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

ex rel. Martre v. Cheney, Slip Opinion No. 2023-Ohio-4594.]

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-4594

THE STATE EX REL. MARTRE, APPELLANT, v. CHENEY, JUDGE, ET AL.,

APPELLEES.

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

may be cited as State ex rel. Martre v. Cheney, Slip Opinion No. 

2023-Ohio-4594.]

Prohibition—Extraordinary relief in prohibition is not available to attack validity 

of an indictment—Inmate had adequate remedy in ordinary course of law 

by appeal to raise any claims of deficiencies in indictment—Court of 

appeals’ judgment granting judge’s motion to dismiss for failure to state 

claim in prohibition affirmed.

(No. 2023-0919—Submitted November 14, 2023—Decided December 20, 2023.)

APPEAL from the Court of Appeals for Allen County, No. 1-23-05.

__________________

Per Curiam.

{¶ 1} Appellant, Derrick Martre, appeals the Third District Court of 

Appeals’ dismissal of his amended complaint for a writ of prohibition under Civ.R. 
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12(B)(6). Martre also moves for default judgment because appellees, Judge David 

Cheney (or his successor in office) and Judge Jeffrey L. Reed, both of the Allen 

County Court of Common Pleas, did not file a merit brief in this appeal. We deny 

Martre’s motion and affirm the court of appeals’ judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

{¶ 2} In May 2017, Martre’s then-girlfriend reported to police that Martre 

had assaulted her in a hotel room in Toledo. She told police that Martre became 

angry with her after she had seen two videos on Martre’s cellphone, each of them 

showing Martre touching a minor female in a state of nudity. The children in the 

video were the six- and nine-year-old daughters of Martre’s ex-girlfriend, who lived 

in Lima and with whom Martre had recently been staying. Toledo police ultimately 

obtained a warrant to search Martre’s phone.

{¶ 3} In December 2017, an Allen County grand jury indicted Martre on six 

felony counts: two counts of gross sexual imposition (Counts 1 and 2 of the 

indictment), two counts of pandering sexually oriented material involving a minor 

(Counts 3 and 5), and two counts of illegal use of a minor in nudity-oriented 

material (Counts 2 and 4). The indictment alleged that all the charged offenses 

occurred in Allen County. Martre pleaded no contest to the indictment. The trial 

court found Martre guilty of the charged offenses and sentenced him to an aggregate 

term of 12 years in prison. The court also classified Martre as a Tier II sex offender.

{¶ 4} In February 2023, Martre filed a complaint for a writ of prohibition in 

the Third District Court of Appeals, naming Judge Reed as the respondent. Martre 

claimed that the Allen County grand jury had lacked jurisdiction to indict him for 

the offenses charged in Counts 3 through 6 of the indictment because those offenses 

occurred in Lucas County. In support of this claim, Martre argued that the 

cellphone-video evidence forming the basis of those charges “was initially located, 

seized, and searched by the Toledo Police Department within the jurisdiction of 

Lucas County.” Because the grand jury had lacked jurisdiction to indict him on 
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3

those counts, Martre contended, the trial court likewise had lacked jurisdiction over 

them. Martre requested a writ of prohibition ordering that his Tier II sex-offender 

classification be vacated.

{¶ 5} Judge Reed filed a motion to dismiss. He argued that prohibition 

could not lie against him, because it was Judge Cheney who had exercised judicial 

authority in Martre’s criminal case. And even if he were the correct respondent, 

Judge Reed argued, jurisdiction was not lacking, because the indictment expressly 

alleged that the charged offenses took place in Allen County. Martre filed a 

memorandum opposing the motion to dismiss. He also filed a motion for leave to 

file an amended complaint and a proposed amended complaint.

{¶ 6} In his amended complaint, Martre added Judge Cheney “or his 

successor” as a respondent. Judge Cheney, who is no longer on the bench, was the 

judge who sentenced Martre in August 2018. The facts alleged in Martre’s

amended complaint are the same as those alleged in his original complaint. But the 

amended complaint requests that his convictions on Counts 3 through 6, in addition 

to his Tier II classification, be vacated.

{¶ 7} Martre also filed a motion for summary judgment and a motion for 

judicial notice of facts under Evid.R. 201. In his motion for summary judgment, 

Martre argued that Counts 3 through 6 of the indictment had alleged acts that were 

committed in Lucas County, thus depriving the Allen County grand jury and trial 

court of jurisdiction. And in his motion for judicial notice, Martre asked the court 

of appeals to take judicial notice of, in substance, all facts alleged in the amended 

complaint and his entitlement to relief in prohibition based on those facts.

{¶ 8} Judge Reed filed a renewed motion to dismiss, which included

arguments in opposition to Martre’s motions for leave to file an amended 

complaint, for summary judgment, and for judicial notice. Judge Reed argued that 

he had not exercised judicial power in Martre’s criminal case, because former Judge 

Cheney was the trial judge in those proceedings. Judge Reed also argued that a 
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writ of prohibition did not lie against Judge Cheney or his successor, because the 

indictment alleged that the offenses took place in Allen County and, therefore, the 

trial court had jurisdiction to convict Martre and find him to be a Tier II sex 

offender. Finally, Judge Reed argued that Martre’s prohibition claim was barred 

by res judicata because he had raised the same issues in multiple prior cases, 

including a habeas corpus proceeding in this court. See State ex rel. Martre v. 

Watson, 171 Ohio St.3d 810, 2023-Ohio-749, 220 N.E.3d 806, ¶ 10-11 (rejecting 

same argument Martre raises in this case). Martre filed a motion to strike Judge 

Reed’s filing as untimely but did not file a memorandum opposing it.

{¶ 9} The court of appeals granted Martre’s motion for leave to file an 

amended complaint, denied Martre’s motion to strike, and granted Judge Reed’s 

renewed motion to dismiss. The court dismissed Judge Reed as a respondent 

because he is not Judge Cheney’s successor in office. The court further held that 

regardless of which Allen County Common Pleas Court judge imposed Martre’s 

sentence, Martre had failed to state a claim in prohibition because the trial court did 

not patently and unambiguously lack jurisdiction. The court of appeals also noted 

that Martre had had an adequate remedy in the ordinary course of the law by way 

of appeal and postconviction motions to challenge his convictions and sentence. 

The court denied Martre’s motion for summary judgment and motion for judicial 

notice.

{¶ 10} Martre appealed to this court as of right. He timely filed a merit 

brief; appellees did not file a brief or otherwise appear in this appeal.

II. ANALYSIS

A. Motion for Default Judgment

{¶ 11} Martre asks this court to enter a “default judgment” in his favor 

under S.Ct.Prac.R. 16.07 based on appellees’ failure to file a brief. When an 

appellee does not file a merit brief, we may accept the appellant’s statement of facts 

and issues as correct and reverse the court of appeals’ judgment if the appellant’s 
January Term, 2023

5

brief reasonably appears to sustain reversal. S.Ct.Prac.R. 16.07(B). Even if we 

were to accept Martre’s statement of facts and issues as correct, his brief does not 

provide a legitimate basis for reversing the court of appeals’ judgment. We 

therefore deny Martre’s motion.

B. Denial of Martre’s Motion to Strike

{¶ 12} As his first proposition of law, Martre argues that the court of 

appeals abused its discretion by denying Martre’s motion to strike Judge Reed’s 

renewed motion to dismiss. Martre complains that the court of appeals made no 

factual finding of excusable neglect that would have justified Judge Reed’s late 

filing.

{¶ 13} We reject this proposition of law. To obtain reversal of a judgment, 

an appellant must show an error that was prejudicial to him. Hampel v. Food 

Ingredients Specialties, Inc., 89 Ohio St.3d 169, 185, 729 N.E.2d 726 (2000). 

Martre does not argue how it was prejudicial to him for the court of appeals to allow 

Judge Reed’s late filing. Martre’s argument focuses on the untimeliness of Judge 

Reed’s opposition to his motion for summary judgment, but as explained fully 

below, the court of appeals dismissed his amended complaint under Civ.R. 12(B)(6) 

for his failure to state a claim upon which relief could be granted. Thus, the court 

of appeals decided this case without addressing Martre’s motion for summary 

judgment. Accordingly, Martre fails to demonstrate how denying his motion to 

strike was prejudicial.

C. Denial of Martre’s Motion for Judicial Notice

{¶ 14} As his second proposition of law, Martre argues that the court of 

appeals abused its discretion in denying his motion for judicial notice of the facts 

alleged in the amended complaint and his entitlement to relief based on those facts. 

See State ex rel. Womack v. Marsh, 128 Ohio St.3d 303, 2011-Ohio-229, 943

N.E.2d 1010, ¶ 8 (courts may take judicial notice of appropriate matters in ruling 

on a Civ.R. 12(B)(6) motion to dismiss).
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{¶ 15} The court of appeals correctly denied Martre’s motion for judicial 

notice. A judicially noticed fact must either be “(1) generally known within the 

territorial jurisdiction of the trial court or (2) capable of accurate and ready 

determination by resort to sources whose accuracy cannot reasonably be 

questioned.” Evid.R. 201(B). Martre’s motion, however, requested judicial notice 

of disputed facts and legal conclusions, which are improper matters for judicial 

notice under Evid.R. 201(B). See State ex rel. Arnold v. Gallagher, 153 Ohio St.3d 

234, 2018-Ohio-2628, 103 N.E.3d 818, ¶ 31.

D. Dismissal of Martre’s Complaint

{¶ 16} As his third proposition of law, Martre challenges the court of 

appeals’ dismissal of his prohibition claim under Civ.R. 12(B)(6). We review de 

novo a court of appeals’ dismissal of an extraordinary-writ action under Civ.R. 

12(B)(6). State ex rel. Zander v. Judge of Summit Cty. Common Pleas Court, 156 

Ohio St.3d 466, 2019-Ohio-1704, 129 N.E.3d 401, ¶ 4. Dismissal is appropriate if 

it appears beyond doubt, taking all factual allegations in the complaint as true, that 

the relator can prove no set of facts entitling him to extraordinary relief in 

prohibition. State ex rel. Jones v. Paschke, 168 Ohio St.3d 93, 2022-Ohio-2427, 

195 N.E.3d 1031, ¶ 5.

{¶ 17} To be entitled to a writ of prohibition, Martre must establish that (1) 

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

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

adequate remedy exists in the ordinary course of the law. Id. at ¶ 6. The third 

element is not required to be proved if the trial court patently and unambiguously 

lacked jurisdiction. Id. Prohibition will generally lie only for an absence of subjectmatter jurisdiction. Id. at ¶ 8.

{¶ 18} The basis of Martre’s prohibition complaint is that the Allen County

grand jury lacked jurisdiction to indict him on Counts 3 through 6 of the indictment 

because those offenses were committed in Lucas County, notwithstanding that the 
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7

indictment expressly states that the offenses were committed in Allen County. And 

because, in his view, the grand jury lacked jurisdiction over those offenses, Martre 

contends that the Allen County trial court likewise lacked jurisdiction over his case. 

The flaw in Martre’s theory is that he has not identified a jurisdictional defect. As 

this court held in affirming the dismissal of a habeas corpus action filed by Martre 

asserting the same theory, “what Martre attempts to cast as a jurisdictional defect 

is merely a challenge to the validity of the indictment” and “[a]lleged defects in an 

indictment do not deprive a trial court of jurisdiction.” State ex rel. Martre v. 

Watson, 171 Ohio St.3d 810, 2023-Ohio-749, 220 N.E.3d 806, at ¶ 11, citing State 

ex rel. Sands v. Bunting, 150 Ohio St.3d 325, 2017-Ohio-5697, 81 N.E.3d 459, ¶ 2, 

4. Therefore, extraordinary relief in prohibition is not available to attack the 

validity of an indictment. See State ex rel. Nelson v. Griffin, 103 Ohio St.3d 167, 

2004-Ohio-4754, 814 N.E.2d 866, ¶ 6. Martre had an adequate remedy in the 

ordinary course of the law by appeal to raise any claims of deficiencies in the 

indictment. State ex rel. Bennett v. White, 93 Ohio St.3d 583, 584, 757 N.E.2d 364

(2001).

{¶ 19} Because Martre did not state a valid claim for extraordinary relief in 

prohibition, the court of appeals was correct to grant the motion to dismiss.

E. Denial of Martre’s Motion for Summary Judgment

{¶ 20} Martre argues as his final proposition of law that the court of appeals 

abused its discretion in denying his motion for summary judgment. Because the 

court of appeals correctly dismissed Martre’s action for failure to state a claim upon 

which relief could be granted, Martre necessarily could not prevail on summary 

judgment under Civ.R. 56. Accordingly, the court of appeals did not err in denying 

Martre’s motion for summary judgment. See Henderson v. State, 8th Dist. 

Cuyahoga No. 101862, 2015-Ohio-1742, ¶ 22.
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IV. CONCLUSION

{¶ 21} For the foregoing reasons, we deny Martre’s motion for default 

judgment and affirm the judgment of the court of appeals.

Judgment affirmed.

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

and DETERS, JJ., concur.

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Derrick Martre, pro se.

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