[Cite as State ex rel. Gonzalez v. Astrab, 2012-Ohio-3582.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97922
STATE EX REL. EDGAR GONZALEZ
RELATOR
vs.
JUDGE MICHAEL ASTRAB, ET AL.
RESPONDENTS
JUDGMENT:
COMPLAINT DISMISSED
Writ of Mandamus and Procedendo
Motion No. 452465
Order No. 456884
RELEASE DATE: August 9, 2012
RELATOR
Edgar Gonzalez
No. 593-445
Lorain Correctional Institution
2075 South Avon Belden Road
Grafton, Ohio 44044
ATTORNEYS FOR RESPONDENTS
William D. Mason, Esq.
Cuyahoga County Prosecutor
By: James E. Moss, Esq.
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:
{¶1} Relator, Edgar Gonzalez, is the defendant in State v. Gonzalez, Cuyahoga
C.P. No. CR-504595, which has been assigned to respondent judge, a member of
respondent court. Gonzalez complains that the court of common pleas imposed sentence
without properly addressing the issue of allied offenses of similar import under R.C.
2941.25. Gonzalez argues that his sentence is void and requests this court to issue a writ
of mandamus and/or procedendo to compel respondents to have him returned to
Cuyahoga County “to be sentenced to a lawful sentence * * *.” Complaint, ¶ 11.
{¶2} Respondents have filed a motion to dismiss and argue that relief in
mandamus and/or procedendo is not appropriate. We agree.
{¶3} In State ex rel. Agosto v. Gallagher, 8th Dist. No. 97760, 2011-Ohio-4514,
aff’d, 131 Ohio St.3d 176, 2012-Ohio-563, 962 N.E.2d 796, the relator complained that
his sentence was void because the court of common pleas improperly sentenced him to
allied offenses. Agosto requested relief in mandamus and/or procedendo to compel the
respondents — the court of common pleas and a judge of that court — to bring him back
to that court to receive a “lawful sentence.” Id. at ¶ 2. We denied Agosto’s claim for
relief and the Supreme Court affirmed observing:
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.
Id. at ¶ 3.
{¶4} The Supreme Court has stated clearly that original actions do not provide a
remedy for allied-offense claims. As a consequence, we must hold that Gonzalez’s
complaint fails to state a claim upon which relief can be granted.
{¶5} Accordingly, respondents’ motion to dismiss is granted. Relator to pay
costs. The court directs the clerk of court to serve all parties notice of this judgment and
its date of entry upon the journal as required by Civ.R. 58(B).
{¶6} Complaint dismissed.
KATHLEEN ANN KEOUGH, JUDGE
MARY J. BOYLE, P.J., and
MARY EILEEN KILBANE, J., CONCUR