State ex rel. Lusher v. Robinson
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[Cite as State ex rel. Lusher v. Robinson, 2016-Ohio-1461.] COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO, EX REL MARK LUSHER Relator -vs- JUDGES: Hon. William B. Hoffman, P.J. Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. Case No. 15CA60 HON. BRENT ROBINSON, JUDGE OPINION Respondent CHARACTER OF PROCEEDING: Writ of Procedendo JUDGMENT: Dismissed DATE OF JUDGMENT ENTRY: March 31, 2016 APPEARANCES: Relator Respondent MARK LUSHER A560953 Richland Correctional Inst. P.O. Box 8107 Mansfield, Ohio 44901 MELISSA A. ANGST Assistant Richland County Prosecutor 38 South Park Street, 2nd Floor Mansfield, Ohio 44902 Richland County, Case No. 15CA60 2 Hoffman, P.J. {¶1} Relator, Mark Lusher, has filed a complaint for writ of procedendo requesting this Court order Respondent to issue a final, appealable order. Respondent has filed a motion to dismiss for failure to state a claim upon which relief may be granted. {¶2} Relator entered a guilty plea in the Richland County Court of Common Pleas to counts of aggravated vehicular homicide, aggravated vehicular assault, and OVI. He received a total sentence of eight years in prison. {¶3} Relator’s sole argument is that his sentence is void because Respondent failed to advise him orally in the plea colloquy that he was waiving his constitutional rights by entering a guilty plea. In short, Relator contends the trial court did not comply with Crim.R. 11 when taking Relator’s plea. It is his contention Respondent has never fulfilled his legal duty to proceed to judgment. {¶4} “To be entitled to a writ of procedendo, [a relator] must show a clear legal right to require the court to proceed, a clear legal duty on the part of the court to proceed, and the lack of an adequate remedy in the ordinary course of the law. State ex rel. Sherrills v. Cuyahoga Cty. Court of Common Pleas, 72 Ohio St.3d 461, 462, 650 N.E.2d 899 (1995).” State ex rel. Elkins v. Fais, 143 Ohio St.3d 366, 367, 2015-Ohio-2873, 37 N.E.3d 1229, 1230, ¶¶ 7-8 (2015). {¶5} “An appeal is an adequate remedy in the ordinary course of law that precludes an action for * * * procedendo.” State ex rel. Ward v. Reed, 141 Ohio St.3d 50, 2014-Ohio-4512, 21 N.E.3d 303, ¶ 12, citing State ex rel. Crabtree v. Franklin Cty. Bd. of Health, 77 Ohio St.3d 247, 250, 673 N.E.2d 1281 (1997), and State ex rel. Sevayega v. McMonagle, 122 Ohio St.3d 54, 2009-Ohio-2367, 907 N.E.2d 1180, ¶ 1.” Id. Richland County, Case No. 15CA60 {¶6} 3 In Smith v. State, the Eleventh District found an adequate remedy at law existed where a petitioner in a habeas corpus case claimed he was entitled to immediate release from prison because the plea was void due to the trial court’s alleged failure to comply with Crim.R. 11. Smith v. State, 11th Dist. Ashtabula No. 2009-A-0019, 2009Ohio-3940. The Court held, “[P]etitioner could have contested the propriety of the procedure during the plea hearing in a direct appeal or in a motion to withdraw his guilty plea.” Id. at paragraph 14. {¶7} While Relator in this matter has used procedendo rather than habeas corpus to bring the issue before us, we find he has or had an adequate remedy at law by way of direct appeal or motion to withdraw his guilty plea to raise any potential noncompliance with Crim.R. 11. As in a habeas corpus action, the existence of an adequate remedy at law bars the issuance of a writ of procedendo. {¶8} Because Relator has failed to state a claim upon which relief may be granted due to the existence of an adequate remedy at law, we dismiss the complaint. By: Hoffman, P.J. Wise, J. and Baldwin, J. concur
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