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

ex rel. Person v. McCarty, Slip Opinion No. 2021-Ohio-1207.] 

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. 2021-OHIO-1207

THE STATE EX REL. PERSON, APPELLANT, v. MCCARTY, JUDGE, APPELLEE.

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

may be cited as State ex rel. Person v. McCarty, Slip Opinion No. 

2021-Ohio-1207.] 

Mandamus—Relator had adequate remedy at law by way of direct appeal to 

challenge unanimity of jury verdict—Relator had adequate remedy at law 

by way of App.R. 26(B) application for reopening to raise claim of 

ineffective assistance of appellate counsel—Court of appeals’ judgment 

dismissing complaint affirmed.

(No. 2020-0894—Submitted January 26, 2021—Decided April 13, 2021.) 

APPEAL from the Court of Appeals for Summit County, 

No. 29700, 2020-Ohio-3532. 

________________ 

 Per Curiam. 

{¶ 1} Appellant, Michael Person, appeals the judgment of the Ninth District 

Court of Appeals dismissing his complaint for a writ of mandamus compelling 
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appellee, Summit County Common Pleas Court Judge Alison McCarty, to vacate 

his conviction and resentence him. We affirm. 

Background 

{¶ 2} In March 2014, Person was indicted on multiple felony charges, 

including rape, felonious assault, and “kidnapping * * * in violation of Section 

2905.01(A)(3) and/or (A)(4) of the Ohio Revised Code.” R.C. 2905.01(A)(3) 

makes it an offense to remove a person or restrain the liberty of a person in order 

to “terrorize, or to inflict serious physical harm on the victim or another.” Under 

R.C. 2905.01(A)(4), it is a kidnapping offense to remove a person or restrain the 

liberty of a person in order to “engage in sexual activity * * * with the victim against 

the victim’s will.” 

{¶ 3} Following an October 2014 trial before Judge McCarty, the jury found 

Person guilty of all charges. With respect to the kidnapping charge, the jury did 

not specify whether Person had violated R.C. 2905.01(A)(3), (A)(4), or both. 

{¶ 4} Person appealed. His appeal did not raise the alleged ambiguity in the 

kidnapping conviction. The court of appeals affirmed Person’s convictions and 

sentences, State v. Person, 9th Dist. Summit No. 27600, 2016-Ohio-681, ¶ 1, 34, 

and we subsequently denied his motion for leave to file a delayed appeal before this 

court, 146 Ohio St.3d 1469, 2016-Ohio-5108, 54 N.E.3d 1268. 

{¶ 5} On March 11, 2020, Person filed a complaint for a writ of mandamus 

in the Ninth District Court of Appeals against Judge McCarty. Person alleged that 

because he was charged with alternative kidnapping offenses, and the jury did not 

specify which offense he was guilty of, the jury failed to render a unanimous 

verdict. In addition, he alleged ineffective assistance of appellate counsel, citing 

counsel’s failure to raise the unanimous-verdict issue on direct appeal and counsel’s 

failure to then advise Person of his right to apply for the reopening of his appeal 

pursuant to App.R. 26(B). 
January Term, 2021 

3

{¶ 6} The court of appeals granted Judge McCarty’s motion to dismiss the 

complaint for failure to state a claim. The court held that Person was not denied a 

unanimous verdict and that even if he had been, he had an adequate remedy through 

direct appeal to raise the issue. 2020-Ohio-3532, ¶ 6-8. Additionally, the court 

held that Person’s “failure to timely pursue an application to reopen” based on the 

alleged ineffectiveness of his appellate counsel “[did] not provide an additional 

opportunity to pursue mandamus relief.” Id. at ¶ 8. 

{¶ 7} Person appealed. 

Legal analysis 

{¶ 8} To be entitled to a writ of mandamus, a party must establish, by clear 

and convincing evidence, (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, 13; see also State ex rel. Olmstead v. 

Forsthoefel, __ Ohio St.3d __, 2020-Ohio-4951, __ N.E.3d __, ¶ 7. For a court to 

dismiss a mandamus complaint pursuant to Civ.R. 12(B)(6) for failure to state a 

claim upon which relief can be granted, it must appear beyond doubt from the 

complaint that the relator can prove no set of facts warranting relief, after all factual 

allegations of the complaint are presumed true and all reasonable inferences are 

made in the relator’s 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 a decision granting a motion to dismiss under Civ.R. 12(B)(6).” 

Alford v. Collins-McGregor Operating Co., 152 Ohio St.3d 303, 2018-Ohio-8, 95 

N.E.3d 382, ¶ 10. 

{¶ 9} Mandamus will not lie if there is a plain and adequate remedy in the 

ordinary course of the law. State ex rel. Ullmann v. Hayes, 103 Ohio St.3d 405, 

2004-Ohio-5469, 816 N.E.2d 245, ¶ 8. In order to constitute an adequate remedy 

at law, the alternative “ ‘must be complete, beneficial, and speedy.’ ” State ex rel. 
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Chagrin Falls v. Geauga Cty. Bd. of Commrs., 96 Ohio St.3d 400, 2002-Ohio-4906, 

775 N.E.2d 512, ¶ 6, quoting Natl. Elec. Contrs. Assn. at 183. Direct appeal from 

a criminal conviction is an adequate remedy by which to challenge any defects in a 

jury verdict. See, e.g., State ex rel. Galloway v. Lucas Cty. Court of Common Pleas, 

130 Ohio St.3d 206, 2011-Ohio-5259, 957 N.E.2d 11, ¶ 3 (holding that inmate had 

adequate remedy through appeal to raise claim that sentencing entry did not 

properly reflect the jury’s verdict); Perry v. Sloan, 149 Ohio St.3d 690, 2017-Ohio1404, 77 N.E.3d 942, ¶ 2-3. 

{¶ 10} Person contends that he was unable to pursue his adequate remedy 

because his appellate counsel failed to raise the jury-verdict issue. However, as we 

have previously observed in the context of habeas corpus, a defendant cannot seek 

extraordinary relief based on alleged ineffective assistance of appellate counsel 

because an application to reopen the appeal pursuant to App.R. 26(B) constitutes 

an adequate remedy for that claim. Perry at ¶ 4. Person has presented no argument 

for rejecting this reasoning in the mandamus context. 

{¶ 11} The court of appeals correctly dismissed Person’s complaint because 

he had an adequate remedy to challenge the alleged error in his direct appeal and 

his appellate counsel’s failure to raise that issue does not afford Person an 

independent basis to seek mandamus relief. It is therefore unnecessary for us to 

consider Person’s underlying substantive challenge alleging the lack of a 

unanimous jury verdict. 

{¶ 12} For this reason, we affirm the judgment of the court of appeals. 

 Judgment affirmed. 

O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART, 

and BRUNNER, JJ., concur. 

_________________ 

Michael Person, pro se. 
January Term, 2021 

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Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Colleen 

Sims, Assistant Prosecuting Attorney, for appellee. 

_________________