2000 OHIO 217 - Kirklin v. Enlow

[This opinion has been published in Ohio Official Reports at

89 Ohio St.3d 455

.]




               KIRKLIN, APPELLANT, v. ENLOW, JUDGE, APPELLEE.
                     [Cite as Kirklin v. Enlow,

2000-Ohio-217

.]
Prohibition—Writ sought to compel judge of common pleas court to vacate
        relator’s convictions and sentence—Dismissal of complaint by court of
        appeals affirmed.
       (No. 00-280—Submitted May 23, 2000—Decided August 16, 2000.)
      APPEAL from the Court of Appeals for Portage County, No. 99-P-0097.
                                  __________________
        {¶ 1} In April 1989, the Portage County Court of Common Pleas convicted
appellant, Delmar V. Kirklin, of aggravated murder, kidnapping, and various
specifications, and sentenced him to life in prison and additional prison terms to be
served consecutively to the life sentence. Judge George E. Martin presided over
Kirklin’s trial. Kirklin had pled guilty to the offenses and specifications after being
informed that he would receive a maximum term of life imprisonment for the
aggravated murder charge.
        {¶ 2} In October 1999, Kirklin filed a complaint in the Court of Appeals for
Portage County for a writ of prohibition to compel Judge Martin to vacate his
convictions and sentence. Kirklin claimed that Judge Martin violated R.C. 2945.06
by not trying the case before a three-judge panel. Appellee, Judge John A. Enlow,
the successor to Judge Martin, filed a motion to dismiss. The court of appeals
granted Judge Enlow’s motion and dismissed the complaint.
        {¶ 3} This cause is now before the court upon an appeal as of right.
                                  __________________
        Delmar V. Kirklin, pro se.
        Victor V. Vigluicci, Portage County Prosecuting Attorney, and Kelli K.
Norman, Assistant Prosecuting Attorney, for appellee.
                               SUPREME COURT OF OHIO




                                __________________
       Per Curiam.
       {¶ 4} Kirklin asserts that the court of appeals erred in dismissing his
prohibition action because the trial court lacked jurisdiction to convict and sentence
him after it failed to comply with R.C. 2945.06. For the following reasons,
Kirklin’s claim lacks merit.
       {¶ 5} An alleged violation of R.C. 2945.06 is not cognizable in an
extraordinary writ action and may be remedied only in a direct appeal from a
criminal conviction. State ex rel. Collins v. Leonard (1997),

80 Ohio St.3d 477, 478

687 N.E.2d 443

, 443-444; Jackson v. Rose (1997),

79 Ohio St.3d 51

679 N.E.2d 684

; State v. Pless (1996),

74 Ohio St.3d 333

658 N.E.2d 766

, paragraph
two of the syllabus.
       {¶ 6} In addition, habeas corpus, rather than prohibition, is the appropriate
remedy for persons claiming entitlement to release from prison. State ex rel.
Jackson v. Callahan (1999),

86 Ohio St.3d 73

711 N.E.2d 686

. Consequently,
Kirklin is not entitled to a writ of prohibition to achieve the same result.
       {¶ 7} Based on the foregoing, the court of appeals did not err in dismissing
Kirklin’s prohibition complaint. Accordingly, we affirm the judgment of the court
of appeals.
                                                                  Judgment affirmed.
       MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
                                __________________




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