Summary
holding that defendant's claims of sentencing error via writ of mandamus, including allied-offense claim, barred by res judicata
Summary of this case from State v. MillerOpinion
No. 2011–1223.
2011-11-1
The STATE ex rel. MARTIN, Appellant, v. RUSSO, Judge, Appellee.
Tramaine Martin, pro se. William D. Mason, Cuyahoga County Prosecuting Attorney, and James E. Moss, Assistant Prosecuting Attorney, for appellee.
Tramaine Martin, pro se. William D. Mason, Cuyahoga County Prosecuting Attorney, and James E. Moss, Assistant Prosecuting Attorney, for appellee.
PER CURIAM.
[Ohio St.3d 269] {¶ 1} We affirm the judgment of the court of appeals denying the claim of appellant, Tramaine Martin, for a writ of mandamus to compel appellee, Cuyahoga County Court of Common Pleas Judge Michael J. Russo, to vacate his sentence in a criminal case and resentence him.
{¶ 2} As the court of appeals correctly held, Martin's claims of sentencing error, including his allied-offense claim, are not cognizable in an action for an extraordinary writ, because he has an adequate remedy by appeal to raise these claims. See State ex rel. Voleck v. Powhatan Point, 127 Ohio St.3d 299, 2010-Ohio-5679, 939 N.E.2d 819, ¶ 7 (“Mandamus will not issue when the relators have an adequate remedy in the ordinary course of law”); State ex rel. Cotton v. Russo, 125 Ohio St.3d 449, 2010-Ohio-2111, 928 N.E.2d 1092, ¶ 1 (affirming denial of writs of mandamus and procedendo because insofar as relator attempted to raise claims of sentencing error, he had an adequate remedy by appeal to raise them); cf. Smith v. Voorhies, 119 Ohio St.3d 345, 2008-Ohio-4479, 894 N.E.2d 44, ¶ 10 (“allied-offense claims are nonjurisdictional and are not cognizable in habeas corpus”).
{¶ 3} Moreover, res judicata bars Martin from raising the same claims he raised in his appeal. State ex rel. Brown v. Wauford, 129 Ohio St.3d 17, 2011-Ohio-2858, 949 N.E.2d 999, ¶ 2; see State v. Martin, Cuyahoga App. No. 95281, 2011-Ohio-222, 2011 WL 287192. “Mandamus is not a substitute for an unsuccessful appeal.” State ex rel. Marshall v. Glavas, 98 Ohio St.3d 297, 2003-Ohio-857, 784 N.E.2d 97, ¶ 6.
{¶ 4} Based on the foregoing, we affirm the judgment of the court of appeals.
Judgment affirmed.