[Cite as Walker v. State, 2014-Ohio-216.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 100415




                             S/O EX REL.,
                       MICHAEL A. WALKER #176-280
                                                         RELATOR

                                                   vs.

                                      STATE OF OHIO
                                                         RESPONDENT




                                      JUDGMENT:
                                  COMPLAINT DISMISSED


                                            Writ of Mandamus
                                            Order No. 470856
                                            Motion No. 469065



        RELEASE DATE: January 21, 2014
FOR RELATOR

Michael Angelo Walker
Inmate No. 176-280
Lake Erie Correctional Institution
P.O. Box 8000
Conneaut, OH 44030-8000


ATTORNEYS FOR RESPONDENT

Timothy J. McGinty
Cuyahoga County Prosecutor
By: James E. Moss
Assistant County Prosecutor
9th Floor Justice Center
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:

       {¶1} On September 17, 2013, the relator, Michael Walker, commenced this

mandamus action against the state of Ohio by and through Cuyahoga County Prosecutor

Timothy McGinty to issue an order vacating his sentences in the underlying case, State v.

Walker, Cuyahoga C.P. No. CR-180834, and remanding the case to the Cuyahoga County

Common Pleas Court for an allied offenses hearing and a de novo sentencing. On

October 15, 2013, the respondent, through the Cuyahoga County Prosecutor, moved to

dismiss. Walker never filed a response. For the following reasons, this court grants the

respondent’s motion to dismiss and dismisses the application for a writ of mandamus.

       {¶2} In the underlying case in 1983, a jury found Walker guilty of aggravated

murder, aggravated burglary, two counts of aggravated robbery, and two counts of

felonious assault.1 The trial judge imposed consecutive sentences for all counts for a

total sentence of 64 years to 105 years and/or life.              Since then, Walker has filed

numerous postconviction motions and appeals; he has exhausted his appellate remedies.

Walker now argues that pursuant to State v. Johnson, 128 Ohio St.3d 153,

2010-Ohio-6314, 942 N.E.2d 1601, and R.C. 2941.25, the trial court has the duty


           On February 25, 1983, Walker, who was carrying a gun, enlisted several acquaintances to
       1


help him steal a television set. They drove to the home of another acquaintance, Joseph Saunders,
who admitted Walker and one of the acquaintances. Walker then pulled out his gun, tied up Joseph
Saunders and his brother, Robert Saunders, whom Walker beat, and put them in the bathroom.
Walker and the acquaintance then rummaged through the home. The Saunders brothers escaped
from the bathroom and tried to leave. Walker intercepted Joseph Saunders in the front of the building.
  After a struggle, he aimed his gun and shot and killed Joseph.
enforceable in mandamus to revisit the convictions and sentences to determine if any of

the offenses should merge as allied offenses.2

       {¶3} Walker has no right to have his convictions and sentences reviewed

pursuant to Johnson. New judicial rulings may only be applied to cases that are pending

on the announcement date; they may not be applied retroactively to a conviction that has

become final, i.e., an accused has exhausted his appellate remedies. Ali v. State, 104

Ohio St.3d 328, 2004-Ohio-6592, 819 N.E.2d 687. Specifically, the courts of Ohio have

ruled that Johnson does not apply retroactively.             State v. Bork, 6th Dist. Lucas No.

L-12-1221, 2013-Ohio-3974; State v. Collins, 2d Dist. Montgomery No. 25612,

2013-Ohio-3645; and State v. Thompkins, 10th Dist. Franklin No. 12AP-1080,

2013-Ohio-3599.

       {¶4} Furthermore, claims of sentencing errors, including allied offenses claims,

are not cognizable in extraordinary writ actions. Smith v. Voorhies, 119 Ohio St.3d 345,



         The requisites for mandamus are well established: (1) the relator must have a clear legal right
       2


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. Additionally, although mandamus may be used to
compel a court to exercise judgment or to discharge a function, it may not control judicial discretion,
even if that discretion is grossly abused. State ex rel. Ney v. Niehaus, 33 Ohio St.3d 118, 515 N.E.2d
914 (1987). Mandamus is not a substitute for appeal. State ex rel. Keenan v. Calabrese, 69 Ohio
St.3d 176, 631 N.E.2d 119 (1994); and State ex rel. Pressley v. Indus. Comm. of Ohio, 11 Ohio St.2d
141, 228 N.E.2d 631 (1967), 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. Moreover, mandamus is an
extraordinary remedy that is to be exercised with caution and only when the right is clear. It should
not issue in doubtful cases. State ex rel. Taylor v. Glasser, 50 Ohio St.2d 165, 364 N.E.2d 1 (1977).
2008-Ohio-4479, 894 N.E.2d 44, and State ex rel. Agosto v. Gallagher, 8th Dist.

Cuyahoga No. 96670, 2011-Ohio-4514.

       {¶5} Accordingly, this court grants the respondent’s motion to dismiss and

dismisses the application for a writ of mandamus. Relator to pay costs. This court

directs the clerk of court to serve all parties notice of this judgment and its date of entry

upon the journal as required by Civ.R. 58(B).

       {¶6} Writ dismissed.


__________________________________________
TIM McCORMACK, JUDGE

MARY J. BOYLE, A.J., and
PATRICIA ANN BLACKMON, J., CONCUR
