State ex rel. Agosto v. Gallagher

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After Jose Agosto was convicted and sentenced on criminal charges, Agosto unsuccessfully sought resentencing by raising claims for writs of mandamus and procedendo. Agosto again petitioned for writs of mandamus and procendendo to compel Appellees, a judge and the county court of common pleas, to resentence him to a lawful sentence that constitutes a valid final judgment. The court of appeals denied relief, concluding that res judicata barred Agosto from instituting a successive writ action for the same relief. The Supreme Court affirmed, holding that the court of appeals did not err where (1) res judicata barred Agosto's claims, and (2) some of Agosto's claims were not cognizable in an extraordinary-writ action.

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[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Agosto v. Gallagher, Slip Opinion No. 2012-Ohio-563.] NOTICE This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published. SLIP OPINION NO. 2012-OHIO-563 THE STATE EX REL. AGOSTO, APPELLANT, v. GALLAGHER, JUDGE, APPELLEE. [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Agosto v. Gallagher, Slip Opinion No. 2012-Ohio-563.] Mandamus Procedendo Res judicata bars successive writ for same relief Allied-offense claims not cognizable in extraordinary-writ action Sentencing entry provided sufficient notice of postrelease control Judgment denying writs affirmed. (No. 2011-1604 Submitted February 8, 2012 Decided February 16, 2012.) APPEAL from the Court of Appeals for Cuyahoga County, No. 96670, 2011-Ohio-4514. __________________ Per Curiam. {¶ 1} We affirm the judgment of the court of appeals denying the claims of appellant, Jose Agosto Jr., for writs of mandamus and procedendo to compel appellees, Judge Hollie L. Gallagher and the Cuyahoga County Court of Common SUPREME COURT OF OHIO Pleas, to resentence him to a lawful sentence that constitutes a valid final judgment. {¶ 2} Agosto has already unsuccessfully sought resentencing by raising a similar claim for writs of mandamus and procedendo. State ex rel. Agosto v. Cuyahoga Cty. Court of Common Pleas, 119 Ohio St.3d 366, 2008-Ohio-4607, 894 N.E.2d 314. The court of appeals correctly concluded that res judicata bars Agosto from instituting a successive writ action for the same relief. State ex rel. Clutter v. Wiseman, 127 Ohio St.3d 214, 2010-Ohio-4987, 938 N.E.2d 328. {¶ 3} Moreover, Agosto s allied-offense claims are nonjurisdictional and are not cognizable in an extraordinary-writ action. See Smith v. Voorhies, 119 Ohio St.3d 345, 2008-Ohio-4479, 894 N.E.2d 44, ¶ 10 (habeas corpus). Agosto had an adequate remedy in the ordinary course of law to raise his claims in an appeal from his sentencing entry. {¶ 4} Finally, Agosto s sentencing entry sufficiently included language that postrelease control was part of his sentence so as to afford him sufficient notice to raise any claimed errors on appeal rather than by extraordinary writ. State ex rel. Pruitt v. Cuyahoga Cty. Court of Common Pleas, 125 Ohio St.3d 402, 2010-Ohio-1808, 928 N.E.2d 722, ¶ 4; State ex rel. Castro v. Corrigan, 129 Ohio St.3d 342, 2011-Ohio-4059, 952 N.E.2d 497, ¶ 3. Judgment affirmed. O CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O DONNELL, LANZINGER, CUPP, and MCGEE BROWN, JJ., concur. _____________________ Jose Agosto Jr., pro se. William D. Mason, Cuyahoga County Prosecuting Attorney, and James E. Moss, Assistant Prosecuting Attorney, for appellees. ______________________ 2

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