[Cite as State ex rel. Kirkpatrick v. Rice, 2013-Ohio-3978.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                      TRUMBULL COUNTY, OHIO


THE STATE OF OHIO ON THE          :                            PER CURIAM OPINION
RELATION OF JASON W. KIRKPATRICK,
                                  :

                 Relator,                                  :   CASE NO. 2013-T-0004

        - vs -                                             :

RONALD J. RICE, JUDGE,                                     :
TRUMBULL COUNTY
COURT OF COMMON PLEAS,                                     :

                 Respondent.                               :


Original Action for Writ of Mandamus.

Judgment: Petition dismissed.


Jason W. Kirkpatrick, pro se, PID: A562137, Marion Correctional Institution, P.O. Box
57, Marion, OH 43302 (Relator).

Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481-1092 (For Respondent).


PER CURIAM.

        {¶1}     This matter is before this court on the January 10, 2013 petition for a writ

of mandamus filed by relator, Jason W. Kirkpatrick. Relator asked this court to compel

Judge John M. Stuard to resentence him in Case No. 2007 CR 00905 to “valid

community control sanctions.”
       {¶2}   On January 14, 2013, this court issued an alternative writ and ordered

Judge Stuard to respond with either an answer, a motion to dismiss pursuant to Civ.R.

12(B), or a Civ.R. 56 motion for summary judgment. In accordance with this court’s

order, the state filed a motion to dismiss on January 31, 2013.          Relator filed a

memorandum contra on February 21, 2013.

       {¶3}   Thereafter, on March 18, 2013, relator filed a motion to substitute Judge

Stuard in this matter. Since relator’s conviction, Judge Stuard retired from the bench on

December 31, 2012, and passed away on February 7, 2013. Thus, this court granted

relator’s motion to substitute on April 5, 2013, and rendered moot the state’s January

31, 2013 motion to dismiss on April 8, 2013. We note that after his retirement, Judge

Stuard was replaced by another judge, the Honorable Ronald J. Rice, who is now a

proper party to this action.

       {¶4}   A review of relator’s mandamus petition shows that his claim for relief is

predicated upon the following factual background:

       {¶5}   On December 26, 2007, relator was secretly indicted by a grand jury on 34

counts; 19 counts of breaking and entering, fifth degree felonies in violation of R.C.

2911.13(A) and (C); nine counts of grand theft, fourth degree felonies in violation of

R.C. 2913.02(A)(1) and (B)(1)(2); five counts of vandalism, fifth degree felonies in

violation of R.C. 2909.05(B)(1)(b) and (E); and one count of engaging in a pattern of

corrupt activity, a second degree felony in violation of R.C. 2923.32(A)(1) and (B)(1).

The indictment alleged that relator had broken into 19 separate Trumbull County

businesses over a five-month span, from September 14, 2006 to January 26, 2007.




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        {¶6}   Relator, who was represented by counsel, reached a plea agreement with

the state, which the court accepted, pleading guilty to 16 of the 19 counts of breaking

and entering, and the one count of engaging in a pattern of corrupt activity. The state

entered and the court accepted a nolle prosequi on the remaining counts and the matter

was referred for a presentence investigation (“PSI”).

        {¶7}   The first sentencing hearing was held on September 18, 2008. The court

reviewed the factors of R.C. 2929.11 and 2929.12, the report that the PSI “did not go

well,” and that relator had an extensive prison record, having already served a total of

nine years for three separate felonies in the past.      The state urged the maximum

sentence be imposed. Relator’s pastor, who was also in charge of Life Challenge,

spoke on relator’s behalf. Although the court was initially inclined to sentence relator to

a two-year term of imprisonment, the court gave him the option to choose the two-year

term of imprisonment, or five years of community control sanctions, which included

successful completion of the 12-month Life Challenge program. Relator agreed that in

the case of revocation he would serve nine years in prison.

        {¶8}   Relator was discharged from the program on October 18, 2008. As such,

he was arrested and a resentencing/probation violation hearing was held on January 8,

2009.    Following that hearing, the state urged the court to sentence relator to the

original nine-year term of imprisonment the court and relator had agreed to if he violated

his sentence of community control. The state asserted that although relator testified

that he chose to leave Life Challenge because it was not what was initially explained to

him, he was, in fact, terminated from the program for attempting to construct an electric

shotgun and not getting along with others.




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       {¶9}   The court then reviewed the original sentencing hearing, reiterating that

relator was offered a two-year term of imprisonment or the five-year term of community

control sanctions, which included the successful completion of the Life Challenge

program, and that he would be sentenced to a nine-year term of imprisonment if he did

not.   Because relator failed to do as he agreed, the court imposed the nine-year

sentence. Relator filed a timely appeal. State v. Kirkpatrick, 11th Dist. Trumbull No.

2009-T-0007, 2009-Ohio-6519. On December 11, 2009, this court vacated relator’s

sentence and remanded the matter to the trial court because relator was sentenced

outside the range of imprisonment for a second degree felony.

       {¶10} In accordance with this court’s remand, the trial court held a third

sentencing hearing on January 28, 2010, in which relator was sentenced anew. The

court heard testimony from relator and arguments of his attorney detailing potentially

mitigating factors of relator’s bipolar disorder and the fact that he engaged in nonviolent

crimes. Relator further argued that he did not construct an electric shot gun, a fact that

was noted in the record as the reason why he was expelled from Life Challenge, but

rather a simple hand buzzer.

       {¶11} The trial court reminded relator of his original agreement to a nine-year

sentence if he failed to complete the program and noted that he has been in prison

three times in the past. The court then sentenced relator to an eight-year term of

imprisonment on the count of engaging in a pattern of corrupt activity, to be served

consecutively to one-year concurrent terms for each of the remaining counts of breaking

and entering, for a total term of imprisonment of nine years. Relator filed a second

appeal with this court. State v. Kirkpatrick, 11th Dist. Trumbull No. 2010-T-0025, 2010-




                                            4
Ohio-6578. At no point in the second appeal did relator challenge his original sentence,

which this court had vacated. After finding that relator had been properly sentenced,

this court affirmed the judgment of the trial court on December 30, 2010.

       {¶12} Thereafter, relator filed with this court a pro se application to reopen his

direct appeal based on the purported error that his appellate counsel failed to challenge

what he construed as a “void” sentence. This court denied relator’s application for

reopening on June 6, 2011. On October 17, 2011, relator then filed with the trial court a

pro se motion to vacate void judgment and hold a new violation and/or sentencing

hearing. The trial court denied that motion on February 7, 2012. However, relator did

not appeal that denial. Rather, relator filed the instant petition for a writ of mandamus

on January 10, 2013, requesting that Judge Rice, who replaced Judge Stuard,

resentence him to “valid community control sanctions.”

       {¶13} R.C. 2731.01 states: “Mandamus is a writ, issued in the name of the state

to an inferior tribunal, a corporation, board, or person, commanding the performance of

an act which the law specially enjoins as a duty resulting from an office, trust, or

station.”

       {¶14} “To be entitled to a writ of mandamus, the relator must be able to prove

that: (1) he has a clear legal right to have a specific act performed by a public official;

(2) the public official has a corresponding duty to perform that act; and (3) there is no

other legal remedy that could be pursued to adequately resolve the matter.” State ex

rel. Sanders v. Enlow, 11th Dist. Portage No. 2010-P-0022, 2010-Ohio-5053, ¶14, citing

State ex rel. Appenzeller v. Mitrovich, 11th Dist. Lake No. 2007-L-125, 2007-Ohio-6157,

¶5.




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       {¶15} “Dismissal of an original action is ‘appropriate if after presuming the truth

of all material factual allegations of (relators’) petition and making all reasonable

inferences in their favor, it appear(s) beyond doubt that they could prove no set of facts

entitling them to the requested extraordinary relief (* * *).’      State ex rel. Scott v.

Cleveland, 112 Ohio St.3d 324, 2006-Ohio-6573 at ¶14 * * * (citation omitted). ‘Sua

sponte dismissal without notice is warranted when a complaint is frivolous or the

claimant obviously cannot prevail on the facts alleged in the complaint.’ Id. (citation

omitted); State ex rel. Kreps v. Christiansen (2000), 88 Ohio St.3d 313, 316 * * *

(citations omitted).” State ex rel. Cioffi v. Stuard, 11th Dist. No. 2011-T-0083, 2011-

Ohio-5707, ¶18. (Parallel citations omitted.)

       {¶16} Upon consideration, this court concludes that even when the factual

allegations in relator’s petition are construed in a manner most favorable to him, he is

unable to establish a set of facts under which he could satisfy any of the three elements

for the writ. Thus, not only are his allegations legally insufficient to demonstrate that he

has a “right” to another sentencing hearing, but they also readily show that he had an

adequate legal remedy at law, which he failed to exercise in this instance.

       {¶17} As stated, the trial court denied relator’s motion to vacate void judgment

and hold a new violation and/or sentencing hearing on February 7, 2012. However,

relator failed to appeal that judgment. Instead, he raised the same issues in that motion

that are presented to this court in the instant petition. We note that “it is not permissible

for a defendant to employ a mandamus case as a substitute for an appeal when he has

essentially ignored the appellate process.” State ex rel. Becar v. Culotta, 11th Dist.

Lake No. 2010-L-106, 2010-Ohio-6575, ¶13. Although this court has already dealt with




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the “void sentence” argument in State v. Kirkpatrick, 11th Dist. Trumbull No. 2010-T-

0025, 2010-Ohio-6578, and it appears as if there is no substantive difference in this

resentencing in this matter, relator cannot find his remedy in this writ.

       {¶18} Accordingly, it is the order of this court that relator’s mandamus petition is

hereby dismissed.


TIMOTHY P. CANNON, P.J., DIANE V. GRENDELL, J., COLLEEN MARY O’TOOLE,
J., concur.




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