Summary
In State ex rel. Leis v. Outcalt, 62 Ohio St.2d 331, 405 N.E.2d 715 (1980), the judge accepted Beasley's guilty plea to two counts of felonious assault with a deadly weapon and sentenced her to pay a $500 fine for each count.
Summary of this case from Lenard v. RussoOpinion
No. 79-1231
Decided June 18, 1980.
Mandamus — Remedy not available, when — Adequate remedy of appeal available — Action by prosecuting attorney — To compel judge to sentence according to R.C. 2929.11.
APPEAL from the Court of Appeals for Hamilton County.
This cause arises from an action in mandamus filed by relator, Simon L. Leis, Jr., the Prosecuting Attorney for Hamilton County, to compel respondent, Judge Peter Outcalt of the Court of Common Pleas of Hamilton County, to impose sentence on Barbara Beasley, a.k.a. Barbara Christian (hereinafter "defendant"), in conformity with R.C. 2929.11.
R.C. 2929.11(B) provides:
"Terms of imprisonment for a felony shall be imposed as follows:
"* * *
"(2) For a felony of the second degree the minimum term shall be two, three, four, or five years and the maximum term shall be fifteen years."
The Grand Jury of Hamilton County indicted the defendant on two counts of felonious assault with a deadly weapon, a felony of the second degree. On November 30, 1978, the defendant's cause came before respondent for disposition, at which time the defendant entered a plea of no contest to each count of the indictment. After accepting the defendant's plea, respondent found the defendant guilty as charged and, over the objections of relator made in the judge's chambers, sentenced the defendant to pay a $500 fine for each count of the indictment. No sentence of imprisonment was imposed.
On December 6, 1978, relator instituted the instant action in mandamus in the Court of Appeals. On that date the defendant paid the outstanding fines and costs assessed by the trial court. Thereafter, on August 15, 1979, the Court of Appeals issued a writ of mandamus ordering respondent to impose the sentence of imprisonment mandated by R.C. 2929.11. On August 21, 1979, respondent set aside the defendant's sentence and resentenced the defendant to two concurrent terms of imprisonment of not less than two years and fined the defendant $500 for each count of the indictment.
Relator indicates to this court that an appeal from this order is now pending in the Court of Appeals for Hamilton County.
The cause is now before this court as a matter of right.
Mr. Simon L. Leis, Jr., prosecuting attorney, and Mr. Leonard Kirschner, pro se. Mr. William D. Cunningham, for appellant.
The question presented by this cause is whether the issuance of the writ of mandamus by the Court of Appeals compelling respondent to sentence the defendant in conformity with R.C. 2929.11 was proper.
In State, ex rel. Cleveland, v. Calandra (1980), 62 Ohio St.2d 121, 403 N.E.2d 989, this court affirmed the denial of a complaint for a writ of mandamus in a cause involving the refusal of a trial judge to impose the mandatory sentence required by Section 619.09(B)(1) of the Cleveland city ordinances. This court held that the prosecutor possessed a plain and adequate remedy at law under R.C. 2945.67(A), which provides, in applicable part:
"A prosecuting attorney, village solicitor, [or] city director of law* * *may appeal by leave of the court to which the appeal is taken any other decision, except the final verdict, of the trial court in a criminal case* * *."
Although the instant cause differs from Calandra to some degree, inasmuch as the trial court in this cause refused to apply the sentence prescribed by statute, whereas in Calandra the court declared the mandatory sentencing ordinance unconstitutional, this distinction does not render our holding in Calandra inapplicable to the cause at bar. The instant relator possessed a plain and adequate remedy in the ordinary course of law. See State, ex rel. Gargallo, v. Court of Common Pleas (1972), 31 Ohio St.2d 45, 285 N.E.2d 13; State, ex rel. Kay, v. Cleveland (1971), 27 Ohio St.2d 37, 271 N.E.2d 784; State, ex rel. Corron, v. Wisner (1971), 25 Ohio St.2d 160, 267 N.E.2d 308; State, ex rel. Sibarco Corp., v. Berea (1966), 7 Ohio St.2d 85, 218 N.E.2d 428, certiorari denied, 386 U.S. 957.
State, ex rel. Moraites, v. Gorman (1975), 42 Ohio St.2d 175, 326 N.E.2d 868, was decided prior to the effective date of present R.C. 2945.67.
Accordingly, the judgment of the Court of Appeals is reversed.
Judgment reversed.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.