COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72357 : ORIGINAL ACTION STATE OF OHIO EX REL. : WILLARD NASH : : JOURNAL ENTRY Relator : : and v. : : OPINION JUDGE TIMOTHY McMONAGLE : : : Respondent : : : DATE OF ANNOUNCEMENT OF DECISION: JULY 10, 1997 CHARACTER OF PROCEEDING: WRIT OF MANDAMUS JUDGMENT: WRIT DISMISSED. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Relator: For Respondent: WILLARD NASH, pro se STEPHANIE TUBBS JONES, ESQ. #A303-247 Cuyahoga County Prosecutor 2075 S. Avon Belden Road Grafton OH 44044 DIANE SMILANICK, ESQ. Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - KARPINSKI, P.J.: Relator avers that he was convicted in State v. Nash, Cuyahoga County Court of Common Pleas Case No. CR-309943, of having a weapon while under disability in violation of R.C. 2923.13. R.C. 2923.13(A)(2) prohibits a person who had previously been convicted of a felony from carrying or using a firearm or dangerous ordnance. On October 3, 1972, relator was convicted of armed robbery in State v. Nash, Cuyahoga County Court of Common Pleas Case No. CR-001392. Relator contends, however, that use of his 1972 conviction as a basis for finding him guilty under R.C. 2923.13 violates the prohibitions against ex post facto laws in Section 10, Article I, United States Constitution and against retroactive laws in Section 28, Article II, Ohio Constitution. Relator notes that the effective date of R.C. 2923.13 was January 1, 1974--after his conviction in Case No. CR-001392. As a consequence, relator requests that this court compel respondent court to vacate his conviction and sentence. Respondent filed a motion for summary judgment (Motion No. 83601). Respondent sets forth the general standards for determining actions in mandamus but does not sufficiently address the circumstances present in this action. As a consequence, we deny the motion for summary judgment. Nevertheless, for the reasons stated below, we dismiss this action sua sponte. - 3 - The fundamental criteria for issuing a writ of mandamus are well-established: In order to be entitled to a writ of mandamus, relator must show (1) that he has a clear legal right to the relief prayed for, (2) that respondents are under a clear legal duty to perform the acts, and (3) that relator has no plain and adequate remedy in the ordinary course of the law. State, ex rel. National City Bank, v. Bd. of Education (1977), 52 Ohio St. 2d 81. State ex rel. Harris v. Rhodes (1978), 54 Ohio St. 2d 41, 42, 374 N.E. 2d 641. Of course, all three of these requirements must be met in order for mandamus to lie. "[T]he constitutionality of a statute may, in certain instances, be challenged by mandamus." State ex rel. Purdy v. Clermont Cty. Bd. of Elections (1997), 77 Ohio St.3d 338, 341, 673 N.E.2d 1351 (citations deleted). In Purdy, two county boards of elections had sustained protests to the candidacy of two candidates for state representative. The relators challenged the constitutionality of the statute upon which the boards based their determination. The Supreme Court determined that declaratory judgment would not be an adequate remedy and then considered the constitutional challenges. In this case, however, relator does have an adequate remedy in the ordinary course of the law. R.C. 2953.02 authorizes the appeal of a conviction to the court of appeals. Extraordinary remedies, i.e., mandamus, prohibition and habeas corpus, are available only when usual forms of procedure are incapable of affording relief. They may not be employed before trial on the merits, as a substitute for an appeal for the purpose of reviewing mere errors, or irregularities in the proceedings of a court having proper jurisdiction, or as a means for - 4 - testing the constitutionality of a statute in favor of one who has been convicted or who has charges pending against him where the court wherein the criminal cause is pending or conviction was obtained 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, certiorari denied (1974), 415 U.S. 913, 94 S.Ct. 1407, 39 L.Ed.2d 467. Clearly, the court of common pleas has the authority to determine the constitutionality of R.C. 2923.13. Likewise, review of a determination of the constitutionality of R.C. 2923.13 is an appropriate subject for an appeal. See, e.g., State v. Varney (1991), 62 Ohio St.3d 274, 275, 581 N.E.2d 557; State v. Fant (1977), 53 Ohio App.2d 87, 90, 371 N.E.2d 588. Where a constitutional process of appeal has been legislatively provided, the sole fact that pursuing such process would encompass more delay and inconvenience than seeking a writ of mandamus is insufficient to prevent the process from constituting a plain and adequate remedy in the ordinary course of the law. (State, ex rel. Kronenberger-Fodor Co., v. Parma, 34 Ohio St. 2d 222 [63 O.O.2d 362], syllabus approved and followed.) State ex rel. Willis v. Sheboy (1983), 6 Ohio St. 3d 167, 451 N.E.2d 1200, paragraph one of the syllabus. Relator "has an adequate remedy by properly filing a motion for delayed appeal pursuant to Appellate Rule 5. Furthermore, such an action would allow this court to review this matter on the entire record." State ex rel. Robinson v. O'Donnell (Jan. 22, 1997), Cuyahoga App. No. 62483, unreported, at 4. As a consequence, relator's complaint fails to state a claim in mandamus. - 5 - Additionally, we note that relator has not responded to respondent's motion for summary judgment. As a consequence, this is an appropriate case for dismissal for lack of prosecution. See, e.g., State ex rel. Edwards v. Curran (June 5, 1997), Cuyahoga App. No. 71197, unreported, at 2-4; State ex rel. Edwards v. Curran (June 5, 1997), Cuyahoga App. No. 71226, unreported, at 5. We must emphasize, however, that our holding is not a decision on the merits of relator's argument regarding the constitutionality of R.C. 2923.13 as applied in CR-309943. Compare, this court's decision in State ex rel. Corrigan v. Barnes (1982), 3 Ohio App.3d 40, 443 N.E.2d 1034, [complaint in quo warranto dismissed because the 1974 amendment to R.C. 2961.01--which prohibits a person from holding public office because of a felony conviction in federal court before the effective date of the amendment--is an ex post facto law]. Rather, we hold that an action in mandamus is not the appropriate proceeding for deciding whether R.C. 2923.13 is unconstitutional. Accordingly, we dismiss the complaint in mandamus sua sponte. Relator to pay costs. Writ dismissed. DYKE, J., and - 6 - PATTON, J., CONCUR. .