State ex rel. Martre v. Cheney

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Martre v. Cheney, Slip Opinion No. 

.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
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      South Front Street, Columbus, Ohio 43215, of any typographical or other
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      the opinion is published.




                          SLIP OPINION NO. 

    THE STATE EX REL . MARTRE, APPELLANT , v. CHENEY, JUDGE, ET AL.,
                                         APPELLEES.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
         may be cited as State ex rel. Martre v. Cheney, Slip Opinion No.
                                     

.]
Prohibition—Extraordinary relief in prohibition is not available to attack validity
        of an indictment—Inmate had adequate remedy in ordinary course of law
        by appeal to raise any claims of deficiencies in indictment—Court of
        appeals’ judgment granting judge’s motion to dismiss for failure to state
        claim in prohibition affirmed.
(No. 2023-0919—Submitted November 14, 2023—Decided December 20, 2023.)
         APPEAL from the Court of Appeals for Allen County, No. 1-23-05.
                                   __________________
        Per Curiam.
        {¶ 1} Appellant, Derrick Martre, appeals the Third District Court of
Appeals’ dismissal of his amended complaint for a writ of prohibition under Civ.R.
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12(B)(6). Martre also moves for default judgment because appellees, Judge David
Cheney (or his successor in office) and Judge Jeffrey L. Reed, both of the Allen
County Court of Common Pleas, did not file a merit brief in this appeal. We deny
Martre’s motion and affirm the court of appeals’ judgment.
              I. FACTUAL AND PROCEDURAL BACKGROUND
       {¶ 2} In May 2017, Martre’s then-girlfriend reported to police that Martre
had assaulted her in a hotel room in Toledo. She told police that Martre became
angry with her after she had seen two videos on Martre’s cellphone, each of them
showing Martre touching a minor female in a state of nudity. The children in the
video were the six- and nine-year-old daughters of Martre’s ex-girlfriend, who lived
in Lima and with whom Martre had recently been staying. Toledo police ultimately
obtained a warrant to search Martre’s phone.
       {¶ 3} In December 2017, an Allen County grand jury indicted Martre on six
felony counts: two counts of gross sexual imposition (Counts 1 and 2 of the
indictment), two counts of pandering sexually oriented material involving a minor
(Counts 3 and 5), and two counts of illegal use of a minor in nudity-oriented
material (Counts 2 and 4). The indictment alleged that all the charged offenses
occurred in Allen County. Martre pleaded no contest to the indictment. The trial
court found Martre guilty of the charged offenses and sentenced him to an aggregate
term of 12 years in prison. The court also classified Martre as a Tier II sex offender.
       {¶ 4} In February 2023, Martre filed a complaint for a writ of prohibition in
the Third District Court of Appeals, naming Judge Reed as the respondent. Martre
claimed that the Allen County grand jury had lacked jurisdiction to indict him for
the offenses charged in Counts 3 through 6 of the indictment because those offenses
occurred in Lucas County.       In support of this claim, Martre argued that the
cellphone-video evidence forming the basis of those charges “was initially located,
seized, and searched by the Toledo Police Department within the jurisdiction of
Lucas County.” Because the grand jury had lacked jurisdiction to indict him on



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those counts, Martre contended, the trial court likewise had lacked jurisdiction over
them. Martre requested a writ of prohibition ordering that his Tier II sex-offender
classification be vacated.
        {¶ 5} Judge Reed filed a motion to dismiss. He argued that prohibition
could not lie against him, because it was Judge Cheney who had exercised judicial
authority in Martre’s criminal case. And even if he were the correct respondent,
Judge Reed argued, jurisdiction was not lacking, because the indictment expressly
alleged that the charged offenses took place in Allen County. Martre filed a
memorandum opposing the motion to dismiss. He also filed a motion for leave to
file an amended complaint and a proposed amended complaint.
        {¶ 6} In his amended complaint, Martre added Judge Cheney “or his
successor” as a respondent. Judge Cheney, who is no longer on the bench, was the
judge who sentenced Martre in August 2018.          The facts alleged in Martre’s
amended complaint are the same as those alleged in his original complaint. But the
amended complaint requests that his convictions on Counts 3 through 6, in addition
to his Tier II classification, be vacated.
        {¶ 7} Martre also filed a motion for summary judgment and a motion for
judicial notice of facts under Evid.R. 201. In his motion for summary judgment,
Martre argued that Counts 3 through 6 of the indictment had alleged acts that were
committed in Lucas County, thus depriving the Allen County grand jury and trial
court of jurisdiction. And in his motion for judicial notice, Martre asked the court
of appeals to take judicial notice of, in substance, all facts alleged in the amended
complaint and his entitlement to relief in prohibition based on those facts.
        {¶ 8} Judge Reed filed a renewed motion to dismiss, which included
arguments in opposition to Martre’s motions for leave to file an amended
complaint, for summary judgment, and for judicial notice. Judge Reed argued that
he had not exercised judicial power in Martre’s criminal case, because former Judge
Cheney was the trial judge in those proceedings. Judge Reed also argued that a



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writ of prohibition did not lie against Judge Cheney or his successor, because the
indictment alleged that the offenses took place in Allen County and, therefore, the
trial court had jurisdiction to convict Martre and find him to be a Tier II sex
offender. Finally, Judge Reed argued that Martre’s prohibition claim was barred
by res judicata because he had raised the same issues in multiple prior cases,
including a habeas corpus proceeding in this court. See State ex rel. Martre v.
Watson, 

, 

, 

 (rejecting
same argument Martre raises in this case). Martre filed a motion to strike Judge
Reed’s filing as untimely but did not file a memorandum opposing it.
          {¶ 9} The court of appeals granted Martre’s motion for leave to file an
amended complaint, denied Martre’s motion to strike, and granted Judge Reed’s
renewed motion to dismiss. The court dismissed Judge Reed as a respondent
because he is not Judge Cheney’s successor in office. The court further held that
regardless of which Allen County Common Pleas Court judge imposed Martre’s
sentence, Martre had failed to state a claim in prohibition because the trial court did
not patently and unambiguously lack jurisdiction. The court of appeals also noted
that Martre had had an adequate remedy in the ordinary course of the law by way
of appeal and postconviction motions to challenge his convictions and sentence.
The court denied Martre’s motion for summary judgment and motion for judicial
notice.
          {¶ 10} Martre appealed to this court as of right. He timely filed a merit
brief; appellees did not file a brief or otherwise appear in this appeal.
                                  II. ANALYSIS
                         A. Motion for Default Judgment
          {¶ 11} Martre asks this court to enter a “default judgment” in his favor
under S.Ct.Prac.R. 16.07 based on appellees’ failure to file a brief. When an
appellee does not file a merit brief, we may accept the appellant’s statement of facts
and issues as correct and reverse the court of appeals’ judgment if the appellant’s



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brief reasonably appears to sustain reversal. S.Ct.Prac.R. 16.07(B). Even if we
were to accept Martre’s statement of facts and issues as correct, his brief does not
provide a legitimate basis for reversing the court of appeals’ judgment. We
therefore deny Martre’s motion.
                      B. Denial of Martre’s Motion to Strike
          {¶ 12} As his first proposition of law, Martre argues that the court of
appeals abused its discretion by denying Martre’s motion to strike Judge Reed’s
renewed motion to dismiss. Martre complains that the court of appeals made no
factual finding of excusable neglect that would have justified Judge Reed’s late
filing.
          {¶ 13} We reject this proposition of law. To obtain reversal of a judgment,
an appellant must show an error that was prejudicial to him. Hampel v. Food
Ingredients Specialties, Inc., 

, 

 (2000).
Martre does not argue how it was prejudicial to him for the court of appeals to allow
Judge Reed’s late filing. Martre’s argument focuses on the untimeliness of Judge
Reed’s opposition to his motion for summary judgment, but as explained fully
below, the court of appeals dismissed his amended complaint under Civ.R. 12(B)(6)
for his failure to state a claim upon which relief could be granted. Thus, the court
of appeals decided this case without addressing Martre’s motion for summary
judgment. Accordingly, Martre fails to demonstrate how denying his motion to
strike was prejudicial.
                 C. Denial of Martre’s Motion for Judicial Notice
          {¶ 14} As his second proposition of law, Martre argues that the court of
appeals abused its discretion in denying his motion for judicial notice of the facts
alleged in the amended complaint and his entitlement to relief based on those facts.
See State ex rel. Womack v. Marsh, 

, 

, 

, ¶ 8 (courts may take judicial notice of appropriate matters in ruling
on a Civ.R. 12(B)(6) motion to dismiss).



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        {¶ 15} The court of appeals correctly denied Martre’s motion for judicial
notice. A judicially noticed fact must either be “(1) generally known within the
territorial jurisdiction of the trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be
questioned.” Evid.R. 201(B). Martre’s motion, however, requested judicial notice
of disputed facts and legal conclusions, which are improper matters for judicial
notice under Evid.R. 201(B). See State ex rel. Arnold v. Gallagher, 

, 

, 

.
                       D. Dismissal of Martre’s Complaint
        {¶ 16} As his third proposition of law, Martre challenges the court of
appeals’ dismissal of his prohibition claim under Civ.R. 12(B)(6). We review de
novo a court of appeals’ dismissal of an extraordinary-writ action under Civ.R.
12(B)(6). State ex rel. Zander v. Judge of Summit Cty. Common Pleas Court, 

, 

, 

. Dismissal is appropriate if
it appears beyond doubt, taking all factual allegations in the complaint as true, that
the relator can prove no set of facts entitling him to extraordinary relief in
prohibition. State ex rel. Jones v. Paschke, 

, 

,

.
        {¶ 17} To be entitled to a writ of prohibition, Martre must establish that (1)
the trial court exercised judicial power, (2) the exercise of that power was
unauthorized by law, and (3) denial of the writ would result in injury for which no
adequate remedy exists in the ordinary course of the law. Id. at ¶ 6. The third
element is not required to be proved if the trial court patently and unambiguously
lacked jurisdiction. Id. Prohibition will generally lie only for an absence of subject-
matter jurisdiction. Id. at ¶ 8.
        {¶ 18} The basis of Martre’s prohibition complaint is that the Allen County
grand jury lacked jurisdiction to indict him on Counts 3 through 6 of the indictment
because those offenses were committed in Lucas County, notwithstanding that the



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indictment expressly states that the offenses were committed in Allen County. And
because, in his view, the grand jury lacked jurisdiction over those offenses, Martre
contends that the Allen County trial court likewise lacked jurisdiction over his case.
The flaw in Martre’s theory is that he has not identified a jurisdictional defect. As
this court held in affirming the dismissal of a habeas corpus action filed by Martre
asserting the same theory, “what Martre attempts to cast as a jurisdictional defect
is merely a challenge to the validity of the indictment” and “[a]lleged defects in an
indictment do not deprive a trial court of jurisdiction.” State ex rel. Martre v.
Watson, 

, 

, 

, citing State
ex rel. Sands v. Bunting, 

, 

, 

. Therefore, extraordinary relief in prohibition is not available to attack the
validity of an indictment. See State ex rel. Nelson v. Griffin, 

,

, 

, ¶ 6. Martre had an adequate remedy in the
ordinary course of the law by appeal to raise any claims of deficiencies in the
indictment. State ex rel. Bennett v. White, 

, 

(2001).
          {¶ 19} Because Martre did not state a valid claim for extraordinary relief in
prohibition, the court of appeals was correct to grant the motion to dismiss.
              E. Denial of Martre’s Motion for Summary Judgment
          {¶ 20} Martre argues as his final proposition of law that the court of appeals
abused its discretion in denying his motion for summary judgment. Because the
court of appeals correctly dismissed Martre’s action for failure to state a claim upon
which relief could be granted, Martre necessarily could not prevail on summary
judgment under Civ.R. 56. Accordingly, the court of appeals did not err in denying
Martre’s motion for summary judgment.             See Henderson v. State, 8th Dist.
Cuyahoga No. 101862, 

, ¶ 22.




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                              IV. CONCLUSION
       {¶ 21} For the foregoing reasons, we deny Martre’s motion for default
judgment and affirm the judgment of the court of appeals.
                                                            Judgment affirmed.
       KENNEDY, C.J., and FISCHER, DEWINE, DONNELLY, STEWART, BRUNNER,
and DETERS, JJ., concur.
                                 _________________
       Derrick Martre, pro se.
                                 _________________




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