[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 

J. CHERRY 

 Relator 

 v. 

SUMMIT COUNTY COURT OF 

COMMON PLEAS JUDGE ALISON 

BREAUX 

 Respondent 

 C.A. No. 30076 

 

ORIGINAL ACTION IN 

MANDAMUS

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 
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, 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 
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., 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 
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, 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. 
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.