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

ex rel. Boyd v. Tone, Slip Opinion No. 2023-Ohio-3832.]

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-3832

THE STATE EX REL. BOYD, APPELLANT, v. TONE, JUDGE, APPELLEE.

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

may be cited as State ex rel. Boyd v. Tone, Slip Opinion No. 2023-Ohio-3832.]

Mandamus—Prohibition—Appellant could have raised any claims regarding 

denial of his right to counsel through direct appeal from his convictions, 

which constitutes an adequate remedy in ordinary course of law sufficient 

to defeat a request for a postconviction extraordinary writ—Court of 

appeals’ dismissal of complaints affirmed.

(Nos. 2023-0249 and 2023-0375—Submitted July 18, 2023—Decided October 

25, 2023.)

APPEALS from the Court of Appeals for Erie County,

Nos. E-23-001, 2023-Ohio-323, and E-22-052.

__________________

Per Curiam.

{¶ 1} Appellant, Deonta Boyd, appeals the dismissal of two complaints he 

filed in the Sixth District Court of Appeals. In case No. 2023-0249, Boyd filed a 
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2

complaint for a writ of mandamus seeking to compel appellee, Erie County 

Common Pleas Court Judge Tygh M. Tone (“the trial court”), to vacate his criminal 

convictions and sentence. In case No. 2023-0375, Boyd filed a separate complaint 

for a writ of prohibition against the trial court raising the same underlying issues. 

We affirm both dismissals.

I. FACTUAL AND PROCEDURAL BACKGROUND

{¶ 2} Boyd is currently incarcerated at the Richland Correctional 

Institution. In 2006, Boyd pleaded guilty to aggravated murder with a firearm 

specification, felonious assault, and aggravated burglary in the Erie County Court 

of Common Pleas. The trial court sentenced him to an aggregate sentence of life 

imprisonment with eligibility for parole after 41 years. The trial court informed 

him of his right to appeal at the sentencing hearing and in its sentencing entries.

{¶ 3} Boyd originally retained attorney Denise Demmitt to represent him in 

his criminal cases. Approximately one year before Boyd pleaded guilty, Demmitt 

filed a motion to withdraw as Boyd’s counsel due to a conflict of interest. Demmitt 

was also representing Boyd’s stepfather, Sylvester Ford, in a criminal case in which 

Ford was a defendant. Demmitt realized that Ford was a material witness for the 

prosecution in Boyd’s case and that the state had offered Ford a reduced sentence

in exchange for his cooperation in its case against Boyd. The trial court held a 

hearing on the motion to withdraw. Demmitt stated at the hearing that she was 

withdrawing only because of the conflict; although Boyd was indigent, she would 

have represented him pro bono. The trial court granted Demmitt’s motion to 

withdraw and on the same day appointed attorneys Robert Dixon and David 

Doughten to represent Boyd. Dixon and Doughten remained Boyd’s counsel 

through his guilty pleas and sentencing. There is no indication in the record that 

Boyd ever objected to Dixon and Doughten’s appointment.

{¶ 4} In 2023, Boyd filed a complaint for a writ of mandamus in the Sixth 

District (case No. 2023-0249). Boyd claims that the trial court violated his rights 
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3

under the Sixth and Fourteenth Amendments to the United States Constitution and 

Article I, Section 10 of the Ohio Constitution by removing his counsel of choice. 

Boyd argues that this alleged violation constitutes structural error and that he is 

entitled to reversal of his convictions and sentence. He also contends that by 

allegedly violating his right to counsel, the trial court lacked jurisdiction to accept 

his pleas and sentence him and his convictions and sentence are therefore void. 

Boyd seeks a writ ordering the trial court to vacate his convictions and sentence. 

In addition—alleging that the trial court never ruled on Demmitt’s motion to 

withdraw—he requests that the trial court be ordered “to conduct a proper review 

of the motion to withdraw as counsel.”

{¶ 5} The Sixth District denied the writ and sua sponte dismissed the action. 

The court held that Boyd could have raised issues related to the withdrawal of his 

counsel on direct appeal and that any issues concerning the withdrawal are therefore

barred by res judicata. In addition, noting that the trial court did rule on the motion 

to withdraw as counsel, the Sixth District held that Boyd is not entitled to a writ 

ordering the trial court to do so.

{¶ 6} Boyd also filed a complaint for a writ of prohibition in the Sixth 

District (case No. 2023-0375). As in his mandamus action, Boyd claims that the 

trial court violated his rights under the Sixth and Fourteenth Amendments to the 

United States Constitution and Article 1, Section 10 of the Ohio Constitution by 

removing his counsel of choice. He argues that because of this alleged violation, 

the trial court lacked jurisdiction to accept his pleas and sentence him and that his 

convictions and sentence are therefore void. Accordingly, Boyd seeks a writ 

vacating his convictions and sentence.

{¶ 7} The Sixth District sua sponte dismissed the prohibition complaint, 

noting that it is “virtually identical” to Boyd’s mandamus complaint. The court

held that Boyd could have raised issues related to the withdrawal of his counsel on 
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direct appeal and that any issues concerning the withdrawal are therefore barred by 

res judicata.

{¶ 8} Boyd has appealed the dismissal of both of his complaints.

II. LEGAL ANALYSIS

A. Standard of review and mandamus and prohibition requirements

{¶ 9} A court of appeals may dismiss a complaint sua sponte “if the 

complaint ‘is frivolous or the claimant obviously cannot prevail on the facts alleged 

in the complaint.’ ” State ex rel. Kerr v. Pollex, 159 Ohio St.3d 317, 2020-Ohio411, 150 N.E.3d 907, ¶ 5, quoting State ex rel. Scott v. Cleveland, 112 Ohio St.3d 

324, 2006-Ohio-6573, 859 N.E.2d 923, ¶ 14. “Such a dismissal is appropriate only 

if, after presuming the truth of all material factual allegations of the petition and 

making all reasonable inferences in the claimant’s favor, it appears beyond doubt 

that the claimant can prove no set of facts entitling him to the requested 

extraordinary relief * * *.” Id. When reviewing a sua sponte dismissal without 

notice, this court determines whether the appellant’s claims are frivolous or 

obviously meritless. State ex rel. Mayer v. Henson, 97 Ohio St.3d 276, 2002-Ohio6323, 779 N.E.2d 223, ¶ 11.

{¶ 10} To be entitled to a writ of mandamus, Boyd must show (1) a clear 

legal right to the requested relief, (2) a clear legal duty on the part of the respondent 

to provide it, and (3) the lack of an adequate remedy in the ordinary course of the 

law. State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 

452, ¶ 6. However, he need not show the absence of an adequate legal remedy if 

the trial court patently and unambiguously lacked jurisdiction. State ex rel. Davis 

v. Janas, 160 Ohio St.3d 187, 2020-Ohio-1462, 155 N.E.3d 822, ¶ 10.

{¶ 11} To be entitled to a writ of prohibition, Boyd must show that (1) the 

trial court has exercised judicial power, (2) the exercise of that power was

unauthorized by law, and (3) denying the writ would result in injury for which no 

other adequate remedy exists in the ordinary course of the law. State ex rel. 
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5

Nyamusevya v. Hawkins, 165 Ohio St.3d 22, 2021-Ohio-1122, 175 N.E.3d 495, 

¶ 14. If the trial court patently and unambiguously lacked subject-matter 

jurisdiction, Boyd need not establish the lack of an adequate legal remedy. Schlegel 

v. Sweeney, 171 Ohio St.3d 1, 2022-Ohio-3841, 215 N.E.3d 451, ¶ 6.

B. Boyd had an adequate remedy in the ordinary course of the law through direct 

appeal to challenge any violation of his right to counsel

{¶ 12} The Sixth and Fourteenth Amendments to the United States 

Constitution guarantee a criminal defendant the right to counsel. See generally 

State v. Schleiger, 141 Ohio St.3d 67, 2014-Ohio-3970, 21 N.E.3d 1033, ¶ 13-14; 

see also Ohio Constitution, Article I, Section 10. An “element of this right is the 

right of a defendant who does not require appointed counsel to choose who will 

represent him.” United States v. Gonzalez-Lopez, 548 U.S. 140, 144, 126 S.Ct. 

2557, 165 L.Ed.2d 409 (2006). A court commits structural error when it wrongfully 

denies a defendant his counsel of choice, and such a denial therefore is not subject 

to harmless-error review. Id. at 150. Boyd claims in his complaints that the trial 

court’s removal of Demmitt as his attorney violated his right to counsel of his 

choice.

{¶ 13} The Sixth District correctly dismissed the actions. Boyd could have 

raised any claims regarding the denial of his right to counsel through direct appeal 

from his convictions, which constitutes an adequate remedy in the ordinary course 

of the law sufficient to defeat a request for a postconviction extraordinary writ. See 

State ex rel. Rackley v. Sloan, 150 Ohio St.3d 11, 2016-Ohio-3416, 78 N.E.3d 819, 

¶ 8, 10 (habeas corpus proceeding); see also Casey v. Hudson, 113 Ohio St.3d 166, 

2007-Ohio-1257, 863 N.E.2d 171, ¶ 3 (same).

{¶ 14} Boyd argues that the Sixth District erred because at the time he was 

convicted in 2006, he could not have immediately challenged the removal of his 

counsel of choice. See State v. Chambliss, 128 Ohio St.3d 507, 2011-Ohio-1785, 

947 N.E.2d 651, syllabus (holding that the pretrial removal of a defendant’s 
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retained counsel of choice is a final, appealable order). Boyd’s reliance on the 

change in law announced in Chambliss lacks merit. This court decided in

Chambliss only that a trial court’s denial of a defendant’s counsel of choice is 

immediately appealable. At the time of his conviction, Boyd had the right to 

challenge on direct appeal the trial court’s decision to grant Demmitt’s motion to 

withdraw as his counsel. See Casey at ¶ 3.

{¶ 15} Boyd also argues that the trial court patently and unambiguously 

lacked jurisdiction to convict and sentence him and that he therefore need not show 

the lack of an adequate remedy in the ordinary course of the law. In support of this 

argument, Boyd relies on State ex rel. Ogle v. Hocking Cty. Common Pleas Court, 

167 Ohio St.3d 181, 2021-Ohio-4453, 190 N.E.3d 594 (“Ogle I”). We held in Ogle

I that a defendant had stated a colorable claim that her sentencing was void because 

the trial-court judge arguably prohibited her from obtaining counsel for her 

sentencing hearing. Id. at ¶ 19; see also id. at ¶ 12.

{¶ 16} Even if Boyd has stated a viable claim that the trial court violated his 

Sixth Amendment right to counsel, we recently overruled Ogle I in State ex rel. 

Ogle v. Hocking Cty. Common Pleas Court, __ Ohio St.3d __, 2023-Ohio-3534, __ 

N.E.3d __, ¶ 22 (“Ogle II”). In Ogle II, we held that a “violation of the defendant’s 

right to counsel does not deprive the sentencing court of subject-matter jurisdiction 

any more than any other constitutional or trial error does.” Id. at ¶ 21. Such a 

violation is a structural error that is reversible on appeal, but it does not result in a 

sentence that is void for the court’s lack of subject-matter jurisdiction. Id. 

Therefore, the trial court did not patently and unambiguously lack jurisdiction to 

convict and sentence Boyd.

{¶ 17} Because Boyd had the right to challenge any violation of his right to 

counsel through direct appeal and because the trial court did not patently and 

unambiguously lack jurisdiction to convict or sentence him, he is not entitled to a 
January Term, 2023

7

writ of mandamus or prohibition ordering the trial court to vacate his convictions

and sentence.

C. Boyd is not entitled to a writ requiring the trial court to review the motion to 

withdraw

{¶ 18} Finally, Boyd also seeks a writ of mandamus ordering the trial court 

“to conduct a proper review of the motion to withdraw as counsel, since [the trial 

court] never ruled on said motion.” Even if such a failure to rule on the motion 

would entitle Boyd to a writ of mandamus, the trial court did rule on the motion. 

He is thus not entitled to such a writ. See State ex rel. Whiteside v. Fais, 91 Ohio 

St.3d 463, 464, 746 N.E.2d 1113 (2001) (“Mandamus will not issue to compel an 

act that has already been performed”).

III. CONCLUSION

{¶ 19} Boyd is not entitled to writs of mandamus or prohibition vacating his 

convictions and sentence. We therefore affirm the Sixth District Court of Appeals’ 

judgments dismissing his complaints.

Judgments affirmed.

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

and DETERS, JJ., concur.

_________________

Deonta Boyd, pro se.

Kevin J. Baxter, Erie County Prosecuting Attorney, and Kristin R. Palmer, 

Assistant Prosecuting Attorney, for appellee.

_________________