State ex rel. Green v. Cosgrove

2024 Ohio 1353

• Court: Ohio Court of Appeals
• Decided: April 10, 2024
• Docket: 30650
• Status: Published

Opinion

[Cite as State ex rel. Green v. Cosgrove, 2024-Ohio-1353.]

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

STATE OF OHIO EX REL. DAVID LEE GREEN C.A. No. 30650 Relator

v. ORIGINAL ACTION IN PATRICIA A. COSGROVE MANDAMUS

Respondent

Dated: April 10, 2024

PER CURIAM.

{¶1} Relator, David Lee Green, has filed a complaint seeking a writ of mandamus asking

this Court to order Respondent, Judge Patricia Cosgrove, to correct his sentence. Respondent has

moved to dismiss. This Court previously dismissed this case for failure to comply with the

mandatory requirements of R.C. 2969.25. After Mr. Green moved to vacate, this Court granted

the motion and reinstated the case. Upon consideration of Judge Cosgrove’s motion to dismiss

and Mr. Green’s response, this Court grants the motion to dismiss.

{¶2} When this Court reviews a motion to dismiss pursuant to Civ.R. 12(B)(6), we must

presume that all of the factual allegations in the complaint are true and make all reasonable

inferences in favor of the nonmoving party. State ex rel. Seikbert v. Wilkinson, 69 Ohio St.3d 489,

490 (1994). A complaint can only be dismissed when, having viewed the complaint in this way,

it appears beyond doubt that the relator can prove no set of facts that would entitle the relator to C.A. No. 30650 Page 2 of 4

the relief requested. Goudlock v. Voorhies, 119 Ohio St.3d 389, 2008-Ohio-4787, ¶ 7. With this

standard in mind, we turn to the facts of the complaint.

{¶3} Mr. Green has alleged in his complaint that Judge Cosgrove sentenced him

improperly. According to the complaint, Judge Cosgrove sentenced Mr. Green to ten years in

prison and to an additional term pursuant to a repeat violent offender specification. Mr. Green

contends that because Judge Cosgrove only sentenced him to ten years, rather than the maximum

penalty of eleven years, Mr. Green could not also be sentenced as a repeat violent offender. Mr.

Green further argues that the sentencing entry does not cite to R.C. 2929.14(C)(4) so the imposition

of consecutive sentences is contrary to law. In his prayer for relief, however, Mr. Green only

sought the writ because the application of the repeat violent offender specification was improper.

{¶4} Judge Cosgrove moved to dismiss. She referred to and attached decisions to her

motion that were not included in Mr. Green’s complaint. When reviewing a motion to dismiss,

courts typically cannot rely on evidence or allegations outside the complaint to decide the motion.

Summit Cnty. Children Services v. Stucki, 9th Dist. Summit No. 29911, 2021-Ohio-4584, ¶ 3.

While there are exceptions to this general rule, none of them apply here so, for purposes of

resolving the motion to dismiss, we will not consider this information.

{¶5} “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 relator must demonstrate all three elements for this Court to grant the writ of

mandamus. C.A. No. 30650 Page 3 of 4

{¶6} Viewing the allegations of the complaint in the light required by Civ.R. 12(B)(6),

the complaint does not state a claim for mandamus upon which relief can be granted. Mr. Green

has not argued that his sentence is void, an argument we would be required to reject pursuant to

State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, ¶ 33-34. See, e.g., State v. Green, 9th Dist.

Summit No. 29770, 2021-Ohio-2912, ¶ 5. Instead, the complaint asserts that Judge Cosgrove erred

in imposing sentence.

{¶7} The question before us is whether mandamus relief is available to correct an alleged

error in Mr. Green’s sentence. We conclude it is not.

{¶8} Mr. Green had a right to appeal the sentence imposed by Judge Cosgrove. The

Supreme Court has held “that a direct appeal from a judgment of conviction constitutes an adequate

remedy in the ordinary course of law that precludes extraordinary-writ relief from sentencing

errors.” State ex rel. Cherry v. Breaux, 169 Ohio St.3d 376, 2022-Ohio-1885, ¶ 11. Mr. Green

had an adequate remedy even if his appeal time has now passed. State ex rel. Cain v. Gee, 147

Ohio St.3d 477, 2016-Ohio-7653, ¶ 4.

{¶9} This Court has reviewed the complaint, considered all of the factual allegations as

true, and made all reasonable inferences in favor of Mr. Green. Upon review, this Court concludes

that it appears beyond doubt that Mr. Green can prove no set of facts that would entitle him to the

relief he requested. Mr. Green had an adequate remedy at law by way of appeal to raise his claims

of trial court error. Because he had an adequate remedy, he is not entitled to the writ of mandamus,

and the motion to dismiss must be granted. C.A. No. 30650 Page 4 of 4

{¶10} This case is dismissed. Costs are taxed to Mr. Green. 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. Civ.R. 58.

JENNIFER L. HENSAL FOR THE COURT

CARR, J. STEVENSON, J. CONCUR.

APPEARANCES:

DAVID LEE GREEN, Pro se, Relator.

SHERRI BEVAN WALSH, Prosecuting Attorney, and MARRETT W. HANNA, Assistant Prosecuting Attorney, for Respondent.