[Cite as State ex rel. Black v. Forchione, 2014-Ohio-4560.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO EX. REL. : Hon. William B. Hoffman, P.J.
LAWRENCE BLACK : Hon. W. Scott Gwin, J.
: Hon. John W. Wise, J.
Relator :
:
-vs- : Case No. 2014CA00129
:
JUDGE FRANK G. FORCHIONE :
: OPINION
Respondent
CHARACTER OF PROCEEDING: Writ of Mandamus
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: October 14, 2014
APPEARANCES:
For: Relator For: Respondent
LAWRENCE BLACK PRO SE JOHN D. FERRERO
1511 Maple Avenue N.E. Stark County Prosecutor
Canton, OH 44702 BY: KATHLEEN O. TATARSKY
110 Central Plaza South
Canton, OH 44702
[Cite as State ex rel. Black v. Forchione, 2014-Ohio-4560.]
Gwin, J.,
{¶1} Relator, Lawrence Black, has filed a Petition for Writ of Mandamus asking
this Court to find Respondent lacks jurisdiction to preside over Relator’s criminal case.
{¶2} Respondent has filed a motion to dismiss arguing Relator has failed to
demonstrate his entitlement to the requested writ.
{¶3} For a writ of mandamus to issue, the relator must have a clear legal right
to the relief prayed for, the respondent must be under a clear legal duty to perform the
requested act, and relator must have no plain and adequate remedy in the ordinary
course of law. State, ex rel. Berger, v. McMonagle (1983), 6 Ohio St.3d 28, 6 OBR 50,
451 N.E.2d 225.
{¶4} Although it is difficult to understand the petition, it appears Relator
believes Respondent is not permitted to be assigned to his current criminal case
wherein Relator is charged with failing to register as a sex offender as required. Relator
argues the judge who found Relator to be a sex offender should have been the judge
assigned to the new failure to register case. Respondent was not the judge who
declared Relator a sex offender.
{¶5} “[A] claim of improper assignment of a judge can generally be adequately
raised by way of appeal. See, e.g., State ex rel. Berger v. McMonagle (1983), 6 Ohio
St.3d 28, 30, 6 OBR 50, 52, 451 N.E.2d 225, 227–228 (mandamus and prohibition no
substitute for appeal to contest alleged improper assignment of judge).” State ex rel.
Key v. Spicer, 2001-Ohio-98, 91 Ohio St. 3d 469, 469, 746 N.E.2d 1119, 1120.
Stark County, Case No. 2014CA00129 3
{¶6} Because Relator has an adequate remedy at law by way of appeal to
challenge the assignment of Respondent, the writ cannot issue. For this reason, the
motion to dismiss is granted.
By Gwin, J.,
Hoffman, P.J., and
Wise, J., concur