State ex rel. Atkinson v. Ohio Adult Parole Auth.

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[Cite as State ex rel. Atkinson v. Ohio Adult Parole Auth., 2009-Ohio-6654.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 93518 STATE OF OHIO EX REL., LASHAWN ATKINSON RELATOR vs. OHIO ADULT PAROLE AUTHORITY RESPONDENT JUDGMENT: COMPLAINT DISMISSED Writ of Mandamus Motion No. 424315 Order No. 428913 RELEASE DATE: December 11, 2009 2 FOR RELATOR Lashawn Atkinson, pro se Cuyahoga County Jail P.O. Box 5600 1215 W. 3rd Street Cleveland, Ohio 44101 Lashawn Atkinson, pro se 11308 Durant Avenue Cleveland, Ohio 44108 ATTORNEYS FOR RESPONDENT Richard A. Cordray Attorney General of Ohio Ryan G. Dolan Assistant Attorney General 150 East Gay Street 16th Floor Columbus, Ohio 43215-6001 ANN DYKE, J.: {¶ 1} Relator, Lashawn Atkinson, is the defendant in State v. Atkinson, Cuyahoga County Court of Common Pleas Case No. CR-456940. Atkinson was sentenced to three years. When he was released from prison in January 2008, the Ohio Adult Parole Authority ( APA ) placed Atkinson on postrelease control for five years.1 1 A review of the docket in Case No. CR-456940 reflects that the trial court issued a resentencing entry on July 31, 2009. Atkinson s appeal of that judgment is pending as State v. Atkinson, Case No. 93855. 3 {¶ 2} Atkinson argues that APA did not have the authority to place him on postrelease control because he was not informed of postrelease control at his sentencing hearing. Atkinson requests that this court issue a writ of mandamus and order Respondent Ohio Adult Parole Authority, to promptly remove/vacate its illegal January 14th 2008 order of five years PRC that the APA imposed on Relator Atkinson. (Emphasis in original.) Complaint, ad damnum clause. {¶ 3} Respondent has filed a motion to dismiss. Atkinson has opposed the motion to dismiss and argues, inter alia, that the APA s postrelease control order is illegal and that he does not have an adequate remedy in the ordinary course of the law. For the reasons stated below, we grant the motion to dismiss. {¶ 4} Respondent argues that Atkinson has or had an adequate remedy by way of appeal to challenge the propriety of the inclusion of postrelease control in the sentencing entry. In Jackson v. Phillips, Cuyahoga App. No. 91963, 2009-Ohio-125, at ¶10 (denying an application for habeas corpus), this court discussed Patterson v. Ohio Adult Parole Auth., 120 Ohio St.3d 311, 2008-Ohio-6147, 898 N.E.2d 950. In Patterson, the posture of the underlying case was comparable to that in the Case No. CR-456940. {¶ 5} Patterson is particularly instructive * * *. In that case, Patterson commenced a habeas corpus to contest his post-release control sanctions. He claimed that the trial judge failed to notify him of post-release control during the sentencing hearing, although the judge included it in the sentencing entry. The Supreme Court of Ohio upheld the dismissal of the habeas corpus action on the 4 grounds of adequate remedy at law. Patterson had an adequate remedy by way of direct appeal from his sentence to raise his claim that he did not receive proper notification about postrelease control at his sentencing hearing. E.g., Watkins v. Collins, 111 Ohio St.3d 425, 2006-Ohio-5082, 857 N.E.2d 78, ¶ 45 ( The remedy for improper notification about postrelease control at the sentencing hearing is resentencing-not release from prison and ¶ 53 ( habeas corpus is not available to contest any error in the sentencing entries, and petitioners have or had an adequate remedy by way of appeal to challenge the imposition of postrelease control ). Patterson at ¶ 8. Jackson, supra, at ¶10. {¶ 6} Although Patterson and Jackson were actions in habeas corpus, this case presents the same issue: whether the petitioner/relator has or had an adequate remedy if, as Atkinson avers in the complaint, the petitioner/relator was not informed at sentencing that he was subject to postrelease control, but the sentencing entry did include the imposition of postrelease control. In light of the holding in Patterson, therefore, we must conclude that appeal is the remedy which Atkinson should pursue or should have pursued, not an original action in mandamus. {¶ 7} We also note that Atkinson has not provided this court with any controlling authority that would prevent APA from acting in conformity with the sentencing entry by imposing postrelease control. As a consequence, Atkinson has not demonstrated that APA has a clear legal duty to vacate its order enforcing postrelease control or that Atkinson has a clear legal right to that relief. 5 {¶ 8} Accordingly, respondent s motion to dismiss is granted. Relator to pay costs. The clerk is directed to serve upon the parties notice of this judgment and its date of entry upon the journal. Civ.R. 58(B). Complaint dismissed. ANN DYKE, PRESIDING JUDGE MARY J. BOYLE, J., and FRANK D. CELEBREZZE, JR., J., CONCUR

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