State v. Evans , 2015 Ohio 3161 ( 2015 )

[Cite as State v. Evans, 2015-Ohio-3161.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 26574
:
v. : Trial Court Case No. 2009-CR-3184
:
RICHARD EVANS : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 7th day of August, 2015.
...........
MATHIAS H. HECK, JR., by CARLEY J. INGRAM, Atty. Reg. No. 0020084, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building,
P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
RICHARD EVANS, # 627-426, Madison Correctional Institution, 1851 State Route 56,
Post Office Box 740, London, Ohio 43140
Defendant-Appellant, pro se
.............
HALL, J.
{¶ 1} Richard Evans appeals pro se from the trial court’s denial of his Civ.R. 60(B)
motion for relief from judgment, which it treated as a petition for post-conviction relief
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under R.C. 2953.21.
{¶ 2} The record reflects that Evans was convicted and sentenced in 2010 on
charges of felony murder and having a weapon while under disability for his role in a fatal
bar fight. Although a jury found him guilty on other charges, they merged into the felony
murder conviction. The trial court imposed an aggregate prison term of 20 years to life. On
direct appeal, Evans challenged the legal sufficiency and manifest weight of the evidence
to sustain his convictions. He also raised an evidentiary issue and claimed the trial court
erred in failing to appoint an investigator. This court rejected Evans’ arguments and
affirmed in October 2011. See State v. Evans, 2d Dist. Montgomery No. 24032,
2011-Ohio-5415.
{¶ 3} Evans subsequently filed his pro se Civ.R. 60(B) motion for relief from
judgment in December 2014. He argued that the trial court lacked subject-matter
jurisdiction to convict him of felony murder. (Doc. #13). As cause for his delay in seeking
relief, Evans provided an affidavit alleging ineffective assistance of counsel. (Id.). The trial
court construed Evans’ motion as a post-conviction-relief petition under R.C. 2953.21 and
denied it as untimely, finding nothing to suggest that he was unavoidably prevented from
discovering the grounds for his petition sooner. (Doc. #14). The trial court also found
Evans’ arguments barred by res judicata. (Id.).
{¶ 4} Evans advances four assignments of error on appeal. First, he asserts that
his felony-murder conviction is void. In connection with this argument, he maintains that
untimeliness and res judicata do not bar a claim based on voidness. Second, he contends
the trial court erred in failing to conduct an evidentiary hearing or to issue findings of fact
and conclusions of law. Third, he elaborates on his argument about his felony-murder
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conviction being void. Fourth, he argues that the trial court erred in lowering the State’s
burden of proof to something less than beyond a reasonable doubt.
{¶ 5} Upon review, we conclude that the trial court properly treated Evans’ Civ.R.
60(B) motion as a petition for post-conviction relief. State v. Schlee, 117 Ohio St.3d 153,
2008-Ohio-545, 882 N.E.2d 431, syllabus (“The trial court may recast an appellant’s
motion for relief from judgment as a petition for postconviction relief when the motion has
been unambiguously presented as a Civ.R. 60(B) motion.”). Under R.C.
2953.21(A)(1)(a), “[a]ny person who has been convicted of a criminal offense * * * and
who claims that there was such a denial or infringement of the person’s rights as to render
the judgment void or voidable under the Ohio Constitution or the Constitution of the
United States, * * * may file a petition in the court that imposed sentence, stating the
grounds for relief relied upon, and asking the court to vacate or set aside the judgment or
sentence or to grant other appropriate relief.” As relevant here, Evans’ petition was
required to be filed “no later than three hundred sixty-five days after the date on which the
trial transcript [was] filed in the court of appeals in the direct appeal of the judgment of
conviction[.]” That transcript was filed in October 2010.
{¶ 6} Evans did not file his petition until December 2014. Therefore, as relevant
here, R.C. 2953.23(A)(1)(a) and (b) obligated him to show that he was unavoidably
prevented from discovering the facts upon which his petition relied and that but for
constitutional error at trial no reasonable fact-finder would have found him guilty. We
agree with the trial court that Evans failed to make the requisite showing to justify his
otherwise-tardy filing. Therefore, his petition was subject to being denied without a
hearing and without findings of fact or conclusions of law. State v. Garst, 2d Dist. Clark
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No. 2014 CA 64, 2014-Ohio-4704, ¶ 13, 15.
{¶ 7} Even if we construe Evans’ filing as one seeking to invoke the trial court’s
inherent power to vacate a truly void (as opposed to merely voidable) judgment, which
may be done at any time without regard to the requirements for statutory post-conviction
relief (see State v. Moore, 2d Dist. Clark No. 2013 CA 97, 2014-Ohio-4411, ¶ 13), his
arguments fail because his judgment of conviction is not void.
{¶ 8} Evans was convicted and sentenced for felony-murder in violation of R.C.
2903.02(B), which provides: “No person shall cause the death of another as a proximate
result of the offender’s committing or attempting to commit an offense of violence that is a
felony of the first or second degree and that is not a violation of section 2903.03 or
2903.04 of the Revised Code.” Here Evans was found guilty of felony murder as a
proximate result of committing felonious assault, a second-degree felony offense of
violence. Citing R.C. 2903.02(B), Evans argues, however, that his felony-murder
conviction is void ab initio because the State failed also to prove that the felonious-assault
offense was “not a violation of section 2903.03 or 2903.04 of the Revised Code.”
{¶ 9} We disagree with Evans’ argument that the State was required to prove that
felonious assault, a second-degree felony violation of R.C. 2903.11(A), “is not a violation
of R.C. 2903.03 or R.C. 2903.04.” The felony-murder statute simply precludes violations
of R.C. 2903.03 or R.C. 2903.04 from serving as the predicate felonies that may support a
felony-murder conviction. Nothing in R.C. 2903.02(B) precluded his felonious assault
conviction—a second-degree felony offence of violence—from supporting a
felony-murder conviction. In any event, Evans’ argument would not establish the
voidness of his judgment of conviction even if his argument had merit. Assuming, purely
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arguendo, that the State were required to prove to the jury that felonious assault is not a
violation of R.C. 2903.03 or R.C. 2903.04, the prosecution’s failure to prove an element of
an offense does not deprive a trial court of subject-matter jurisdiction or result in a void
judgment. Such a judgment would be merely voidable due to insufficiency of the
evidence.
{¶ 10} Evans also cites R.C. 2945.75(A)(2), which provides: “When the presence
of one or more additional elements makes an offense one of more serious degree * * * [a]
guilty verdict shall state either the degree of the offense of which the offender is found
guilty, or that such additional element or elements are present. Otherwise, a guilty verdict
constitutes a finding of guilty of the least degree of the offense charged.” Evans argues
that his felony-murder conviction is void for lack of subject-matter jurisdiction under R.C.
2945.75(A)(2) because “the prosecution failed to prove the additional factual element that
distinguishes felony-murder under R.C. 2903.02(B) from involuntary manslaughter per
O.R.C. 2903.04[.]” (Appellant’s brief at 8).
{¶ 11} Evans’ argument is unpersuasive for multiple reasons. First, R.C.
2945.75(A)(2) has nothing to do with his situation. It applies to different degree levels
within “an offense,” not to different offenses altogether. Second, even if R.C.
2945.75(A)(2) somehow did apply (which it does not), a violation of the statute is
something that must be raised on direct appeal. State v. Fair, 2d Dist. Montgomery No.
25300, 2013-Ohio-1923, ¶ 6. It does not render a judgment void or deprive a trial court of
subject-matter jurisdiction. Thus, res judicata would apply. Id.{¶ 12} Finally, we reject Evans’ argument about the trial court lessening the State’s
burden of proof in its jury instructions. In support, he claims the trial court failed to instruct
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the jury about the State’s burden to prove beyond a reasonable doubt (1) that felonious
assault is not a violation of R.C. 2903.03 or 2903.04 and (2) that felony murder has an
additional element that distinguishes it from involuntary manslaughter. This argument
about jury instructions fails for at least two reasons. First, it is premised on the substantive
arguments we have rejected above. Second, any alleged error in jury instructions is
something that must be raised on direct appeal. Again, res judicata would apply.
{¶ 13} For the foregoing reasons, we overrule Evans’ assignments of error and
affirm the judgment of the Montgomery County Common Pleas Court.
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FROELICH, P.J., and FAIN, J., concur.
Copies mailed to:
Mathias H. Heck
Carley J. Ingram
Richard Evans
Hon. Mary K. Huffman