[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State 

ex rel. Boler v. McCarthy, Slip Opinion No. 2023-Ohio-500.]

NOTICE

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published.

SLIP OPINION NO. 2023-OHIO-500

THE STATE EX REL. BOLER, APPELLANT, v. MCCARTHY, JUDGE, APPELLEE.

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as State ex rel. Boler v. McCarthy, Slip Opinion No. 

2023-Ohio-500.]

Prohibition and mandamus—Appellant had an adequate remedy in ordinary course 

of law in that he could have asserted claim in direct appeal—Court of 

appeals’ dismissal of complaint affirmed.

(No. 2022-1157—Submitted January 10, 2023—Decided February 23, 2023.)

APPEAL from the Court of Appeals for Athens County, No. 22CA12.

__________________

Per Curiam.

{¶ 1} Appellant, Phillip Dionte Boler, filed a complaint for writs of 

prohibition and mandamus in the court of appeals seeking the vacatur of his 

criminal convictions. The court of appeals dismissed the complaint, concluding 

that Boler’s claim is barred under the doctrine of res judicata and that Boler had an 

adequate remedy in the ordinary course of the law by way of a direct appeal of his 
SUPREME COURT OF OHIO

2

convictions. Boler appeals the dismissal of his complaint. Because Boler had an

adequate remedy in the ordinary course of the law, we affirm.

Background

{¶ 2} In 2009, a jury found Boler guilty of aggravated robbery and complicity 

to commit murder, both with firearm specifications. He was sentenced to an 

aggregate prison term of 28 years to life.

{¶ 3} At issue here is Boler’s complaint for writs of prohibition and 

mandamus, which he filed against appellee, Athens County Court of Common 

Pleas Judge George P. McCarthy, in the Fourth District Court of Appeals in July 

2022. In his complaint, Boler argued that his convictions must be vacated because 

the trial court lacked jurisdiction to, in his view, misconstrue and misapply Ohio’s 

aggravated-robbery statute, R.C. 2911.01. The court of appeals granted Judge 

McCarthy’s motion to dismiss under Civ.R. 12(B)(6), concluding that Boler’s 

claim was barred under the doctrine of res judicata. The court also concluded that 

Boler had an adequate remedy in the ordinary course of the law because he could 

have raised his claim that the trial court misapplied R.C. 2911.01 when he directly 

appealed his convictions.

{¶ 4} Boler has appealed to this court as of right.

Analysis

{¶ 5} To dismiss a claim pursuant to Civ.R. 12(B)(6), it must appear beyond 

doubt from the complaint that the relator can prove no set of facts warranting relief, 

after all factual allegations are presumed true and all reasonable inferences are 

made in his favor. State ex rel. Natl. Elec. Contrs. Assn., Ohio Conference v. Ohio 

Bur. of Emp. Servs., 83 Ohio St.3d 179, 181, 699 N.E.2d 64 (1998). We review de 

novo the court of appeals’ dismissal of Boler’s complaint. State ex rel. Brown v. 

Nusbaum, 152 Ohio St.3d 284, 2017-Ohio-9141, 95 N.E.3d 365, ¶ 10.

{¶ 6} To state a claim for a writ of prohibition, Boler must plead facts 

showing that the trial court exercised judicial power without authority and that denial 
January Term, 2023

3

of the writ would result in injury for which he lacks an adequate remedy in the 

ordinary course of the law. State ex rel. Elder v. Camplese, 144 Ohio St.3d 89, 2015-

Ohio-3628, 40 N.E.3d 1138, ¶ 13. To state a claim for a writ of mandamus, Boler 

must plead facts establishing that he has a clear legal right to the relief he requests, 

that Judge McCarthy has a clear legal duty to provide that relief, and that there is 

no adequate remedy in the ordinary course of the law. State ex rel. Love v. 

O’Donnell, 150 Ohio St.3d 378, 2017-Ohio-5659, 81 N.E.3d 1250, ¶ 3.

{¶ 7} The court of appeals erred in dismissing Boler’s complaint on res 

judicata grounds. “[R]es judicata is an affirmative defense that is not a proper basis 

for dismissal for failure to state a claim upon which relief can be granted.” State

ex rel. Newell v. Cuyahoga Cty. Court of Common Pleas, 165 Ohio St.3d 341, 2021-

Ohio-3662, 179 N.E.3d 84, ¶ 10.

{¶ 8} Nevertheless, Boler did have an adequate remedy at law. In fact, 

Boler does not dispute that he could have raised his claim that the trial court 

misapplied R.C. 2911.01 when he directly appealed his convictions. Therefore, the 

court of appeals correctly dismissed Boler’s complaint.

{¶ 9} Boler couches his claim in jurisdictional terms, arguing that the trial 

court patently and unambiguously lacked jurisdiction to misapply R.C. 2911.01. It 

is true that a relator need not establish the lack of an adequate remedy if there was 

a patent and unambiguous lack of jurisdiction. See State ex rel. Dannaher v.

Crawford, 78 Ohio St.3d 391, 393, 678 N.E.2d 549 (1997) (“where a lower court 

patently and unambiguously lacks jurisdiction over the cause, prohibition and

mandamus will issue to * * * correct the results of prior jurisdictionally 

unauthorized actions, notwithstanding the availability of appeal”). But here, the 

trial court plainly had subject-matter jurisdiction over Boler’s criminal case under 

R.C. 2931.03, which gives common pleas courts subject-matter jurisdiction over 

felony cases. Boler has not identified any statute that removed the trial court’s 

jurisdiction. See Ohio High School Athletic Assn. v. Ruehlman, 157 Ohio St.3d 296, 
SUPREME COURT OF OHIO

4

2019-Ohio-2845, 136 N.E.3d 436, ¶ 9 (“when we have found that a court of common 

pleas patently and unambiguously lacks jurisdiction, it is almost always because a 

statute explicitly removed that jurisdiction”). Boler therefore cannot avoid the lackof-adequate-remedy requirement.

Conclusion

{¶ 10} Because Boler had an adequate remedy in the ordinary course of the 

law, we affirm the court of appeals’ judgment.

Judgment affirmed.

KENNEDY, C.J., and FISCHER, DEWINE, DONNELLY, STEWART, BRUNNER, 

and DETERS, JJ., concur.

_________________

Phillip Dionte Boler, pro se.

George P. McCarthy, Judge, pro se.

_________________