[Cite as State ex rel. Simmons v. Stormer, 2019-Ohio-3875.]


STATE OF OHIO                     )                           IN THE COURT OF APPEALS
                                  )ss:                        NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO EX REL. JOHN
SIMMONS                                                       C.A. No.   29440

        Relator

        v.
                                                              ORIGINAL ACTION IN
JUDGE ELINORE MARSH STORMER                                   MANDAMUS

        Respondent


Dated: September 25, 2019



        PER CURIAM.

        {¶1}      John Simmons has petitioned this Court for a writ of mandamus to compel

Respondent, Judge Elinore Marsh Stormer, to resentence him in his Summit County

criminal case, CR-2007-09-3003. Judge Breaux, the successor to Judge Stormer, has

moved to dismiss. Mr. Simmons filed a response to the motion to dismiss. For the

following reasons, this Court grants Judge Breaux’s motion to dismiss.

        {¶2}      “For a writ of mandamus to issue, a relator must demonstrate that (1) the

relator has a clear legal right to the relief prayed for, (2) respondent is under a

corresponding clear legal duty to perform the requested acts, and (3) relator has no plain

and adequate legal remedy.” State ex rel. Serv. Emp. Internatl. Union, Dist. 925 v. State

Emp. Relations Bd., 81 Ohio St.3d 173, 176 (1998). The petitioner must demonstrate all

three elements in order for this Court to grant the writ of mandamus. “A court can dismiss

a mandamus action under Civ.R. 12(B)(6) for failure to state a claim upon which relief
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can be granted if, after all factual allegations of the complaint are presumed true and all

reasonable inferences are made in relator’s favor, it appears beyond doubt that he can

prove no set of facts entitling him to the requested writ of mandamus.” State ex rel.

Russell v. Thornton, 111 Ohio St.3d 409, 2006-Ohio-5858, ¶ 9. This Court may consider

evidence outside the complaint to determine that an action is moot. State ex rel. Nelson

v. Russo, 89 Ohio St.3d 227, 228 (2000).

       {¶3}   Mr. Simmons’ complaint alleges that he is entitled to a writ of mandamus

compelling Judge Breaux to resentence him because his sentence is void and not final.

Judge Breaux responded that Mr. Simmons had moved to be resentenced in May 2018 and

she denied his motion in July 2018. Mr. Simmons attempted to appeal that denial, but his

appeal was dismissed as untimely.

       {¶4}   According to Judge Breaux’s motion to dismiss, a review of the trial court

docket, and Mr. Simmons’ response to the motion to dismiss, Judge Breaux denied Mr.

Simmons’ motion for resentencing. That motion raised the same issues he has asserted in

this action. Mr. Simmons’ could have appealed Judge Breaux’s denial of his motion to

resentence. In fact, Judge Breaux’s response, and the trial court docket, show that he

attempted to appeal, but his notice of appeal was untimely.

       {¶5}   Although it appears this matter is moot, we also consider Judge Breaux’s

motion to dismiss for failure to state a claim on which relief can be granted. Mr. Simmons

has alleged that Judge Breaux has a duty to sentence him to provide him with a final,

appealable order. He contends the judgment of conviction is not final for three reasons:

(1) the trial court erred when it imposed one period of postrelease control for two offenses,
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(2) the trial court exceeded the scope of the Ohio Supreme Court’s remand when it

changed the term of his sentence from 10 years to 20 years, and (3) the trial court failed

to include the findings required for consecutive sentences pursuant to R.C. 2929.14.

       {¶6}   None of Mr. Simmons’ arguments, even if correct, would render his

sentence void or nonfinal. First, this Court has recognized that, if a court imposes sentence

for multiple convictions, its “imposition of one term of postrelease control is proper.”

State v. Kracker, 9th Dist. Summit No. 25315, 2010-Ohio-5329, ¶ 6; see R.C.

2967.28(F)(4)(c) (“If an offender is subject to more than one period of post-release

control, the period * * * for all of the sentences shall be the period * * * that expires

last[.]”). Second, if the resentencing exceeded the scope of the Supreme Court’s remand,

that error should have been raised on appeal. Finally, any error regarding imposition of

consecutive sentences should have been raised on appeal.

       {¶7}   With respect to alleged legal errors, it is well-established that mandamus

cannot be used as a substitute for appeal to challenge a trial court’s actions. State ex rel.

Richfield v. Laria, 138 Ohio St.3d 168, 2014-Ohio-243, ¶ 11. Appeal from an adverse

judgment constitutes an adequate remedy in the ordinary course of law. State ex rel.

Caskey v. Gano, 135 Ohio St.3d 175, 2013-Ohio-71, ¶ 5. Thus, to the extent the trial court

committed any error, appeal provided an adequate remedy to assert those claimed errors,

and mandamus is not an appropriate remedy. See, e.g., State ex rel. Plant v. Cosgrove,

119 Ohio St.3d 264, 2008-Ohio-3838, ¶ 5.

       {¶8}   Mr. Simmons has also argued that the Ohio Supreme Court has held that if

a trial court refuses to resentence, then mandamus provides the appropriate remedy. The
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cases he cited for this proposition involved situations where the trial court refused to act.

Here, Judge Breaux actually denied his motion to resentence. Judge Breaux did not refuse

to act and mandamus relief is not warranted under these circumstances.

       {¶9}   Even if all of the factual allegations of Mr. Simmons’ complaint are

presumed true, and all reasonable inferences are made in his favor, it appears beyond

doubt that Mr. Simmons cannot demonstrate that he is entitled to a writ of mandamus.

Judge Breaux’s motion to dismiss is, therefore, granted.

       {¶10} The motion to dismiss is granted, and this case is dismissed. Costs are taxed

to Mr. Simmons. The clerk of courts is hereby directed to serve upon all parties not in

default notice of this judgment and its date of entry upon the journal. See Civ.R. 58.




                                                  THOMAS A. TEODOSIO
                                                  FOR THE COURT




HENSAL, J.
SCHAFER, J.
CONCUR.

APPEARANCES:

JOHNS SIMMONS, Pro se, Relator.

SHERRI BEVAN WALSH, Prosecuting Attorney, and COLLEEN SIMS, Assistant Prosecuting
