[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 “correct 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 duty 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 inferences are made in the relator’s 

favor, it appears beyond doubt that he can prove no set of facts 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 count 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 here. 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 eighteen months. This 

claim is not cognizable in mandamus. “[S]entencing errors are generally not remediable 

by extraordinary writ, because the defendant usually has an adequate 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 adequate 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 proceedings Mr. King has 

previously pursued to challenge his sentence. This basis alone supports granting the 

Muskingum County Prosecutor’s Motion to Dismiss Relator’s Successive Petition for Writ 

of Mandamus. 

{¶5} Further, and as an independent ground, we also note that Mr. King 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 applying and verified by 

affidavit. * * *” (Emphasis added.) Mr. King did not file a “petition” 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. Instead, the “Memorandum in 

Support” sets forth in a brief format Mr. King’s argument regarding 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 parties 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