State ex rel. Cherry v. Breaux

[Cite as State ex rel. Cherry v. Breaux, 2021-Ohio-3909.]
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, 69 Ohio St.3d 489, 490 (1994). A petition can only be dismissed when, having
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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, 119 Ohio
St.3d 389, 2008-Ohio-4787, ¶ 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
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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., 81 Ohio St.3d 173, 176 (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, 106 Ohio St.3d
58, 2005-Ohio-3674, ¶ 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
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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, 138 Ohio St.3d 168, 2014-Ohio-243, ¶ 11. Appeal from an adverse judgment
constitutes an adequate remedy in the ordinary course of law. State ex rel. Caskey v.
Gano, 135 Ohio St.3d 175, 2013-Ohio-71, ¶ 5. 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, 119
Ohio St.3d 264, 2008-Ohio-3838, ¶ 5.
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{¶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.