[Cite as State ex rel. Allen v. Sutula, 2014-Ohio-505.]


                  Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                        No. 100743



                 STATE EX REL., BRANDON M. ALLEN
                                                                 RELATOR

                                                          vs.

                        JUDGE KATHLEEN A. SUTULA
                                                                 RESPONDENT




                                           JUDGMENT:
                                          WRIT DISMISSED


                                             Writ of Mandamus
                                             Motion No. 471253
                                             Order No. 471791

        RELEASE DATE: February 11, 2014
RELATOR

Brandon M. Allen, pro se
Inmate #620-533
P.O. Box 788
Mansfield, Ohio 44901

ATTORNEY FOR RESPONDENT

Timothy J. McGinty
Cuyahoga County Prosecutor
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

       {¶1}   Relator, Brandon M. Allen, has filed with this court various affidavits that

purport to support a mandamus action against respondent, Judge Kathleen A. Sutula.

Respondent has moved for dismissal of the action, which we grant for the reasons that

follow.

       {¶2} Relator failed to commence an action by way of petition or complaint as

required by law. Loc.App.R. 45(B). In State ex rel. Simms v. Sutula, 81 Ohio St.3d

110, 111, 689 N.E.2d 564 (1988), the Supreme Court of Ohio affirmed the court of

appeals’ dismissal of a writ action by holding: “original actions for extraordinary relief,

e.g., a writ of procedendo, must be commenced by filing a complaint or petition rather

than a motion.” See also State ex rel. Foster v. Buchanan, 8th Dist. Cuyahoga No.

85962, 2006-Ohio-2061 (dismissing relator’s motion for a writ of mandamus as

procedurally defective). A court may sua sponte dismiss a petition for an extraordinary

writ when it is improperly captioned. Maloney v. Court of Common Pleas of Allen Cty.,

173 Ohio St. 226, 227, 181 N.E.2d 270 (1962); Turner v. State, 8th Dist. Cuyahoga No.

94292, 2010-Ohio-683, ¶ 2.

       {¶3} In addition, Allen complains in his affidavits that the trial court erred by

imposing maximum, consecutive sentences in an unspecified criminal matter. Assuming

he seeks a writ of mandamus to compel the correction of an alleged sentencing error, he

cannot establish the requirements for mandamus. The requisites for mandamus are well

established: 1) the relator must establish a clear legal right to the requested relief; 2) the
respondent must possess a clear legal duty to perform the requested relief; and 3) the

relator does not possesses nor possessed an adequate remedy at law. State ex rel. Tran.

v. McGrath, 78 Ohio St.3d 45, 676 N.E.2d 108 (1997). If any sentencing error occurred,

Allen has or had an adequate remedy at law through a direct appeal or a motion to file a

delayed appeal. State ex rel. Culgan v. Kimbler, 132 Ohio St.3d 480, 2012-Ohio-3310,

974 N.E.2d 88 (“insofar as Culgan argues that one of his sentences is erroneous because

there is no authorization for consecutive six-month jail sentences, he had an adequate

remedy by appeal to raise his claim of sentencing error.”); Dunning v. State, 8th Dist.

Cuyahoga No. 84982, 2004 Ohio App. LEXIS 6818 (Oct. 14, 2004); App.R. 5.

         {¶4} For all of these reasons, respondent’s motion to dismiss is granted. Costs to

be assessed against relator. It is further ordered that the Clerk of the Eighth District

Court of Appeals serve notice of this judgment upon all parties as required by Civ.R.

58(B).

         {¶5} Writ dismissed.




MARY EILEEN KILBANE, JUDGE

MELODY J. STEWART, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
