COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 75008 STATE OF OHIO, EX REL. : PETITION FOR WRIT OF WILLIAM GIVENS : MANDAMUS : Relator : MOTION NO. 99681 : vs. : JOURNAL ENTRY AND OPINION : COURT OF COMMON PLEAS : CUYAHOGA COUNTY, OHIO : : Respondent : : DATE OF JOURNALIZATION : OCTOBER 22, 1998 JUDGMENT : WRIT DENIED. APPEARANCES: For Relator : WILLIAM GIVENS, Pro Se No. 230-900 Ross Correctional Camp P. O. Box 7010, E-Dorm Chillicothe, Ohio 45601 For Respondent : STEPHANIE TUBBS-JONES Cuyahoga County Prosecutor RANDI MARIE OSTRY, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 PATRICIA A. BLACKMON, A.J.: Relator requests that this court compel respondent judge to -2- correct the sentence imposed in State v. Givens, Cuyahoga County Court of Common Pleas Case No. CR-256787. Relator complains that he received a sentence based on a driving-while-under-the-influence ( DWI ) specification. Relator argues that this sentence is illegal because the specification appearing on the indictment applies only to his co-defendant and not to relator. Relator also contends that the error in sentencing prevented his release in 1994. Respondent has filed a motion for summary judgment (Motion No. 98460) attached to which are copies of: the journal entries accepting relator's guilty plea and imposing sentence; the counts of the indictment. Respondent acknowledges that the indictment does not include a DWI specification. Respondent argues that the sentence is lawful and, therefore, relief in mandamus would be inappropriate. In State ex rel. Sampson v. Parrott (1998), 82 Ohio St.3d 92, 694 N.E.2d 463, the Supreme Court affirmed the dismissal by the court of appeals of an action in mandamus. The relator in Sampson had been the defendant in a criminal case and requested that the court of appeals compel the court of common pleas to vacate his sentence. First, [the relator] had adequate remedies at law by appeal or postconviction relief to review the claimed sentencing error. State ex rel. Massie v. Rogers (1997), 77 Ohio St.3d 448, 450, 674 N.E.2d 1383. Second, the fact that [the relator] has already invoked some of these alternate remedies to raise his claim of sentencing error does not entitle him to extraordinary relief in mandamus. Where a plain and adequate remedy at law has been unsuccessfully invoked, a writ of mandamus will not lie to relitigate the same issue. State ex rel. Tran v. -3- McGrath (1997), 78 Ohio St.3d 45, 47, 676 N.E.2d 108, 109. Finally, to the extent that [the relator's] complaint could be construed as a request for immediate release from prison, habeas corpus, rather than mandamus, is the proper action. State ex rel. Johnson v. Ohio Parole Bd. (1997), 80 Ohio St.3d 140, 684 N.E.2d 1227. Id. at 93. Relator acknowledges that he twice commenced delayed appeals (Case Nos. 74134 and 74529). In each of these appeals, relator filed a motion to file delayed appeal and to file without strict compliance to the rules. This court denied the motion in both appeals. Clearly, relator could have challenged the propriety of his sentence on direct appeal. See App.R. 5(A) which sets forth the procedure for filing a motion for delayed appeal. Furthermore, relator failed to comply with Loc. App. R. 8(B)(1) which requires that complaints in original actions be supported by an affidavit from the plaintiff or relator specifying the details of the claim. Accordingly, respondent's motion for summary judgment is granted. Relator to pay costs. Writ denied. JAMES M. PORTER, J., CONCURS. .