DUNNING v. STATE (2005)

In 1999, the Cuyahoga County Court of Common Pleas convicted appellant, Daniel Dunning, of involuntary manslaughter, felonious assault, and a firearm specification and sentenced him to an aggregate prison term of 13 years.

{¶ 2} In July 2004, Dunning filed a petition in the Court of Appeals for Cuyahoga County for a writ of mandamus to compel appellee, the state of Ohio, to resentence him in accordance with our decision in State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, 793 N.E.2d 473, paragraphs one and two of the syllabus.   The state moved to dismiss the petition.

 {¶ 3} On October 14, 2004, the court of appeals granted the state's motion and dismissed the petition.

{¶ 4} We affirm the judgment of the court of appeals.   Dunning “is not entitled to the retroactive application of Comer to his convictions, which had become final before Comer was decided.”  State ex rel. Maxwell v. Spicer, 104 Ohio St.3d 344, 2004-Ohio-6594, 819 N.E.2d 702, ¶ 5;  Ali v. State, 104 Ohio St.3d 328, 2004-Ohio-6592, 819 N.E.2d 687, ¶ 6. Therefore, the court of appeals properly dismissed Dunning's mandamus petition.

Judgment affirmed.

PER CURIAM.

MOYER, C.J., RESNICK, PFEIFER, LUNDBERG STRATTON, O'CONNOR, O'DONNELL and LANZINGER, JJ., concur.