[Cite as State ex rel. Perdue v. Deweese, 2012-Ohio-2858.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO, EX. REL                                       JUDGES:
IVORY PERDUE                                                 Hon. W. Scott Gwin, P.J.
                                                             Hon. William B. Hoffman, J.
        Relator                                              Hon. Julie A. Edwards, J.

-vs-                                                         Case No. 12CA19

JUDGE JAMES DEWEESE, ET AL.
                                                             OPINION
        Respondent




CHARACTER OF PROCEEDING:                                Writs of Mandamus and Procedendo


JUDGMENT:                                               Dismissed


DATE OF JUDGMENT ENTRY:                                 June 21, 2012


APPEARANCES:


For Relator                                             For Respondent


IVORY PERDUE                                            JILL M. COCHRAN
P.O. Box 788 (463-864)                                  Assistant Richland County Prosecutor
Mansfield, Ohio 44901-0788                              38 South Park Street, 2nd Floor
                                                        Mansfield, Ohio 44902
Richland County, Case No. 12CA19                                                           2

Hoffman, J.


       {¶1}   Relator, Ivory Perdue, has filed a Complaint for Mandamus and/or

Procedendo requesting this Court order Respondent DeWeese to resentence Relator.

The basis of Relator’s claim is that he believes his sentence is void because the trial

court did not issue a determination as to whether the Relator’s convictions were allied

offenses of similar import.

       {¶2}   Relator filed a motion with the trial court raising this issue. The trial court

denied the motion on the basis of res judicata. Relator did not file a notice of appeal.

Rather, he filed the instant cause of action.

       {¶3}   The exact issue raised herein was recently addressed by the Supreme

Court in State ex rel. Hudson v. Sutula 131 Ohio St.3d 177, 177, 962 N.E.2d 798,

798 (Ohio,2012). In Hudson, the Relator sought writs of mandamus and procedendo to

compel the trial court to resentence him to “account for his allied offenses.” Id. The

Court held, “Neither mandamus nor procedendo will issue if the party seeking

extraordinary relief has an adequate remedy in the ordinary course of law. State ex rel.

Jelinek v. Schneider, 127 Ohio St.3d 332, 2010-Ohio-5986, 939 N.E.2d 847, ¶ 13.

Hudson had an adequate remedy by way of appeal to raise the claimed sentencing

error. See generally Manns v. Gansheimer, 117 Ohio St.3d 251, 2008-Ohio-851, 883

N.E.2d 431, ¶ 6 (“sentencing errors are not jurisdictional and are not remediable * * * by

extraordinary writ”); compare **799 Smith v. Voorhies, 119 Ohio St.3d 345, 2008-Ohio-

4479, 894 N.E.2d 44, ¶ 10 (“allied-offense claims are nonjurisdictional and are not

cognizable in habeas corpus”).” Id.
Richland County, Case No. 12CA19                                                   3


      {¶4}   Because Relator has or had an adequate remedy at law, neither

mandamus nor procedendo lie. For this reason, the instant complaint is dismissed for

failure to state a claim upon which relief may be granted.

By: Hoffman, J.

Gwin, P.J. and

Edwards, J. concur

                                             s/ William B. Hoffman _________________
                                             HON. WILLIAM B. HOFFMAN


                                             s/ W. Scott Gwin _____________________
                                             HON. W. SCOTT GWIN


                                             s/ Julie A. Edwards ___________________
                                             HON. JULIE A. EDWARDS
Richland County, Case No. 12CA19                                                 4


           IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


STATE OF OHIO, EX. REL                   :
IVORY PERDUE                             :
     Relator                             :
                                         :
-vs-                                     :         JUDGMENT ENTRY
                                         :
JUDGE JAMES DEWEESE, ET AL.              :
                                         :
       Respondent                        :         Case No. 12CA19


       For the reasons stated in our accompanying Opinion, the instant complaint is

dismissed. Costs to Relator.




                                         s/ William B. Hoffman _________________
                                         HON. WILLIAM B. HOFFMAN


                                         s/ W. Scott Gwin _____________________
                                         HON. W. SCOTT GWIN


                                         s/ Julie A. Edwards___________________
                                         HON. JULIE A. EDWARDS
