[Cite as State ex rel. Collins v. Saffold, 2012-Ohio-278.]


                 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, 2008-Ohio-578. The Supreme Court of Ohio did not accept Collins’s appeal for

review.   State v. Collins, 118 Ohio St.3d 1510, 2008-Ohio-3369, 889 N.E.2d 1027.

      {¶ 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, 99 Ohio St.3d 463, 2003-Ohio-4165, 793 N.E.2d 473.

Yet, in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, 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, 125 Ohio St.3d 449, 2010-Ohio-2111, 928 N.E.2d 1092.

       {¶ 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, 114 Ohio St.3d 199, 2007-Ohio-3832, 870 N.E.2d 1190

(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, 2000 WL 1060605 (Aug. 3,

2000), aff’d, State ex rel. Sherrills v. State, 91 Ohio St.3d 133, 2001-Ohio-299, 742

N.E.2d 651.

       {¶ 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.
