attorney General, and Tiffany L. Carwile and Sarah E.
Pierce, Assistant Attorneys General, for appellee Judge Michael T. Hall.
                               _________________




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