[Cite as State ex rel. Pryor v. Martin, 2011-Ohio-1224.]


                                     IN THE COURT OF APPEALS
                                     FIFTH APPELLATE DISTRICT
                                      FAIRFIELD COUNTY, OHIO


STATE OF OHIO, ex rel.,                             :      JUDGES:
Anthony C. Pryor,                                   :
                                                    :
        Relator                                     :      Hon. Sheila G. Farmer, P.J.
                                                    :      Hon. John W. Wise, J.
-vs-                                                :      Hon. Patricia A. Delaney, J.
                                                    :
CHRIS A. MARTIN, JUDGE, et al.,                     :      CASE NO. 10-CA-56
                                                    :
        Respondent                                  :      OPINION


CHARACTER OF PROCEEDING:                                   Petition for Writ of Mandamus


JUDGMENT:                                                  WRIT DENIED


DATE OF JUDGMENT ENTRY:                                    March 9, 2011




APPEARANCES:

For Petitioner – Pro se:                                   For Respondent:

ANTHONY C. PRYOR - #437-185                                Judge Chris A. Martin
Ross Correctional Institution                              Fairfield County Common Pleas Court
16149 State Route 104, North                               224 East Main Street
P.O. Box 7010                                              Lancaster, Ohio 43130
Chillicothe, Ohio 45601
Fairfield County, Case No. 10-CA-56

Patricia A. Delaney, J.,

       {¶1 } Relator, Anthony Pryor, has filed a Petition for Writ of Mandamus arguing

he should have his sentence vacated and be released from prison because the trial

court failed to complete sentencing for over six years.

       {¶2 } Relator was convicted in the Fairfield County Court of Common Pleas of

two counts of rape, four counts of complicity to commit rape, one count of kidnapping,

and one count of abduction.        After merging several of the counts, Relator was

sentenced to an aggregate term of three life sentences.         Following his conviction,

Relator appealed to this Court in Fairfield Case Number 02CA91 wherein this Court

affirmed his conviction but reversed and remanded the case to the trial court for the

purpose of resentencing to impose post release control sanctions. Our opinion was

issued in Case Number 02CA91 on February 2, 2004. The Mandamus Complaint in

this case was filed November 10, 2010. The trial court imposed post release control

upon Relator by an entry dated February 2, 2011.

       {¶3 }   To the extent the complaint could be construed as a request for

immediate release from prison, habeas corpus, rather than mandamus, is the proper

action. State ex rel. Johnson v. Ohio Parole Bd. (1997), 80 Ohio St.3d 140, 684 N.E.2d

1227 and State ex rel. Sampson v. Parrott (1998), 82 Ohio St.3d 92, 93, 694 N.E.2d

463, 463.

       {¶4 } As the Suprme Court recently explained,

       {¶5 } “The requisites 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
Fairfield County, Case No. 10-CA-56

legal duty to perform the requested relief, and (3) there must be no adequate remedy at

law. Additionally, although mandamus may be used to compel a court to exercise

judgment or to discharge a function, it may not control judicial discretion, even if that

discretion is grossly abused. State ex rel. Ney v. Niehaus (1987), 33 Ohio St.3d 118,

515 N.E.2d 914. Furthermore, mandamus is not a substitute for appeal. State ex rel.

Keenan v. Calabrese (1994), 69 Ohio St.3d 176, 631 N.E.2d 119; State ex rel. Daggett

v. Gessaman (1973), 34 Ohio St.2d 55, 295 N.E.2d 659; and State ex rel. Pressley v.

Indus. Comm. of Ohio (1967), 11 Ohio St.2d 141, 228 N.E.2d 631, paragraph three of

the syllabus. Thus, mandamus does not lie to correct errors and procedural irregularities

in the course of a case. State ex rel. Jerninghan v.. Gaughan (Sept. 26, 1994),

Cuyahoga App. No. 67787. Furthermore, if the relator had an adequate remedy,

regardless of whether it was used, relief in mandamus is precluded. State ex rel. Tran v.

McGrath, 78 Ohio St.3d 45, 1997-Ohio-245, 676 N.E.2d 108, and State ex rel.

Boardwalk Shopping Ctr., Inc. v. Court of Appeals for Cuyahoga Cty. (1990), 56 Ohio

St.3d 33, 564 N.E.2d 86.” State, ex rel. Henderson v. Gallagher 2010 WL 2332701, 1

(Ohio App. 8 Dist.).

       {¶6 } Relator argues the trial court lacks jurisdiction to sentence Relator

following a delay of more than six years. The Ninth District Court of Appeals recently

addressed this argument,

       {¶7 } “In this case, the trial court timely attempted to enter a legal sentence but

failed to mention the imposition of post-release control. Further, the Supreme Court of

Ohio observed in State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 856 N.E.2d 263,
Fairfield County, Case No. 10-CA-56

2006-Ohio-5795, that a trial court retains continuing jurisdiction to correct a void

sentence. Id. at ¶ 19, 856 N.E.2d 263, citing State v. Garretson (2000), 140 Ohio

App.3d 554, 559, 748 N.E.2d 560, citing State v. Beasley (1984), 14 Ohio St.3d 74, 75,

471 N.E.2d 774. Accordingly, the trial court had jurisdiction to resentence Brown.”

State v. Brown 2010 WL 3894990, 3 (Ohio App. 9 Dist.).

       {¶8 } Like Brown the trial court did impose a correct sentence except for the

omission of post release control. We agree with the Brown Court that the trial court

retains jurisdiction to correct an otherwise valid sentence.

       {¶9 } At this juncture, the trial court has fulfilled its duty in compliance with our

remand. Further, Relator has an adequate remedy at law to challenge any sentencing

error which may have been committed. We note this issue was raised in Brown by way

of direct appeal.

       {¶10 } For these reasons, we find Relator has failed to demonstrate the requisite

elements to justify the issuance of a writ of mandamus and deny the requested writ.

       {¶11 } PETITION FOR WRIT DENIED.

       {¶12 } COSTS TO PETITIONER.


By: Delaney, .J.
    Farmer, P.J. and
    Wise, J. concur

                                                 __________________________
                                                 HON. PATRICIA A. DELANEY

                                                 __________________________
                                                 HON. SHEILA G. FARMER

                                                 __________________________
                                                 HON. JOHN W. WISE
                            IN THE COURT OF APPEALS
                            FIFTH APPELLATE DISTRICT
                             FAIRFIELD COUNTY, OHIO


STATE OF OHIO, ex rel.,                 :
Anthony C. Pryor,                       :     CASE NO. 10-CA-56
                                        :
       Relator                          :
                                        :
-vs-                                    :     JUDGMENT ENTRY
                                        :
CHRIS A. MARTIN, JUDGE, et al.,         :
                                        :
       Respondent                       :


       For the reasons stated in the Memorandum-Opinion on file, Relator’s

Petition for Writ of Mandamus is hereby denied. Costs taxes to Relator.




                                              __________________________
                                              HON. PATRICIA A. DELANEY


                                              __________________________
                                              HON. SHEILA G. FARMER


                                              __________________________
                                              HON. JOHN W. WISE
