[Cite as State ex rel. King v. Fleegle , 2019-Ohio-4932.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE EX REL. RICHARD KING

Relator

-vsJUDGE MARK C. FLEEGLE Respondent JUDGES: : Hon. W. Scott Gwin, P.J. : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. : : : Case No. CT2019-0081 : : : O P I N I O N

CHARACTER OF PROCEEDING: Writ of Mandamus

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: November 25, 2019

APPEARANCES: For Relator For Respondent RICHARD KING #489-103, Pro Se D. MICHAEL HADDOX North Central Correctional Institution Prosecuting Attorney Box 1812 By MARK A. ZANGHI Marion, OH 43301 Assistant Prosecuting Attorney Box 189 Zanesville, OH 43702-0189[Cite as State ex rel. King v. Fleegle , 2019-Ohio-4932.]

Gwin, P.J. {¶1} On November 1, 2019, Richard King filed a petition for writ of mandamus requesting that this Court order Judge Mark C. Fleegle to “corr ect his sentence that is contrary to law and void.” 1 Mr. King contends his sentence is contrary to law and void because Judge Fleegle imposed an eight-year prison term rather than an eighteen-month sentence for an alleged fourth degree felony count of pandering obscenity to a minor. {¶2} For a writ of mandamus to issue, the relator must have a clear right to the relief prayed for, the respondent must be under a clear legal d uty to perform the requested act, and relator must have no plain and adequate remedy in the ordinary course of law. (Citation omitted.) State ex rel. Berger v. McMonagle , 6 Ohio St.3d 28, 29, 451 N.E.2d 225 (1983). The Muskingum County Prosecutor, on behalf of Judge Fleegle, has moved to dismiss Mr. King’s writ. {¶3} A court is permitted to dismiss a mandamus action under Civ.R. 12(B)(6) for failure to state a claim upon which relief can be granted “ if, after all factual allegations of the complaint are presumed true and all reasonable inference s are made in the relator’s favor, it appears beyond doubt that he can prove no set of fact s entitling him to the requested writ of mandamus.” State ex rel. Russell v. Thornton , 111 Ohio St.3d 409, 2006-Ohio-5858, 856 N.E.2d 966, ¶9. {¶4} Mr. King’s writ alleges a sentencing error. He claims the trial court improperly sentenced him to an eight-year prison term, for coun t one of the indictment, pandering obscenity involving a minor. He claims this count is a fourth degree felony and

1 On September 27, 2019, this Court dismissed a Writ of Mandamus filed by Mr. King wherein he argued the same grounds for relief that he asserts h ere. See State ex rel. King v. Fleegle , 5th Dist. Muskingum No. CT2019-0013, 2019-Ohio-4038.Muskingum County, Case No. CT2019-0081 3

as such, he could only be sentenced to a maximum sentence of ei ghteen months. This claim is not cognizable in mandamus. “[S]entencing errors are g enerally not remediable by extraordinary writ, because the defendant usually has an ade quate remedy at law available by way of direct appeal.” State ex rel. Ridenour v. O’Connell , 147 Ohio St.3d 351, 2016-Ohio-7368, 65 N.E.3d 742, ¶3. Here, Mr. King had an a dequate remedy at law because he could have and did challenge his sentence on direct appeal and by way of post-conviction relief. See State ex rel. King v. Fleegle , 5th Dist. Muskingum No. CT2019- 0013, 2019-Ohio-4038, ¶8, which reviews the various legal proce edings Mr. King has previously pursued to challenge his sentence. This basis alone supports granting the Muskingum County Prosecutor’s Motion to Dismiss Relator’s Succe ssive Petition for Writ

of Mandamus. {¶5} Further, and as an independent ground, we also note that Mr. Ki ng failed to comply with R.C. 2734.04, which requires: “Application for the writ of mandamus must be by petition , in the name of the state on the relation of the person applyi ng and verified by affidavit. * * *” (Emphasis added.) Mr. King did not file a “pe tition” in support of his application for writ of mandamus. Although he titles the first page of his pleading a “Petition for Writ of Mandamus[,]” it is merely an introduction to the relief that he requests. The next page of Mr. King’s “Petition for Writ of Mandamus” is titled, “Memorandum in Support.” The petition is not in the form of a complaint. Inste ad, the “Memorandum in Support” sets forth in a brief format Mr. King’s argument regar ding why he believes he is entitled to mandamus relief. The failure to include a complaint as part of his Petition for Writ of Mandamus serves as an independent basis under Civ.R. 12 (B)(6) to dismiss Mr. King’s mandamus petition.Muskingum County, Case No. CT2019-0081 4

{¶6} The clerk of courts is hereby directed to serve upon all partie s not in default notice of this judgment and its date of entry upon the journal. See Civ.R. 58(B). {¶7} MOTION GRANTED. {¶8} CAUSE DISMISSED. {¶9} COSTS TO RELATOR. {¶10} IT IS SO ORDERED.

By Gwin, P.J., Delaney, J., and Baldwin, J., concur