[Until this opinion appears in the Ohio Official Reports advanc e 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 f ormal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are reques ted to promptly notify the Reporter of Decisions, Supreme Court of Ohi o, 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.

S LIP O PINION N O
. 2021-O HIO -1207

T HE S TATE EX REL
. P ERSON , A PPELLANT , v . M C C ARTY , J UDGE , A PPELLEE . [Until this opinion appears in t he Ohio Official Reports advanc e 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—R elator 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 Janua ry 26, 2021—Decided April 13, 202 1.)

A PPEAL from the Court of Appeals for Summit County, No. 29700, 2020-Ohio-3532.

________________ Per Curiam. {¶ 1} Appellant, Michael Person, appeal s the judgment of the Ninth Di strict Court of Appeals dismissing his c omplaint for a writ of mandamu s compellingS UPREME C OURT OF O HIO

2 appellee, Summit County Common Pl eas Court Judge Alison McCarty , to vacate his conviction and resente nce him. We affirm. Background {¶ 2} In March 2014, Person was indicted on multiple felony charges, including rape, felonious assault, and “kidnapping * * * in vio lation of Section 2905.01(A)(3) and/or (A)(4) of the Ohio Revised Code.” R.C. 29 05.01(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 victi m or another.” Under R.C. 2905.01(A)(4), it is a kidnapping offense to remove a pers on 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 c harge, the jury did not specify whether Person ha d violated R.C. 2905.01(A)(3), (A) (4), or both. {¶ 4} Person appealed. His appeal did not raise the alleged ambiguit y in the kidnapping conviction. The court o f 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 delay ed 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 manda mus in the Ninth District Court of Appeals against Judge McCarty. Person alleged that because he was charged with alternative kidnapping offenses, an d the jury did not specify which offense he was guilty of, the jury failed to rend er a unanimous verdict. In addition, he alleged ineffective assistance of app ellate counsel, citing
counsel’s failure to raise the unanimous-verdict issue on direc t appeal and counsel’s failure to then advise Person of his right to apply for the reo pening 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 Pe rson was not denied a unanimous verdict and that even if he had been, he had an adequ ate remedy through direct appeal to raise the issue. 2020-Ohio-3532, ¶ 6-8. Addi tionally, 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 pro vide an additional opportunity to pursue mandamus relief.” Id . at ¶ 8. {¶ 7} Person appealed. Legal analysis {¶ 8} To be entitled to a wr it of mandamus, a party must establish, b y clear and convincing evidence, (1) a clear legal right to the request ed relief, (2) a clear legal duty on the part of the r espondent 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 c ourt to dismiss a mandamus complaint pursuant to Civ.R. 12(B)(6) for fa ilure to state a claim upon which relief can be granted, it must appear beyond d oubt 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 reasonab le 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 Ci v.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 i n 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 sp eedy.’ ” State ex rel.S UPREME C OURT OF O HIO

4 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 adequa te remedy by which to challen ge 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 e ntry 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 unabl e to pursue his adequate remed y because his appellate counsel failed to raise the jury-verdict issue. However, as we have previously observed in the context of habeas corpus, a def endant 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 d ismissed Person’s complaint bec ause he had an adequate remedy to challenge the alleged error in his direct appeal and his appellate counsel’s failure t o raise that issue does not af ford Person an independent basis to seek manda mus relief. It is therefore unn ecessary for us to consider Person’s underlying s ubstantive challenge alleging the lack of a unanimous jury verdict. {¶ 12} For this reason, we affirm the j udgment of the court of appeals

. Judgment affirmed.
O’C ONNOR , C.J., and K ENNEDY , F ISCHER , D E W INE , D ONNELLY , S TEWART , and B RUNNER , JJ., concur.

_________________ Michael Person, pro se.January Term, 2021

5 Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Col leen Sims, Assistant Prosecuting Attorney, for appellee.

_________________