State ex rel. Cherry v. Breaux, 2022 Ohio 1885

Background

Elliott J. Cherry was convicted in 2001 of child endangering and felony murder (child endangering as predicate); the trial court merged the allied offenses but imposed concurrent sentences (8 years and 15-to-life).
In 2019 Cherry moved to vacate the sentence under State v. Williams, arguing a sentence on both merged offenses was void; the Ninth District (Cherry II) agreed and reversed, remanding for a new sentencing hearing at which the state must elect which allied offense to pursue.
On remand the trial court held a brief hearing in March 2020: the prosecutor elected to proceed on the murder count, defense counsel and prosecutor agreed the mandatory 15-to-life sentence remained unchanged, and the court voided the prior child-endangering sentence and journalized the modification without a fuller de novo hearing.
Cherry appealed the modified sentencing order (arguing he was entitled to a de novo resentencing he could personally attend and to counsel of his choice); the Ninth District in Cherry III affirmed, declining to follow Cherry II based on intervening Ohio Supreme Court authority (Harper, Henderson) holding the sentence was voidable, not void, making res judicata applicable.
Cherry filed a mandamus petition in the court of appeals seeking to compel the trial court to hold the full Whitfield de novo resentencing; the appellate court dismissed the petition, finding Cherry had an adequate remedy by direct appeal (which he pursued in Cherry III).
The Ohio Supreme Court affirmed the dismissal, holding mandamus was unavailable because Cherry had an adequate remedy in the ordinary course of law (direct appeal), and that his remedy to challenge the appellate court’s handling was a discretionary appeal from Cherry III.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court was bound to hold a full de novo resentencing per the Ninth District mandate in Cherry II	Cherry: Cherry II established a clear right to a de novo hearing; trial court violated the mandate by holding a summary hearing	State/Trial court: Subsequent Ohio Supreme Court authority changed the law; Cherry II mandate was no longer controlling	The law-of-the-case argument fails because Cherry had an adequate remedy by direct appeal; mandamus not available
Whether mandamus is appropriate to enforce the appellate mandate instead of pursuing direct appeal	Cherry: Mandamus enforces established rights created by the mandate; an appeal is not an enforcement vehicle	Respondent: Extraordinary writ is barred when an adequate ordinary remedy (direct appeal) exists	Mandamus barred—direct appeal is an adequate remedy in the ordinary course of law
Whether Cherry was deprived of counsel of his choice at resentencing	Cherry: An attorney appeared who was neither retained nor appointed and did not receive notice	Respondent: Issues like this are properly raised on direct appeal	Court did not grant mandamus; such claims are subject to appeal review

Key Cases Cited

State v. Williams, 148 Ohio St.3d 403 (recognizing when multiple sentences for merged allied offenses may be void)
State v. Whitfield, 124 Ohio St.3d 319 (clarifying procedure when allied-offense merger requires the state to elect an offense at resentencing)
State v. Harper, 160 Ohio St.3d 480 (holding some sentencing defects are voidable, affecting res judicata analysis)
State v. Henderson, 161 Ohio St.3d 285 (confirming voidable-versus-void analysis relevant to collateral relief and res judicata)
Nolan v. Nolan, 11 Ohio St.3d 1 (articulating the law-of-the-case doctrine)
Hopkins v. Dyer, 104 Ohio St.3d 461 (explaining the scope of law-of-the-case at trial and appellate levels)
State ex rel. Roush v. Montgomery, 156 Ohio St.3d 351 (holding existence of adequate remedy bars mandamus)
State ex rel. Crangle v. Summit Cty. Common Pleas Court, 162 Ohio St.3d 488 (direct appeal is ordinarily an adequate remedy for sentencing errors)