State ex rel. Olmstead v. Forsthoefel (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Olmstead v. Forsthoefel, Slip Opinion No. 2020-Ohio-4951.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                          SLIP OPINION NO. 2020-OHIO-4951
     THE STATE EX REL. OLMSTEAD, APPELLANT, v. FORSTHOEFEL, JUDGE,
                                         APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
     may be cited as State ex rel. Olmstead v. Forsthoefel, Slip Opinion No.
                                     2020-Ohio-4951.]
Mandamus—Appellant’s claim of sentencing error is not cognizable in
        mandamus—Court of appeals’ dismissal of petition affirmed.
   (No. 2020-0646—Submitted August 18, 2020—Decided October 21, 2020.)
    APPEAL from the Court of Appeals for Ashland County, No. 20-COA-007,
                                      2020-Ohio-1638.
                                    ________________
        Per Curiam.
        {¶ 1} Appellant, Brandon Olmstead, appeals the judgment of the Fifth
District Court of Appeals dismissing his petition for a writ of mandamus against
Ashland County Court of Common Pleas Judge Ronald P. Forsthoefel. We affirm.
                             SUPREME COURT OF OHIO




                                    Background
       {¶ 2} In April 2017, Olmstead was charged in a six-count indictment with
trafficking in marijuana (Counts 1 and 2), aggravated trafficking in drugs (Count
3), complicity to commit aggravated possession of drugs (Count 4), complicity to
commit aggravated trafficking in drugs (Count 5), and possessing criminal tools
(Count 6). He was found guilty of all counts, and Judge Forsthoefel sentenced him
to an aggregate prison term of 61 months. Of relevance to this case, the court
imposed a sentence of nine months on Count 4 and 30 months on Count 5, to be
served consecutively.
       {¶ 3} On appeal, Olmstead unsuccessfully argued that his conviction for
Count 6 should have merged with his convictions for Counts 4 and 5 as an allied
offense of similar import. State v. Olmstead, 5th Dist. Ashland No. 18-COA-016,
2018-Ohio-5301, ¶ 26, 29. Olmstead filed an application to reopen his appeal,
arguing that appellate counsel was ineffective in arguing that Count 6 should have
merged with Counts 4 and 5 instead of arguing that Counts 4 and 5 should have
merged with each other, but the application was denied due to a technical defect.
He also raised the trial court’s failure to merge Counts 4 and 5 in two other filings:
in a motion to modify his sentence, which the trial court denied on the merits, and
in a “motion to notice plain error,” which the court of appeals denied as
procedurally improper.
       {¶ 4} On January 21, 2020, Olmstead filed a petition in the Fifth District
Court of Appeals, seeking a writ of mandamus to compel Judge Forsthoefel to
vacate his sentence, merge Counts 4 and 5, and resentence him. The court of
appeals granted Judge Forsthoefel’s motion to dismiss and denied Olmstead’s
motion for summary judgment as moot.
       {¶ 5} Olmstead has appealed to this court.




                                          2
                                January Term, 2020




                                   Legal analysis
       {¶ 6} For a court to dismiss a complaint pursuant to Civ.R. 12(B)(6), it must
appear beyond doubt from the complaint that the relator can prove no set of facts
warranting relief, after all factual allegations of the complaint are presumed true
and all reasonable inferences are made in the relator’s favor. State ex rel. Natl.
Elec. Contrs. Assn., Ohio Conference v. Ohio Bur. of Emp. Servs., 

83 Ohio St. 3d 179

, 181, 

699 N.E.2d 64

(1998). We review a dismissal under Civ.R. 12(B)(6) de
novo. State ex rel. Brown v. Nusbaum, 

152 Ohio St. 3d 284

, 2017-Ohio-9141, 

95 N.E.3d 365

, ¶ 10.
       {¶ 7} To be entitled to a writ of mandamus, a relator must establish, by clear
and convincing evidence, (1) a clear legal right to the requested relief, (2) a clear
legal duty on the part of the respondent to provide it, and (3) the lack of an adequate
remedy in the ordinary course of the law. State ex rel. Love v. O’Donnell, 150 Ohio
St.3d 378, 2017-Ohio-5659, 

81 N.E.3d 1250

, ¶ 3. The court of appeals dismissed
Olmstead’s petition because his allegations could not satisfy the third requirement
of the mandamus standard: Olmstead had an adequate remedy at law to raise his
merger claim, by way of a direct appeal from his underlying convictions. 2020-
Ohio-1638, ¶ 5.
       {¶ 8} Mandamus will generally not lie to correct sentencing errors, because
a criminal defendant usually has an adequate remedy through direct appeal. State
ex rel. Ridenour v. O’Connell, 

147 Ohio St. 3d 351

, 2016-Ohio-7368, 

65 N.E.3d 742

, ¶ 3. A court’s failure to merge allied offenses is a sentencing error for which
an adequate remedy exists. State ex rel. Sands v. Culotta, 

158 Ohio St. 3d 1

, 2019-
Ohio-3784, 

139 N.E.3d 849

, ¶ 10. The court of appeals correctly determined that
Olmstead’s complaint fails to state a claim for relief in mandamus.
       {¶ 9} Olmstead argues that at the present time he has no remedy in the
ordinary course of the law because he has already unsuccessfully pursued one. But
“[w]here a plain and adequate remedy at law has been unsuccessfully invoked, a




                                          3
                             SUPREME COURT OF OHIO




writ of mandamus will not lie to relitigate the same issue.” State ex rel. Sampson
v. Parrott, 

82 Ohio St. 3d 92

, 93, 

694 N.E.2d 463

(1998).
       {¶ 10} Alternatively, Olmstead argues that he was denied the adequate
remedy of appeal due to his counsel’s negligence in failing to make the proper legal
argument. But an appellant who believes that ineffective assistance of counsel has
compromised his appeal still has an adequate remedy in the form of an App.R.
26(B) application to reopen the appeal. State ex rel. Russell v. Klatt, 

159 Ohio St. 3d 257

, 2020-Ohio-875, 

150 N.E.3d 943

, ¶ 10. Unlike the relator in Russell, Olmstead
did file an application to reopen his appeal, but he contends that it was denied
because he failed to comply with the court’s page limitation. However, the
availability of appeal is an adequate remedy even when the appeal is “dismissed for
a procedural failure.” Jackson v. Johnson, 

135 Ohio St. 3d 364

, 2013-Ohio-999,

986 N.E.2d 989

, ¶ 5.
       {¶ 11} For these reasons, we affirm the judgment of the court of appeals
granting Judge Forsthoefel’s motion to dismiss.
                                                                 Judgment affirmed.
       O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, DONNELLY,
and STEWART, JJ., concur.
                               _________________
       Brandon Olmstead, pro se.
       Christopher R. Tunnell, Ashland County Prosecuting Attorney, and
Michael D. Donatini, Assistant Prosecuting Attorney, for appellee.
                               _________________




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