[Cite as State ex rel. Elliott v. Haas , 2011-Ohio-1037.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE EX REL. BRADLEY ELLIOTT Relator

-vsHONORABLE JOHN G. HAAS Respondent JUDGES: : Hon. W. Scott Gwin, P.J. : Hon. Julie A. Edwards, J. : Hon. Patricia A. Delaney, J. : : : Case No. 2010-CA-00281 : : : O P I N I O N

CHARACTER OF PROCEEDING: Writ of Mandamus JUDGMENT: Dismissed DATE OF JUDGMENT ENTRY: March 7, 2011 APPEARANCES: For: Relator For: Respondent BRADLEY ELLIOTT PRO SE KATHLEEN O. TATARSKY BECI Assistant Prosecuting Attorney Box 540 Appellate Section St. Clairsville, OH 43950 Stark County Prosecutor’s Office 110 Central Plaza South, Ste. 510 Canton, OH 44702-1413[Cite as State ex rel. Elliott v. Haas , 2011-Ohio-1037.]
Gwin, P.J. {¶1} Relator, Bradley Elliott, has filed a Petition for Writ of Mandamus challenging the trial court’s imposition of court costs without having considered Relator’s ability to pay. Respondent has also filed an An swer as well as a motion to dismiss or motion for summary judgment. {¶2} 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. {¶3} We have previously held, the appropriate forum for challenging court costs is by way of appeal from the sentencing entry; therefore, an adequate remedy at law exists for making such a challenge. See State of Ohio ex rel. Biros v. Logan, 2003 WL 22326666, *2 (Ohio App. 11 Dist.) ( [T]he propriety of a decision to impose court costs on a convicted defendant can only be contested in a direct appeal from the sentencing judgment.). See Wuescher v. Whitney 2008 WL 142575, 1 (Ohio App. 5 Dist.) and State ex rel. Bachman v. Heath , 2010 WL 320478, 2 (Ohio App. 5 Dist.). {¶4} Other courts have similarly held, “[A defendant’s] legal remedy to challenge the court's imposition of court costs [is] by direct appeal of his sentencing entry. Threatt, supra. See, also, State ex rel. Biros v. Logan, Trumbull App. No.2003-T0016, at ¶ 10 (finding that res judicata bars relator from collaterally attacking an order imposing court costs in a mandamus action). State v. Russell , 2011 WL 334184, 3 (Ohio App. 2 Dist.).Stark County, Case No. 2010-CA-00281 3
{¶5} Because Relator has or had an adequate remedy at law to challenge the imposition of court costs, a writ of mandamus does not lie. For this reason, we grant Respondent’s motion to dismiss. {¶6} RESPONDENT’S MOTION TO DISMISS GRANTED. {¶7} PETITION DISMISSED. {¶8} COSTS TO RELATOR. {¶9} IT IS SO ORDERED.

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

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. JULIE A. EDWARDS

_________________________________ HON. PATRICIA A. DELANEY

WSG:clw 0209[Cite as State ex rel. Elliott v. Haas , 2011-Ohio-1037.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE EX REL. BRADLEY ELLIOTT : : Relator : : : -vs- : JUDGMENT ENTRY : HONORABLE JOHN G. HAAS : : : Respondent : CASE NO. 2010-CA-00281

For the reasons stated in our accompanying Memorandum-Opinion, Respondent’s Motion to Dismiss is granted, and the instant cause is dismissed. Costs to Relator.

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. JULIE A. EDWARDS

_________________________________ HON. PATRICIA A. DELANEY