[Cite as State ex rel. Cherry v. Breaux,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO EX REL. ELLIOTT C.A. No. 30076 J. CHERRY

Relator

v.

SUMMIT COUNTY COURT OF ORIGINAL ACTION IN COMMON PLEAS JUDGE ALISON MANDAMUS BREAUX

Respondent

Dated: November 3, 2021

PER CURIAM.

{¶1} Relator, Elliott Cherry, has petitioned this Court for a writ of mandamus to

compel Respondent, Judge Alison Breaux, to vacate judgment she previously entered

after holding a hearing. Respondent has moved to dismiss pursuant to Civ.R. 12(B)(6).

Mr. Cherry replied to the motion to dismiss. For the following reasons, this Court grants

the motion to dismiss.

{¶2} When this Court reviews a motion to dismiss under Civ.R. 12(B)(6), we

must generally presume that all of the factual allegations in the petition are true and make

all reasonable inferences in favor of the nonmoving party. State ex rel. Seikbert v.

Wilkinson,

(1994). A petition can only be dismissed when, having C.A. No. 30076 Page 2 of 5

viewed the complaint in this way, it appears beyond doubt that the relator can prove no

set of facts that would entitle him to the relief requested. Goudlock v. Voorhies,

,

, ¶ 7.

Mr. Cherry’s Complaint

{¶3} Mr. Cherry filed a brief complaint and long memorandum in support of the

complaint. The latter document covers much of the litigation history since Mr. Cherry

was convicted in 2001 of child endangering and murder. According to the complaint, at

the time he was originally sentenced, the trial court judge determined the offenses were

allied offenses of similar import and the judge-imposed sentences on both counts.

{¶4} Many years later, Mr. Cherry moved to vacate his sentences. After the trial

court denied the motion, he appealed to this Court. Upon review, this Court sustained

Mr. Cherry’s assignment of error and remanded for the trial court to hold a new sentencing

hearing at which the state must elect which offense it would proceed to sentencing on.

{¶5} After the remand, the trial court held a hearing. Neither Mr. Cherry nor his

retained attorney were present at the hearing, but an attorney was present on behalf of Mr.

Cherry. The State elected the offense on which it would proceed for sentencing and

argued that the trial court had no discretion on what sentence must be imposed. The trial

court vacated the sentence for child endangering and concluded the sentence for murder

would stand.

{¶6} The memorandum includes a lengthy discussion of the mandate rule, but it

is entirely a legal argument rather than setting forth any additional facts in support of the C.A. No. 30076 Page 3 of 5

complaint. The purpose of the discussion is to support Mr. Cherry’s contention that the

trial court failed to follow this Court’s mandate.

{¶7} In short, Mr. Cherry’s complaint alleges he was improperly sentenced, this

Court agreed in his appeal, and this Court ordered a new hearing. The complaint further

alleges that the trial court held a hearing, but not the kind of hearing Mr. Cherry thought

was appropriate, and the trial court entered judgment at the conclusion of the hearing.

Writ of Mandamus

{¶8} “For a writ of mandamus to issue, a relator must demonstrate that (1) the

relator has a clear legal right to the relief prayed for, (2) respondent is under a

corresponding clear legal duty to perform the requested acts, and (3) relator has no plain

and adequate legal remedy.” State ex rel. Serv. Emp. Internatl. Union, Dist. 925 v. State

Emp. Relations Bd.,

(1998). Relator must demonstrate all three

elements for this Court to grant the writ of mandamus.

{¶9} Dismissal of a petition is appropriate if the claimant obviously cannot

prevail on the facts alleged in it. See, e.g., State ex rel. Duran v. Kelsey,

,

, ¶ 7. Mr. Cherry is not entitled to the writ of mandamus based on

the facts alleged in the complaint.

{¶10} Mr. Cherry contends that mandamus is the appropriate remedy to require a

trial court to comply with an appellate court’s mandate, and we agree with that

proposition. Mr. Cherry has not demonstrated, however, that the trial court did not

comply with this Court’s mandate. After this Court decided his appeal, the trial court C.A. No. 30076 Page 4 of 5

held a hearing at which it addressed Mr. Cherry’s sentence. The trial court resolved the

sentencing issue which Mr. Cherry had challenged on appeal.

{¶11} Mr. Cherry has tried to argue that the trial court disregarded this Court’s

mandate, which he does to try to make his argument appropriate for the writ of mandamus

to provide a remedy. His true complaint, however, is that the trial court erred in the way

it conducted the hearing. There is no dispute that the trial court conducted a hearing; Mr.

Cherry acknowledges this in his complaint. Whether it conducted the hearing

appropriately or not, it held the hearing. Accordingly, Mr. Cherry cannot show either of

the first two prongs to be entitled to a writ of mandamus: respondent already held a

hearing, so he has no clear legal right to a hearing and respondent has no clear legal duty

to hold a hearing.

{¶12} With respect to the allegations of error in holding the hearing, mandamus

will not lie because Mr. Cherry had an adequate legal remedy by way of direct appeal

from the trial court’s judgment. It is well-established that mandamus cannot be used as a

substitute for appeal to challenge a trial court’s alleged legal errors. State ex rel. Richfield

v. Laria,

,

. Appeal from an adverse judgment

constitutes an adequate remedy in the ordinary course of law. State ex rel. Caskey v.

Gano,

,

. To the extent the trial court committed

any error, appeal provided an adequate remedy to assert those claimed errors, and

mandamus is not an appropriate remedy. See, e.g., State ex rel. Plant v. Cosgrove,

,

, ¶ 5. C.A. No. 30076 Page 5 of 5

{¶13} The motion to dismiss noted that Mr. Cherry had, in fact, appealed the trial

court’s decision and that this Court had affirmed. In his response, Mr. Cherry argued that

this Court could not consider this in making a decision because it was outside the

complaint. We have resolved this matter without considering Mr. Cherry’s appeal, so we

need not address that issue.

Conclusion

{¶14} Because Mr. Cherry is not entitled to a writ of mandamus, the motion to

dismiss is granted, and this case is dismissed. All outstanding motions are denied. Costs

are taxed to Mr. Cherry.

{¶15} The clerk of courts is hereby directed to serve upon all parties not in default

notice of this judgment and its date of entry upon the journal. See Civ.R. 58(B).

DONNA J. CARR FOR THE COURT

TEODOSIO, J. SUTTON, J. CONCUR.

APPEARANCES:

ELLIOT J. CHERRY, Pro se, Relator.

SHERRI BEVAN WALSH, Prosecuting Attorney, and JOHN GALONSKI, Assistant Prosecuting Attorney, for Respondent.