[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Ridenour v. O’Connell, Slip Opinion No. 2016-Ohio-7368.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.


                          SLIP OPINION NO. 2016-OHIO-7368
THE STATE EX REL. RIDENOUR, APPELLANT, v. O’CONNELL, JUDGE, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
     may be cited as State ex rel. Ridenour v. O’Connell, Slip Opinion No.
                                     2016-Ohio-7368.]
Mandamus—Criminal sentencing—R.C. 2929.61(A)—Relator was not entitled to
        be sentenced for a lesser offense—Adequate remedy at law existed to
        challenge sentence—Denial of writ affirmed.
     (No. 2015-2059—Submitted July 12, 2016—Decided October 19, 2016.)
      APPEAL from the Court of Appeals for Montgomery County, No. 26592.
                                 _____________________
        Per Curiam.
        {¶ 1} We affirm the Second District Court of Appeals’ denial of a writ of
mandamus to appellant, William L. Ridenour. Ridenour alleges that on April 10,
1972, he pleaded guilty to two counts of second-degree murder, one count of
shooting with the intent to kill, and one count of assault with a deadly weapon. He
asserts that he was sentenced to two life terms of incarceration, one 1-to-20-year
                            SUPREME COURT OF OHIO




term, and two 2-to-5-year terms, all to run consecutively. He seeks a writ ordering
the trial judge in his criminal case to resentence him to concurrent sentences for
manslaughter, even though he pleaded guilty to second-degree murder. Ridenour
asserts that under R.C. 2929.61(A), none of his sentences should have been greater
than 1 to 20 years and that they should have been imposed to run concurrently rather
than consecutively.
       {¶ 2} Ridenour’s argument that he should have been sentenced as if he had
been convicted of manslaughter rather than murder misinterprets R.C. 2929.61(A),
which says:


       Persons charged with a capital offense committed prior to January
       1, 1974, shall be prosecuted under the law as it existed at the time
       the offense was committed, and, if convicted, shall be imprisoned
       for life, except that whenever the statute under which any such
       person is prosecuted provides for a lesser penalty under the
       circumstances of the particular case, such lesser penalty shall be
       imposed.


(Emphasis added.) This statute does not, as Ridenour argues, mean that he should
have been sentenced to the penalty for a lesser offense, such as manslaughter, but
rather that he should have been sentenced—as he apparently was—to a lesser
penalty for the offense that he committed, i.e., second-degree murder.
       {¶ 3} Moreover, as the court of appeals correctly noted, sentencing errors
are generally not remediable by extraordinary writ, because the defendant usually
has an adequate remedy at law available by way of direct appeal. See State ex rel.
Hudson v. Sutula, 131 Ohio St.3d 177, 2012-Ohio-554, 962 N.E.2d 798, ¶ 1, citing
Manns v. Gansheimer, 117 Ohio St.3d 251, 2008-Ohio-851, 883 N.E.2d 431, ¶ 6.
Here, Ridenour “ ‘has or had adequate remedies in the ordinary course of law, e.g.,




                                         2
                                January Term, 2016




appeal and postconviction relief, for review of any alleged sentencing error,’ ” State
ex rel. Hughley v. McMonagle, 123 Ohio St.3d 91, 2009-Ohio-4088, 914 N.E.2d
371, ¶ 1, quoting State ex rel. Jaffal v. Calabrese, 105 Ohio St.3d 440, 2005-Ohio-
2591, 828 N.E.2d 107, ¶ 5.
       {¶ 4} Ridenour filed in the trial court in his criminal case a motion to modify
his sentence, based on the same argument that he makes here, and Judge O’Connell
overruled the motion. Ridenour had access to an adequate remedy in the ordinary
course of law by way of appeal of that decision, regardless of whether he used that
remedy. If an adequate remedy was available but the party failed to take advantage
of it or is time-barred from using it, mandamus will not lie to substitute for that
remedy. State ex rel. Alhamarshah v. Indus. Comm., 142 Ohio St.3d 524, 2015-
Ohio-1357, 33 N.E.3d 43, ¶ 11; State ex rel. Zimmerman v. Tompkins, 75 Ohio
St.3d 447, 449, 663 N.E.2d 639 (1996), citing State ex rel. Johnson v. Cleveland
Hts./Univ. Hts. School Dist. Bd. of Edn., 73 Ohio St.3d 189, 192-193, 652 N.E.2d
750 (1995).
       {¶ 5} Accordingly, the court of appeals correctly denied Ridenour’s petition
for a writ of mandamus, and we affirm its judgment.
                                                                 Judgment affirmed.
       O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
                               _________________
       William J. Ridenour, pro se
       Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and Mary
E. Montgomery, Assistant Prosecuting Attorney for appellee.
                               _________________




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