[Cite as State ex rel. Allen v. Sutula, 2014-Ohio-505.]

Court of Appeals of Ohio 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 100743 

STATE EX REL., BRANDON M. ALLEN 

RELATOR 

vs. 

JUDGE KATHLEEN A. SUTULA 

RESPONDENT 

JUDGMENT: 

WRIT DISMISSED 

Writ of Mandamus 

Motion No. 471253 

Order No. 471791 

RELEASE DATE: February 11, 2014 
RELATOR

Brandon M. Allen, pro se 

Inmate #620-533 

P.O. Box 788 

Mansfield, Ohio 44901 

ATTORNEY FOR RESPONDENT

Timothy J. McGinty 

Cuyahoga County Prosecutor 

Justice Center - 8th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
MARY EILEEN KILBANE, J.:

{¶1} Relator, Brandon M. Allen, has filed with this court various affidavits that 

purport to support a mandamus action against respondent, Judge Kathleen A. Sutula. 

Respondent has moved for dismissal of the action, which we grant for the reasons that 

follow. 

{¶2} Relator failed to commence an action by way of petition or complaint as 

required by law. Loc.App.R. 45(B). In State ex rel. Simms v. Sutula, 81 Ohio St.3d 

110, 111, 689 N.E.2d 564 (1988), the Supreme Court of Ohio affirmed the court of 

appeals’ dismissal of a writ action by holding: “original actions for extraordinary relief, 

e.g., a writ of procedendo, must be commenced by filing a complaint or petition rather 

than a motion.” See also State ex rel. Foster v. Buchanan, 8th Dist. Cuyahoga No. 

85962, 2006-Ohio-2061 (dismissing relator’s motion for a writ of mandamus as 

procedurally defective). A court may sua sponte dismiss a petition for an extraordinary 

writ when it is improperly captioned. Maloney v. Court of Common Pleas of Allen Cty., 

173 Ohio St. 226, 227, 181 N.E.2d 270 (1962); Turner v. State, 8th Dist. Cuyahoga No. 

94292, 2010-Ohio-683, ¶ 2. 

{¶3} In addition, Allen complains in his affidavits that the trial court erred by 

imposing maximum, consecutive sentences in an unspecified criminal matter. Assuming 

he seeks a writ of mandamus to compel the correction of an alleged sentencing error, he 

cannot establish the requirements for mandamus. The requisites for mandamus are well 

established: 1) the relator must establish a clear legal right to the requested relief; 2) the 
respondent must possess a clear legal duty to perform the requested relief; and 3) the 

relator does not possesses nor possessed an adequate remedy at law. State ex rel. Tran. 

v. McGrath, 78 Ohio St.3d 45, 676 N.E.2d 108 (1997). If any sentencing error occurred, 

Allen has or had an adequate remedy at law through a direct appeal or a motion to file a 

delayed appeal. State ex rel. Culgan v. Kimbler, 132 Ohio St.3d 480, 2012-Ohio-3310, 

974 N.E.2d 88 (“insofar as Culgan argues that one of his sentences is erroneous because 

there is no authorization for consecutive six-month jail sentences, he had an adequate 

remedy by appeal to raise his claim of sentencing error.”); Dunning v. State, 8th Dist. 

Cuyahoga No. 84982, 2004 Ohio App. LEXIS 6818 (Oct. 14, 2004); App.R. 5. 

{¶4} For all of these reasons, respondent’s motion to dismiss is granted. Costs to 

be assessed against relator. It is further ordered that the Clerk of the Eighth District 

Court of Appeals serve notice of this judgment upon all parties as required by Civ.R. 

58(B). 

{¶5} Writ dismissed. 

 

MARY EILEEN KILBANE, JUDGE 

MELODY J. STEWART, P.J., and 

KATHLEEN ANN KEOUGH, J., CONCUR