Opinion
No. 79-1242
Decided April 30, 1980.
Mandamus — To compel imposition of mandatory sentence — Complaint dismissed, when — Adequate appeal remedy available.
APPEAL from the Court of Appeals for Cuyahoga County.
On September 23, 1978, Jacqueline Blevins was arrested and charged with soliciting in violation of city of Cleveland Ordinance No. 619.09. Section 619.09(b)(1) requires that, upon conviction of a first offense, "[a]t least 10 days' imprisonment and a fine of $200.00 are mandatory***."
Blevins' case was assigned to Judge Salvatore R. Calandra (hereinafter appellee) of the Cleveland Municipal Court.
Blevins entered a plea of not guilty and filed a motion to dismiss. The city of Cleveland (hereinafter appellant) filed a memorandum in opposition to Blevins' motion and demanded that the mandatory ten-days' imprisonment be imposed upon conviction. Thereafter, appellee held the mandatory sentence provision, subsection (b)(1), to be unconstitutional as constituting cruel and unusual punishment. Thereupon, Blevins withdrew her plea of not guilty and entered a plea of no contest.
On November 22, 1979, Blevins was found guilty of violating Section 619.09 as a first offender, and, upon consideration of the probation report, was sentenced to one-year's probation, 60 days and costs, the days and costs suspended. Appellee thereby failed to impose the mandatory ten-days' imprisonment.
Appellant then filed a complaint in mandamus in the Court of Appeals, seeking a writ ordering appellee to impose the mandatory ten-days' imprisonment.
On August 2, 1979, the Court of Appeals dismissed the complaint, declaring that appellant had an adequate remedy at law and that failure to sentence according to law that was declared unconstitutional was a discretionary matter and not a legal duty and, therefore, not within the scope of mandamus.
The cause is now before this court on appeal as a matter of right.
Ms. Almeta A. Johnson, chief police prosecutor, and Mr. Jeffrey M. Bain, for appellant.
Messrs. Stege Delbaum and Mr. Charles M. Delbaum, for appellee.
Appellant, in its first proposition of law, asserts that the issuance of a writ of mandamus is proper in the instant cause, since an appeal to the Court of Appeals does not provide for a "plain and adequate" remedy in the ordinary course of the law as required by R.C. 2731.05.
We find appellant's assertion unpersuasive and hold that appellant had a plain and adequate remedy.
Appellant claims that the remedy of appeal is not plain because it is extremely doubtful whether an appeal is available to the prosecution in a case of failure to impose a mandatory sentence.
R.C. 2945.67(A) reads, in pertinent part, as follows:
"A prosecuting attorney, village solicitor, [or] city director of law***may appeal by leave of the court to which the appeal is taken any other decision, except the final verdict, of the trial court in a criminal case***." (Emphasis added.)
In the cause sub judice, it is appellee's failure to impose a mandatory prison sentence, rather than the determination of guilt, which would be questioned upon review. R.C. 2945.67(A), expressly allowing appeals of any decision except a "final verdict," would not prevent appellant from appealing the sentence imposed upon the defenant herein.
The discretionary right of appeal by the prosecution would not amount to double jeopardy. The United States Supreme Court has determined that the correction of an invalid sentence does not constitute double jeopardy, and that a prisoner whose guilt is established by jury verdict may not escape punishment because the court committed an error in passing sentence. Bozza v. United States (1947), 330 U.S. 160, and In re Bonner (1894), 151 U.S. 242.
Appellant failed to pursue its discretionary right of appeal, which is a sufficiently plain and adequate remedy in the ordinary course of the law. Until leave to appeal is sought and denied, a remedy in the ordinary course of the law exists which is adequate to afford the review the appellant herein seeks.
In its second proposition of law, appellant asserts that the failure to impose the mandatory prison sentence is a breach of a legal duty by appellee and thus supports the issuance of a writ of mandamus. Appellant relies on State, ex rel. Moraites, v. Gorman (1975), 42 Ohio St.2d 175, wherein the trial court simply ignored the mandatory prison sentence. The case at bar is quite different, in that appellee, rather than ignoring the mandatory prison sentence, found such sentence unconstitutional. As noted herein, appellant has the availability to raise the issue of the constitutionality of the mandatory sentence on appeal by leave of court.
Furthermore, just recently, in State, ex rel. Riverside Methodist Hosp., v. Gillie (1979), 58 Ohio St.2d 49, 51, this court stated that:
"`Extraordinary remedies***[such as] mandamus***are available only when usual forms of procedure are incapable of affording relief. They may not be employed before trial on the merits, or as a substitute for an appeal for the purpose of reviewing mere errors, or irregularities in the proceedings of a court***, or as a means of testing the constitutionality of a statute***where the court***had jurisdiction to determine the question of constitutionality.' State, ex rel. Woodbury, v. Spitler (1973), 34 Ohio St.2d 134, 137, 296 N.E.2d 526. See, also, State, ex rel. Wargo, v. Price (1978), 56 Ohio St.2d 65, 381 N.E.2d 943; State, ex rel. Marshall, v. Keller (1968), 15 Ohio St.2d 203, 239 N.E.2d 85."
We, therefore, hold that the complaint in mandamus was properly dismissed, and the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY, LOCHER and Holmes, JJ., concur.
In view of this decision and State, ex rel. Riverside Methodist Hosp., v. Gillie (1979), 58 Ohio St.2d 49, 387 N.E.2d 1378, it appears that State, ex rel. Brown, v. Galbraith (1977), 52 Ohio St.2d 158, 370 N.E.2d 477, has been impliedly overruled.