State ex rel. Green v. Wetzel (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Green v. Wetzel, Slip Opinion No. 

.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
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      South Front Street, Columbus, Ohio 43215, of any typographical or other
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      the opinion is published.



                          SLIP OPINION NO. 

   THE STATE EX REL. GREEN, APPELLANT, v. WETZEL, JUDGE, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
          may be cited as State ex rel. Green v. Wetzel, Slip Opinion No.
                                     

.]
Mandamus—Appellant had adequate remedy at law by way of appeal—Court of
        appeals’ judgment dismissing petition affirmed.
    (No. 2019-0540—Submitted August 6, 2019—Decided October 17, 2019.)
         APPEAL from the Court of Appeals for Knox County, No. 18CA15,
                                       

.
                                    ________________
        Per Curiam.
        {¶ 1} Appellant, Shane L. Green, appeals the judgment of the Fifth District
Court of Appeals dismissing his petition for a writ of mandamus to compel
appellee, Knox County Court of Common Pleas Judge Richard Wetzel, to
resentence him. We affirm.
                             SUPREME COURT OF OHIO




                                   Background
       {¶ 2} In May 2008, a jury found Green guilty of rape of, and gross sexual
imposition on, a child less than 13 years of age. The trial court sentenced Green to
“a definite term” of life imprisonment for the rape count and a consecutive prison
term of five years for the gross-sexual-imposition count. The trial court also
imposed a five-year term of postrelease control. The court of appeals affirmed.
State v. Green, 5th Dist. Knox No. 08-CA-20, 

.
       {¶ 3} In 2015, Green filed a petition for postconviction relief; the trial court
denied it, and the court of appeals affirmed. State v. Green, 5th Dist. Knox No. 15-
CA-13, 

. Green sought reconsideration, arguing that he was not
properly notified of postrelease control and that the trial court erred by sentencing
him to a definite term of life imprisonment. State v. Green, 5th Dist. Knox No. 18-
CA-3, 

. The court of appeals rejected both arguments, holding
that the trial court’s postrelease-control notification was sufficient and that the
doctrine of res judicata barred Green’s challenge to his life sentence because it
could have been raised on direct appeal. Id. at ¶ 10-11.
       {¶ 4} In September 2018, Green filed a complaint for a writ of mandamus
in the Fifth District Court of Appeals, arguing that his sentence is void because the
trial court failed to properly notify him of his postrelease control and improperly
sentenced him to a definite term of life in prison. In March 2019, the court of
appeals granted Judge Wetzel’s motion to dismiss the complaint under Civ.R.
12(B)(6), concluding that res judicata barred both arguments.
       {¶ 5} Green filed a timely notice of appeal.
                                Law and Analysis
       {¶ 6} As an initial matter, the court of appeals erred when it dismissed
Green’s mandamus complaint on res judicata grounds.              Res judicata is an
affirmative defense, Civ.R. 8(C), that “may not be raised by motion to dismiss
under Civ.R. 12(B).” State ex rel. Freeman v. Morris, 

, 579



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                                   January Term, 

 (1991). Nevertheless, we will not “ ‘reverse a correct judgment merely
because erroneous reasons were assigned as the basis thereof.’ ” Salloum v.
Falkowski, 

, 

, 

, ¶ 12, quoting
Joyce v. Gen. Motors Corp., 

, 

 (1990).
           {¶ 7} A court may 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,

, 

, 

. We apply a de novo
review to a dismissal under Civ.R. 12(B)(6). State ex rel. McKinney v. Schmenk,

, 

, 

.
           {¶ 8} To be entitled to a writ of mandamus, Green must show (1) a clear
legal right to the requested relief, (2) a clear legal duty on Judge Wetzel’s part to
provide it, and (3) the lack of an adequate remedy in the ordinary course of the law.
State ex rel. Waters v. Spaeth, 

, 

, 

,
¶ 6.
           {¶ 9} Green makes two arguments in support of his claim that his sentence
is void.
           {¶ 10} First, he argues that he is entitled to resentencing because a definite
term of life in prison is not a valid sentence for rape of a child under age 13 with
no associated specifications. But that claim is not cognizable in mandamus, since
“sentencing 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, 

, 

,

. Here, Green had an adequate remedy at law because he could
have challenged the sentence on direct appeal, State ex rel. Hunter v. Binette, 

, 

, 

, and he did present this




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                             SUPREME COURT OF OHIO




claim—albeit unsuccessfully—in a postconviction petition, see Jackson v.
Johnson, 

, 

, 

.
       {¶ 11} Second, Green contends that the trial court failed to impose
postrelease control for both counts and that the sentencing entry therefore was not
a final, appealable order. However, a trial court’s failure to include mandatory
postrelease control for both counts in a sentencing entry


       does not deprive the appellate court of jurisdiction to consider and
       correct the error.        In fact, R.C. 2953.08(G)(2)(b) expressly
       authorizes a reviewing court to modify or vacate any sentence that
       is “contrary to law.” Clearly, no such authority could exist if an
       unlawful sentence rendered a judgment nonfinal and unappealable.


State v. Fischer, 

, 

, 

, ¶ 39.
Accordingly, Green could have raised on direct appeal the trial court’s alleged
failure to notify him of postrelease control on one of his counts.
       {¶ 12} Because Green had an adequate remedy at law by way of appeal, we
affirm the dismissal of his mandamus action.
                                                                 Judgment affirmed.
       O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, DONNELLY,
and STEWART, JJ., concur.
                               _________________
       Shane L. Green, pro se.
       Charles T. McConville, Knox County Prosecuting Attorney, for appellee.
                               _________________




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