[Cite as State ex rel. Gonzalez v. Astrab, 2012-Ohio-3582.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 97922



                   STATE EX REL. EDGAR GONZALEZ
                                                              RELATOR

                                                       vs.

                    JUDGE MICHAEL ASTRAB, ET AL.
                                                              RESPONDENTS




                                     JUDGMENT:
                                 COMPLAINT DISMISSED


                                  Writ of Mandamus and Procedendo
                                          Motion No. 452465
                                          Order No. 456884

            RELEASE DATE:                 August 9, 2012
RELATOR

Edgar Gonzalez
No. 593-445
Lorain Correctional Institution
2075 South Avon Belden Road
Grafton, Ohio 44044


ATTORNEYS FOR RESPONDENTS

William D. Mason, Esq.
Cuyahoga County Prosecutor
By: James E. Moss, Esq.
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:

      {¶1} Relator, Edgar Gonzalez, is the defendant in State v. Gonzalez, Cuyahoga

C.P. No. CR-504595, which has been assigned to respondent judge, a member of

respondent court.   Gonzalez complains that the court of common pleas imposed sentence

without properly addressing the issue of allied offenses of similar import under R.C.

2941.25. Gonzalez argues that his sentence is void and requests this court to issue a writ

of mandamus and/or procedendo to compel respondents to have him returned to

Cuyahoga County “to be sentenced to a lawful sentence * * *.”    Complaint, ¶ 11.

      {¶2} Respondents have filed a motion to dismiss and argue that relief in

mandamus and/or procedendo is not appropriate.     We agree.

      {¶3} In State ex rel. Agosto v. Gallagher, 8th Dist. No. 97760, 2011-Ohio-4514,

aff’d, 131 Ohio St.3d 176, 2012-Ohio-563, 962 N.E.2d 796, the relator complained that

his sentence was void because the court of common pleas improperly sentenced him to

allied offenses. Agosto requested relief in mandamus and/or procedendo to compel the

respondents — the court of common pleas and a judge of that court — to bring him back

to that court to receive a “lawful sentence.” Id. at ¶ 2.   We denied Agosto’s claim for

relief and the Supreme Court affirmed observing:

             Moreover, Agosto’s allied-offense claims are nonjurisdictional and
      are not cognizable in an extraordinary-writ action. See Smith v. Voorhies,
      119 Ohio St.3d 345, 2008-Ohio-4479, 894 N.E.2d 44, ¶ 10 (habeas corpus).
          Agosto had an adequate remedy in the ordinary course of law to raise his
         claims in an appeal from his sentencing entry.

Id. at ¶ 3.

         {¶4} The Supreme Court has stated clearly that original actions do not provide a

remedy for allied-offense claims.       As a consequence, we must hold that Gonzalez’s

complaint fails to state a claim upon which relief can be granted.

         {¶5} Accordingly, respondents’ motion to dismiss is granted. Relator to pay

costs.    The court directs the clerk of court to serve all parties notice of this judgment and

its date of entry upon the journal as required by Civ.R. 58(B).

         {¶6} Complaint dismissed.




KATHLEEN ANN KEOUGH, JUDGE

MARY J. BOYLE, P.J., and
MARY EILEEN KILBANE, J., CONCUR
