[Cite as State ex rel. Martin v. Russo, 2011-Ohio-3268.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                         No. 96328



                               STATE OF OHIO, EX REL.,
                                 TRAMAINE MARTIN


                                                    RELATOR

                                                       vs.


                                           JUDGE MICHAEL J. RUSSO


                                  RESPONDENT



                                            JUDGMENT:
                                            WRIT DENIED


                                            Writ of Mandamus
                                            Motion No. 442207
                                            Order No. 443714
       RELEASE DATE: June 28, 2011

FOR RELATOR

Tramaine Martin Pro se
Inmate No. A584-538
Richland Correctional Institution
P.O. Box 8107
Mansfield, Ohio 44901

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: James E. Moss
Assistant Prosecuting Attorney
The Justice Center, 8 Floor
                     ht




1200 Ontario Street
Cleveland, Ohio 44113




LARRY A. JONES, J.:

       {¶ 1} On January 25, 2011, the relator, Tramaine Martin, commenced this mandamus

action against the respondent, Judge Michael J. Russo, to compel the judge to vacate Martin’s

sentence in the underlying case, State v. Martin, Cuyahoga County Common Pleas Court Case

No. CR-532936 and resentence him.        The gravamen of Martin’s argument is that the
consecutive sentences for receiving stolen property and failure to comply are void because

they involve allied offenses.

        {¶ 2} On February 22, 2011, the respondent judge, through the Cuyahoga County

Prosecutor, moved for summary judgment on the grounds of adequate remedy at law and res

judicata.     Martin filed his brief in opposition on March 9, 2011.   For the following reasons,

this court grants the respondent’s motion for summary judgment and denies the application for

a writ of mandamus.

        {¶ 3} In the underlying case, the police observed Martin driving on the wrong side of

the street.    When the police attempted to stop him, he fled.    Eventually, he abandoned the

car but was captured.      The police then discovered that the car Martin had driven was stolen.

 The grand jury indicted Martin on three counts of failure to comply with the signal or order

of a police officer, one count of possession of criminal tools, and one count of receiving stolen

property.

        {¶ 4} Martin entered into a plea agreement.       He pleaded guilty to receiving stolen

property and one count of failure to comply, and the other charges were nolled.        The judge

sentenced him to 15 months for failure to comply consecutive to nine months for receiving

stolen property.

        {¶ 5} On appeal, this court rejected his four assignments of error: (1) the trial court

improperly sentenced him on both counts because they were allied offenses;           (2) the trial
court improperly imposed a lifetime driver’s license suspension because, as applied to him, it

is an ex post facto law;     (3) the indictments were defective because they failed to allege a

mens rea element; and (4) his speedy trial rights were violated. State v. Martin, Cuyahoga

App. No. 95281, 2011-Ohio-222.

       {¶ 6} Martin now resurrects his argument on allied offenses.              He submits that the

offense of failure to comply is inseparable from the offense of receiving stolen property.          He

fled because he knew he was driving stolen property; the failure to comply was in furtherance

of receiving stolen property.     It is just one continuous transgression with the same animus.
                                                                                                       1




Martin further submits that the failure to apply the principles of allied offenses to his

sentencing renders the sentence void and subject to collateral attack through the extraordinary

writ of mandamus.

       {¶ 7} The requisites for mandamus are well established: (1) the relator must have a

clear legal right to the requested relief, (2) the respondent must have a clear legal duty to

perform the requested relief and (3) there must be no adequate remedy at law. State ex rel.

Ney v. Niehaus (1987), 33 Ohio St.3d 118, 515 N.E.2d 914.             Furthermore, mandamus is not

a substitute for appeal. State ex rel. Keenan v. Calabrese (1994), 69 Ohio St.3d 176, 631


       1
           This reasoning is ill-founded. When Martin drove the stolen car, he committed the offense
of receiving stolen property. When he saw the officer’s signal, he then had the choice to obey or
flee, to renounce further wrongdoing or compound his problems. When he chose to flee, at that
time, he committed the separate offense of failure to comply, even if he conceptualized it as furthering
the crime of receiving stolen property.
N.E.2d 119; State ex rel. Daggett v. Gessaman (1973), 34 Ohio St.2d 55, 295 N.E.2d 659; and

State ex rel. Pressley v. Indus. Comm. of Ohio (1967), 11 Ohio St.2d 141, 228 N.E.2d 631,

paragraph three of the syllabus.        Furthermore, if the relator had an adequate remedy,

regardless of whether it was used, relief in mandamus is precluded. State ex rel. Tran v.

McGrath, 78 Ohio St.3d 45, 1997-Ohio-245, 676 N.E.2d 108, and State ex rel. Boardwalk

Shopping Ctr., Inc. v. Court of Appeals for Cuyahoga Cty. (1990), 56 Ohio St.3d 33, 564

N.E.2d 86.

         {¶ 8} First, allied offense claims and sentencing issues are not jurisdictional.   Thus,

they are properly addressed on appeal and not through an extraordinary writ. Smith v.

Voorhies, 119 Ohio St.3d 345, 2008-Ohio-4479, 894 N.E.2d 44; State ex rel. Dye v. Alvis

(1949), 86 Ohio App. 137, 90 N.E.2d 416; State v. Newell, Cuyahoga App. No. 89016,

2007-Ohio-400; and State ex rel. Oden v. Character (Sept. 26, 1994), Cuyahoga App. No.
                   2




67734.       Similarly, appeal, and not mandamus, is the proper remedy for addressing issues of

double jeopardy and ex post facto law.         State ex rel. Rattlif v. Sutula (Jan. 21, 1997),

Cuyahoga App. No. 71760, and State ex rel. Nash v. McMonagle (July 10, 1997), Cuyahoga

App. No. 72357.

         {¶ 9} Moreover, in this case, Martin has already appealed these issues and used his

adequate remedy at law, which precludes relief in mandamus.         Res judicata further bars this



         Although Voorhies, Alvis and Newell are habeas corpus cases, their rulings on adequate
         2
litigation.
            3




        {¶ 10} Accordingly, this court grants the respondent’s motion for summary judgment

and denies the application for a writ of mandamus.           Costs assessed against relator.     The

court directs the clerk of the Eighth District Court of Appeals to serve upon the parties notice

of this judgment and its date of entry upon the journal. Civ.R. 58(B).

        Writ denied.




LARRY A. JONES, PRESIDING JUDGE

COLLEEN CONWAY COONEY, J., and
KENNETH A. ROCCO, J., CONCUR




remedy at law apply to all the extraordinary writs.
        3
         To the extent that Martin’s complaint for mandamus also seeks to include the judge’s
suspension of his driver’s license, the principles of adequate remedy at law and res judicata also bar
that claim.
