Opinion
No. 83-674
Decided February 1, 1984.
Criminal law — Mandamus to compel evidentiary hearing in postconviction relief action — Writ denied, when — Adequate remedy by way of appeal exists, when.
APPEAL from the Court of Appeals for Belmont County.
This is an appeal as of right from the denial of a complaint for a writ of mandamus by the court of appeals.
In November 1981, a petition for postconviction relief brought by Clarence W. Kaldor, appellant herein, in the Court of Common Pleas of Belmont County, was dismissed and findings of fact and conclusions of law were issued. No evidentiary hearing was afforded. On appeal therefrom, the court of appeals remanded with instructions for the appointment of "* * * counsel to represent * * * [Kaldor] at an evidentiary hearing for a determination of * * * [Kaldor's] petition for post conviction relief to include a determination of the failure of appointed counsel to timely file * * * [Kaldor's] direct appeal * * *."
Pursuant to remand order, and after hearing with appointed counsel, the trial court on March 9, 1983, issued its findings of fact and conclusions of law thereby denying postconviction relief. The Opinion and Decision (designated as constituting findings of fact and conclusions of law) included a determination of the failure of defense counsel to timely file Kaldor's direct appeal, as specified by the remand instructions. The trial court did prohibit "* * * [Kaldor] from introducing any evidence on and directed to collateral issues which the Court of Appeals in its opinion stated `are matters that could or should have been raised on appeal and cannot properly be raised in post conviction.'"
The mandamus action sought to compel an evidentiary hearing, to include consideration of ineffective trial counsel and collateral issues raised in the postconviction action. Such mandamus relief was denied.
Mr. Clarence W. Kaldor, pro se. Mr. Terry S. Easterwood, special prosecutor, for appellee.
As noted in State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141 [40 O.O.2d 141], mandamus is an extraordinary remedy, and the third paragraph of the syllabus therein states in part that when "* * * it is determined that the relator has a plain and adequate remedy in the ordinary course of the law by way of appeal, neither the Supreme Court nor the Court of Appeals has authority to exercise jurisdictional discretion but those courts are required to deny the writ." The exhaustion of the plain and adequate remedies in the ordinary course of the law is a prerequisite to the issuance of such writ.
As to the adequacy of the remedy of appeal, appellant likens his situation with that involved in State v. Mapson (1982), 1 Ohio St.3d 217. In Mapson, however, the trial court issued no findings of fact and conclusions of law which deprived both the postconviction petitioner and the appellate court of the grounds supporting the judgment and, hence, prevented meaningful review. Here, findings of fact and conclusions of law were issued and reasons were given for the restrictions imposed at the evidentiary hearing. Thus, the denial of postconviction relief by the trial court is susceptible to plain and adequate review by way of appeal.
According to appellee, appellant has appealed the March 9, 1983 order of the trial court to the court of appeals.
For reason of the foregoing, the judgment of the court of appeals, denying the writ, is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.