[Cite as State ex rel. Kirklin v. Doherty, 2018-Ohio-1979.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                      PORTAGE COUNTY, OHIO


STATE OF OHIO ex rel.                                     :   PER CURIAM OPINION
DELMAR V. KIRKLIN,
                                                          :
                 Relator,
                                                          :   CASE NO. 2018-P-0008
        - vs -
                                                          :
BECKY L. DOHERTY, JUDGE OF
THE COURT OF COMMON PLEAS,                                :

                 Respondent.                              :


Original Action for Writ of Mandamus.

Judgment: Petition dismissed.


Delmar V. Kirklin, pro se, PID: A201-478, Marion Correctional Institution, P.O. Box 57,
940 Marion-Williamsport Road, Marion, OH 43302 (Relator).

Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Respondent).



PER CURIAM.


        {¶1}     Relator, Delmar V. Kirklin, seeks a writ of mandamus to compel

respondent, Judge Becky L. Doherty, to present sufficient evidence showing that the

Portage County Court of Common Pleas had jurisdiction to proceed against him in his

1988 criminal case. Respondent moves to dismiss relator’s petition for failure to state a

claim upon which relief can be granted. Dismissal is warranted.

        {¶2}     In April 1989, appellant was indicted of and pleaded guilty to one count of
aggravated murder and three accompanying specifications, including a firearm

specification, and one count of kidnapping.       Then Judge George Martin sentenced

relator to life with parole eligibility after twenty years on the aggravated murder count,

three-years on the firearm specification, and 5 to 25 years on the kidnapping count,

consecutive.

       {¶3}    In August 2017, after respondent became judge, appellant moved to arrest

judgment pursuant to R.C. 2947.02 contending a lack of subject matter jurisdiction. He

argued that his convictions are void because a complaint was not filed before the

indictment was issued.

       {¶4}    On September 6, 2017, respondent denied appellant’s motion to arrest

finding “no cause” to vacate.       Two weeks later, appellant moved to vacate that

judgment, asserting the same argument previously advanced.              This motion was

summarily denied. Neither ruling was appealed.

       {¶5}    Appellant instituted this mandamus action in January 2018. His sole claim

asserts the same argument he advanced in his 2017 motions. He requests a writ

compelling respondent to “show cause” as to how the common pleas court had

jurisdiction in the absence of a complaint.

       {¶6}    Although not expressly stated in his prayer for relief, appellant ultimately

seeks a determination that his sentencing judgment is void and he is entitled to be

released from prison.     As a general proposition, habeas corpus is the appropriate

proceeding for attacking a void criminal judgment or sentence. In re Fisher, 39 Ohio

St.2d 71, 74, 313 N.E.2d 851 (1974). In contrast, the purpose of a mandamus action is

to require a public official, including a judge, to recognize and enforce a party’s clear




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legal right:

       {¶7}    “A mandamus is a civil proceeding, extraordinary in nature since it can

only be maintained when there is no other adequate to enforce clear legal rights. State

ex rel. Brammer v. Hayes (1955), 164 Ohio St. 373. Mandamus is a writ issued to a

public officer to perform an act that the law enjoins as a duty resulting from his or her

office. R.C. 2731.01. For a writ of mandamus to issue, the relator must establish a

clear legal right to the relief prayed for; the respondent must have a clear legal duty to

perform the act; and the relator must have no plain and adequate remedy in the

ordinary course of the law. State ex rel. National Broadcasting Co., Inc. v. Cleveland

(1988), 38 Ohio St.3d 79, 80. A dereliction of duty must be established before the writ

will be issued. State ex rel. Spellmire v. Kauer (1962), 173 Ohio St. 279, 280.” State ex

rel. Widmer v. Mohney, 11th Dist. Geauga No. 2007-G-2776, 2008-Ohio-1028, ¶31.

       {¶8}    In his petition, relator cedes that, in moving to arrest the sentencing

judgment, he raised the identical argument he now raises.          He further cedes that

respondent issued a timely decision denying his motion to arrest.          To this extent,

respondent has fulfilled her legal duty. Relator has failed to cite any authority that

respondent has a legal duty to explain the basis of the 2017 rulings or why appeal of

those rulings do not constitute an adequate remedy in the ordinary course of law

precluding mandamus. Relator, therefore, fails to state a claim for a writ of mandamus.

       {¶9}    Finally, even if relator’s jurisdictional argument were properly before this

court, his sentence is not void. Relator was indicted on and convicted of two felony

offenses, aggravated murder with specifications and kidnapping. An indictment in the

absence of a complaint confers jurisdiction. State v. Luther, 11th Dist. Ashtabula No.




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2003-A-0130, 2005-Ohio-950, ¶13.

        {¶10} Construing the allegations in the complaint in a manner most favorable to

relator, he can prove no set of facts warranting relief. State ex rel. Crabtree v. Franklin

Cty. Bd. of Health, 77 Ohio St.3d 247, 673 N.E.2d 1281 (1997).

        {¶11} Respondent’s motion to dismiss is granted. Relator’s petition is dismissed

in its entirety.


THOMAS R. WRIGHT, P.J., DIANE V. GRENDELL, J., COLLEEN MARY O’TOOLE, J.,

concur.




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