[Cite as State ex rel. Olmstead v. Forsthoefel, 2020-Ohio-1638.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE EX REL.                                       :              JUDGES:
BRANDON OLMSTEAD                                    :
                                                    :
        Relator                                     :              Hon., W. Scott Gwin, PJ.
                                                    :              Hon., Patricia A. Delaney, J.
                                                    :              Hon., William B. Hoffman., J.
-vs-                                                :
                                                    :
JUDGE RONALD P. FORSTHOEFEL                         :              Case No. 20-COA-007
                                                    :
        Respondent                                  :              OPINION



CHARACTER OF PROCEEDING:                                           Writ of Mandamus


JUDGMENT:                                                          Dismissed


DATE OF JUDGMENT:                                                  April 22, 2020



APPEARANCES:

For Petitioner:                                                    For Respondent:

Brandon Olmstead, #A704239                                         Christopher R. Tunnell
Northeast Ohio Correctional Center                                 Ashland County Prosecutor
2240 Hubbard Rd.                                                   Michael Donatini
Youngstown, Ohio 44505                                             Assistant Prosecuting Attorney
                                                                   110 Cottage Street, Third Floor
                                                                   Ashland, Ohio 44805
Ashland County, Case No. 20-COA-007                                                        2



Delaney, J.

       {¶1}   On January 21, 2020, Brandon Olmstead filed a Petition for Writ of

Mandamus requesting that the Court order Judge Ronald P. Forsthoefel “to vacate its

judgment, sentence relator de novo, merging counts 4 & 5 as allied offense (sic) of similar

import * * *” [Petition, ¶ 11] Mr. Olmstead contends he has a clear legal right to have count

four (complicity to possession of methamphetamine) and count five (complicity to

trafficking in drugs) merged as allied offenses of similar import under R.C. 2941.25(A).

       {¶2}   For a writ of mandamus to issue, the relator must have a clear right to the

relief prayed for, the respondent must be under a clear legal duty to perform the requested

act, and relator must have no plain and adequate remedy in the ordinary course of law.

(Citation omitted.) State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28, 29, 451 N.E.2d

225 (1983). The Ashland County Prosecutor, on behalf of Judge Forsthoefel, has moved

to dismiss Mr. Olmstead’s writ under Civ.R. 12(B)(6) or in the alternative, requests the

Court convert its motion to a motion for summary judgment under Civ.R. 56.

       {¶3}   The Court will address the prosecutor’s motion under Civ.R. 12(B)(6). A

court is permitted to dismiss a mandamus action under Civ.R. 12(B)(6) for failure to state

a claim upon which relief can be granted “if, after all factual allegations of the complaint

are presumed true and all reasonable inferences are made in the relator’s favor, it

appears beyond doubt that he can prove no set of facts entitling him to the requested writ

of mandamus.” State ex rel. Russell v. Thornton, 111 Ohio St.3d 409, 2006-Ohio-5858,

856 N.E.2d 966, ¶ 9.

       {¶4}   In support of his writ, Mr. Olmstead relies on the case of State v. Cabrales,

118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181. The Cabrales case discusses how
Ashland County, Case No. 20-COA-007                                                        3


to determine whether offenses are allied offenses of similar import under R.C. 2941.25(A).

However, as we explained in State v. Deresse, 5th Dist. Licking No. 14-CA-31, 2014-

Ohio-4234, ¶ 13, the Ohio Supreme Court overruled Cabrales in State v. Johnson, 128

Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. Therefore, Mr. Olmstead is not

entitled to the requested mandamus relief under the Cabrales decision.

       {¶5}    Further, Mr. Olmstead had an adequate remedy at law by way of an appeal

in this matter and therefore, he is not entitled to mandamus relief. See State ex rel. Cowell

v. Croce, 157 Ohio St.3d 103, 2019-Ohio-2844, 131 N.E.3d 934, ¶ 5, citing State ex rel.

Ridenour v. O’Connell, 147 Ohio St.3d 351, 2016-Ohio-7368, 65 N.E.3d 742, ¶ 3. “As a

general matter, sentencing errors may not be remedied through an extraordinary writ,

because the defendant usually has or had ‘an adequate remedy at law available by way

of direct appeal.’ ”

       {¶6}    In State of Ohio ex rel. Perdue v. DeWeese, 5th Dist. Richland No. 12CA19,

2012-Ohio-2858, this Court addressed a factually similar matter as presented here. In

Perdue, relator sought a writ of mandamus and/or procedendo on the basis that his

sentence was void because the trial court did not determine whether his convictions were

allied offenses of similar import. Id. at ¶ 1. The Perdue Court referenced a decision from

the Ohio Supreme Court, State ex rel. Hudson v. Sutula, 131 Ohio St.3d 177, 2012-Ohio-

554, 962 N.E.2d 798, wherein 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.” Id. at ¶ 1. The Supreme Court concluded that Hudson had an

adequate remedy at law, by way of an appeal, to raise the alleged sentencing error. Id.
Ashland County, Case No. 20-COA-007                                                         4


Based on the Hudson holding, we dismissed relator’s original action in Perdue because

relator has or had an adequate remedy at law. Perdue at ¶ 4.

       {¶7}   Mr. Olmstead’s allied-offense claim falls within this general rule. He had an

adequate remedy at law available to him to raise the allied-offenses-of-import issue in his

direct appeal that he now seeks to pursue by way of mandamus relief. In fact, Mr.

Olmstead knew he could raise this challenge on direct appeal because he did so arguing

his criminal tools conviction should have merged with his trafficking or possession

convictions. See State v. Olmstead, 5th Dist. Ashland No. 18-COA-016, 2018-Ohio-5301,

¶ 26. The Court ultimately rejected this argument in his direct appeal. Id. at ¶ 29. Because

Mr. Olmstead had an adequate remedy at law in his direct appeal, he is not entitled to the

requested mandamus relief.

       {¶8}   For these reasons, Mr. Olmstead cannot state a claim upon which relief can

be granted and the prosecutor’s Motion to Dismiss Pursuant to Civ.R. 12(B)(6) is granted.

The clerk of courts is hereby directed to serve upon all parties not in default notice of this

judgment and its date of entry upon the journal. See Civ.R. 58(B).
Ashland County, Case No. 20-COA-007   5


      MOTION GRANTED.

      CAUSE DISMISSED.

      COSTS TO RELATOR.

      IT IS SO ORDERED.




By, Delaney, J.

Gwin, W. Scott, P.J. and

Hoffman, William, J. concur.
[Cite as State ex rel. Olmstead v. Forsthoefel, 2020-Ohio-1638.]


                   IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE EX REL.                                           :
BRANDON OLMSTEAD                                        :
                                                        :          JUDGMENT ENTRY
        Relator                                         :
                                                        :
-vs-                                                    :
                                                        :
JUDGE RONALD P. FORSTHOEFEL                             :          CASE NO. 20-COA-007
                                                        :
        Respondent                                      :


        For the reasons stated in our accompanying Memorandum-Opinion, Relator’s

Petition for Writ of Mandamus is dismissed. Costs to Relator.




                                                        _______________________________
                                                        Hon. Patricia A. Delaney



                                                        _______________________________
                                                        Hon. W. Scott Gwin



                                                        _______________________________
                                                        Hon. William B. Hoffman
