[Cite as State ex rel. Agosto v. Gallagher, 2011-Ohio-4514.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                        No. 96670




                                 STATE OF OHIO EX REL.
                                     JOSE AGOSTO
                                                               RELATOR

                                                       vs.

                   JUDGE HOLLIE L. GALLAGHER, ET AL.
                                                               RESPONDENTS




                                            JUDGMENT:
                                           WRITS DENIED


                                 Writ of Mandamus and/or Procedendo
                                         Motion No. 444365
                                          Order No. 446666
                                          2
RELEASE DATE:         September 2, 2011
FOR RELATOR

Jose Agosto, Pro Se
Mansfield Correctional Institution
Inmate No. 493-626
Post Office Box 788
Mansfield, Ohio 44901




ATTORNEYS FOR RESPONDENTS

William D. Mason
Cuyahoga County Prosecutor
By: James E. Moss
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113

MARY J.     BOYLE, J.:

       {¶ 1} Relator, Jose Agosto, Jr., 1 is the defendant in State v. Agosto,

Cuyahoga County Court of Common Pleas Case No. CR-455886, which has

been assigned to respondent judge. 2 The grand jury issued a three-count

indictment. The state nolled one count, and the jury found him guilty of the

       1
         The caption of relator’s complaint stated his name as “Jose Agusto, Jr.” By
separate order, this court instructed the clerk to correct the caption to reflect the
proper spelling of relator’s last name as “Agosto.”
       2
        Agosto has also named the “Cuyahoga County Court of Common Pleas” as a
respondent.
                                       3
two remaining counts, murder and felonious assault. The court of common

pleas issued a sentencing entry on November 3, 2005. This court affirmed

Agosto’s conviction in State v. Agosto, Cuyahoga App. No. 87283,

2006-Ohio-5011, and the Supreme Court of Ohio dismissed Agosto’s appeal as

not involving any substantial constitutional question. State v. Agosto, 114

Ohio St.3d 1414, 2007-Ohio-2632, 867 N.E.2d 846.

      {¶ 2} In this action, Agosto contends that the November 3, 2005

sentencing entry is void because: (1) it does not contain a disposition of count

1; (2) the trial court improperly imposed sentence on allied offenses of similar

import; and (3) the trial court improperly imposed postrelease control. He

requests that this court issue a writ of mandamus and/or procedendo

“compelling the Respondents’ [sic] to cause the Relator to be physically

brought back before the Cuyahoga County Court of Common Pleas to be

sentenced to a lawful sentence and cause to be rendered and filed as a valid

final judgment in the Relator’s case sub judice.” Complaint, Ad Damnum

Clause (capitalization in original).

      {¶ 3} The requirements 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.           Mandamus may compel a court to
                                        4
exercise judgment or discharge a function, but it may not control judicial

discretion, even if that discretion is grossly abused. Additionally, mandamus

is not a substitute for appeal and does not lie to correct errors and procedural

irregularities in the course of a case. If the relator has or had an adequate

remedy, relief in mandamus is precluded — regardless of whether the relator

used the remedy. State ex rel. Smith v. Fuerst, Cuyahoga App. No. 86118,

2005-Ohio-3829, at ¶4.

       {¶ 4} The criteria for relief in procedendo are also well established.   The

relator must demonstrate: (1) a clear legal right to proceed in the underlying

matter; and (2) the lack of an adequate remedy in the ordinary course of the

law.    See, e.g., State ex rel. Charvat v. Frye, 114 Ohio St.3d 76,

2007-Ohio-2882, 868 N.E.2d 270, at ¶13.

       {¶ 5} Initially, we note that Agosto previously sought — and this court

denied — relief in mandamus and procedendo regarding the same November

3, 2005 sentencing entry. He requested “that this court compel respondents

to ‘cause to be rendered and filed a valid final judgment in the Relator’s

above-cited criminal case.’ Complaint, ad damnum clause.”            State ex rel.

Agosto v. Cuyahoga Cty. Court of Common Pleas, Cuyahoga App. No. 90631,

2007-Ohio-6806, ¶1, affirmed State ex rel. Agosto v. Cuyahoga Cty. Court of

Common Pleas, 119 Ohio St.3d 366, 2008-Ohio-4607, 894 N.E.2d 314 (“Case
                                       5
No. 90631”). In Case No. 90631, Agosto complained that the sentencing

entry was “defective because it does not mention his plea and ‘the entry does

not set forth the Relator’s verdicts; it sets forth a description of the Relator’s

verdicts * * *.’   Relator's Brief in Opposition to Respondents’       Motion to

Dismiss, at 2. Emphasis in original.” Case No. 90631, 2007-Ohio-6806, ¶2.

      {¶ 6} Although, in Case No. 90631, Agosto asserted a different basis for

holding that the November 3, 2005 sentencing entry was defective, he

requested the same relief as he requests in this action. That is, he wants this

court to compel respondents to issue a final appealable order. Not only did

this court reject his request for relief in mandamus and/or procedendo, the

Supreme Court affirmed and held: “Thus, based on [State v. Baker, 119 Ohio

St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163], neither the common pleas court

nor the judge either refused to render or unduly delayed rendering a judgment

in the criminal case, and Agosto is thus not entitled to the requested

extraordinary relief in mandamus and procedendo.” 2008-Ohio-4607, ¶10.

Additionally, the Supreme Court held that Agosto had an adequate remedy by

way of appeal. “In fact, Agosto has already exercised his right to appeal the

judgment in the criminal case, albeit unsuccessfully, and he could have raised

his present claims in that appeal.” Id., ¶12 (citation deleted).
                                      6
      {¶ 7} In light of the Supreme Court’s prior determination in Agosto’s

appeal of this court’s decision in Case No. 90631, we must hold that res

judicata bars this action.

      {¶ 8} Agosto also erroneously argues that the absence of the state’s nolle

from the sentencing entry is a defect. The trial court is not required to state

the means of exoneration in the sentencing entry. See State v. Robinson,

Cuyahoga App. No. 90731, 2008-Ohio-5580, ¶18.           This ground does not

provide a basis for relief in mandamus or procedendo. See State ex rel. Davis

v. Cuyahoga Cty. Court of Common Pleas, 127 Ohio St.3d 29, 2010-Ohio-4728,

936 N.E.2d 41.

      {¶ 9} Agosto also contends that the trial court improperly imposed

sentence on allied offenses of similar import. “[A]llied offense claims and

sentencing issues are not jurisdictional. Thus, they are properly addressed

on appeal and not through an extraordinary writ.” State ex rel. Martin v.

Russo, Cuyahoga App. No. 96328, 2011-Ohio-3268, ¶8 (citations deleted). We

must, therefore, hold that Agosto’s contention that he was improperly

sentenced on allied offenses does not provide a basis for relief in mandamus

and/or procedendo.

      {¶ 10} Likewise, his argument that the sentencing entry is void because

the court of common pleas improperly imposed postrelease control is not well
                                     7
taken. The November 3, 2005 sentencing entry stated: “Post release control

is part of this prison sentence for the maximum time allowed for the above

felony(s) under R.C. 2967.28.” In State ex rel. Shepherd v. Astrab, Cuyahoga

App. No. 96511, 2011-Ohio-2938, the sentencing entry included comparable

language regarding “‘the maximum period allowed.’”          Id.   at ¶3.    In

Shepherd, we denied the request for relief in mandamus and/or procedendo

and held that the language of the sentencing entry provided sufficient notice

that postrelease control was part of the sentence. That is, the relator had an

adequate remedy by way of appeal. In this action, we must reach the same

conclusion and hold that Agosto had sufficient notice that postrelease control

was part of his sentence and had an adequate remedy by way of appeal to raise

any purported errors.

      {¶ 11} Accordingly, respondents’ motion for summary judgment 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).

      {¶ 12} Writs denied.




_______________________________
MARY J. BOYLE, JUDGE

MARY EILEEN KILBANE, A.J., and
MELODY J. STEWART, J., CONCUR
