State v. Smith , 2019 Ohio 1979 ( 2019 )

[Cite as State v. Smith, 2019-Ohio-1979.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 29241
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
DEMICO L. SMITH COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR-2011-12-3560-B
DECISION AND JOURNAL ENTRY
Dated: May 22, 2019
CALLAHAN, Presiding Judge.
{¶1} Appellant, Demico Smith, appeals an order that denied his “Motion to Vacate
Void Judgement [sic] for Lack of Subject Matter Jurisdiction.” This Court affirms.
I.
{¶2} In 2013, Mr. Smith pleaded guilty to aggravated burglary in violation of R.C.
2911.11(A)(2); aggravated robbery in violation of R.C. 2911.01(A)(1), with an accompanying
firearm specification; aggravated robbery in violation of R.C. 2911.01(A)(1); and kidnapping in
violation of R.C. 2905.01(A)(1). On February 6, 2013, the trial court sentenced him to a total
prison term of eight years. Mr. Smith did not file an appeal. On September 19, 2018, Mr. Smith
filed a “Motion to Vacate Void Judgement [sic] for Lack of Subject Matter Jurisdiction,” in
which he argued that the prosecution of his criminal case never commenced in accordance with
Crim.R. 6(F). The trial court denied his motion, and Mr. Smith filed this appeal. His two
assignments of error are rearranged to facilitate disposition.
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II.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING [MR.
SMITH’S] MOTION TO VACATE VOID JUDGMENT FOR LACK OF
SUBJECT MATTER JURISDICTION WHEN IT MISJUDGED [HIS]
ARGUMENT THAT THE INDICTMENT WAS NEVER RETURNED TO A
COMMON PLEAS COURT JUDGE AS AN ATTACK ON THE
SUFFICIENCY OF THE INDICTMENT, THUS, DENYING HIS CHALLENGE
ON SUBJECT MATTER JURISDICTION.
{¶3} Mr. Smith’s first assignment of error argues that the trial court erred by denying
his post-sentence motion. This Court disagrees.
{¶4} This Court must first consider the nature of the motion at issue in this appeal.
R.C. 2953.21(A)(1)(a) provides:
Any person who has been convicted of a criminal offense or adjudicated a
delinquent child 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.
Faced with an irregular motion, this Court may construe the motion “into whatever category
necessary to identify and establish the criteria by which the motion should be judged.” State v.
Schlee, 117 Ohio St. 3d 153, 2008-Ohio-545, ¶ 12. “A vaguely titled motion, including a motion
to correct or vacate a judgment or sentence,” may be treated as a petition for postconviction
relief under R.C. 2953.21(A)(1) when “(1) the motion was filed subsequent to a direct appeal, (2)
claimed a denial of constitutional rights, (3) sought to render the judgment void, and (4) asked
for a vacation of the judgment and sentence.” State v. Davis, 9th Dist. Medina No. 15CA0004-
M, 2015-Ohio-5182, ¶ 6, citing State v. Reynolds, 79 Ohio St. 3d 158, 160 (1997). Because a
defendant can file a petition for postconviction relief without pursuing a direct appeal, “[i]t
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follows that when a motion claims a denial of constitutional rights, seeks recognition that the
judgment is void, and requests that the judgment and sentence be vacated, the motion may be
construed as a petition for postconviction relief regardless of whether the defendant pursued a
direct appeal.” State v. Walker, 9th Dist. Summit No. 29151, 2019-Ohio-605, ¶ 7.
{¶5} In his motion, Mr. Smith went to great lengths to emphasize that it should not be
treated as a petition for postconviction relief. The manner in which a defendant captions or
classifies a filing, however, is not controlling: the classification of a motion rests on the type of
relief it seeks to obtain. See State v. Fryer, 5th Dist. Perry No. 18-CA-00005, 2018-Ohio-3024, ¶
20 (observing that the caption of a pro se pleading “[did] not conclusively define the nature of
the pleading.”). Compare Lingo v. State, 138 Ohio St. 3d 427, 2014-Ohio-1052, ¶ 38, citing State
ex rel. Zupancic v. Limbach, 58 Ohio St. 3d 130, 132 (1991); State v. Davidson, 17 Ohio St. 3d
132, 135 (1985); Dept. of Natural Resources v. Ebbing, 3d Dist. Mercer No. 10-13-24, 2015-
Ohio-471, ¶ 83, fn. 17. Motions that raise similar arguments have been characterized by other
courts as petitions for postconviction relief, and this Court agrees with that classification. See
Fryer at ¶ 22-27; State v. Barnette, 7th Dist. Mahoning No. 17 MA 0027, 2017-Ohio-9074, ¶ 1,
7-9; State v. Ali, 8th Dist. Cuyahoga No. 105534, 2017-Ohio-6894, ¶ 4-6.1 Although the trial
court rejected Mr. Smith’s motion without determining whether it should have been classified as
a petition for postconviction relief, this Court concludes that it is properly treated as such. See
State v. Cline, 2d Dist. Champaign No. 2013 CA 51, 2014-Ohio-4503, ¶ 7.
1
Courts have also concluded that the alleged failure to comply with the requirements of
Crim.R. 6(F) is unrelated to subject matter jurisdiction. See State v. Rickard, 6th Dist. Lucas No.
L-16-1043, 2016-Ohio-4755, ¶ 11-12; State v. Caldwell, 9th Dist. Summit No. 27003, 2014-
Ohio-1032, ¶ 8-10 (both concluding that the alleged lack of a signature by the grand jury
foreman under Crim.R. 6(F) was not a matter of subject matter jurisdiction.).
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{¶6} R.C. 2953.21(A)(2) provides that a petition for postconviction relief must be filed
within 365 days of the date on which the transcript is filed in a direct appeal or, if no direct
appeal is taken, within 365 days of the expiration of the time for filing an appeal. A trial court
may only entertain an untimely petition if
“the petitioner shows that [he] was unavoidably prevented from discovery of the
facts upon which [he] must rely to present the claim for relief,” or, subsequent to
the period prescribed in Section 2953.21(A)(2), “the United States Supreme Court
recognized a new federal or state right that applies retroactively to persons in the
petitioner’s situation, and the petition asserts a claim based on that right.”
(Alterations in original.) State v. Wesson, 9th Dist. Summit No. 28412, 2018-Ohio-834, ¶ 8,
quoting R.C. 2953.23(A)(1)(a). A petitioner, other than one who challenges a sentence of death,
must also demonstrate by clear and convincing evidence “that, but for constitutional error at trial,
no reasonable factfinder would have found the petitioner guilty of the offense of which the
petitioner was convicted.” R.C. 2953.23(A)(1)(b). A trial court does not have jurisdiction to
hear an untimely petition for postconviction relief unless the requirements of R.C. 2953.23(A)
are met. State v. Daniel, 9th Dist. Summit No. 26670, 2013-Ohio-3510, ¶ 9.
{¶7} Mr. Smith’s sentencing entry was dated February 6, 2013. He did not file a direct
appeal, so under R.C. 2953.21(A)(2), he had until March 7, 2014, to petition for postconviction
relief.2 Mr. Smith filed his petition on September 19, 2018, more than four years after that
deadline passed. He did not demonstrate by clear and convincing evidence that the requirements
of R.C. 2953.23(A)(1) were met and, consequently, the trial court did not have jurisdiction to
entertain his untimely petition. See Daniel at ¶ 9. Mr. Smith’s second assignment of error is
overruled.
2
This Court notes that March 7, 2014, was a Saturday. See generally R.C. 1.14; Civ.R.
6(A).
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ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERR[ED] IN DENYING [MR. SMITH’S] MOTION TO
VACATE VOID JUDGMENT FOR LACK OF SUBJECT MATTER
JURISDICTION WHEN IT DID NOT ACKNOWLEDGE OR CONSIDER [HIS]
MOTION IN OPPOSITION TO THE STATE’S MEMORANDUM, IN
VIOLATION OF THE DUE PROCESS CLAUSE AND EQUAL PROTECTION
CLAUSE GROUNDED IN THE FOURTEENTH AMENDMENT.
{¶8} Mr. Smith’s first assignment of error argues that the trial court erred by denying
his motion without giving due consideration to the reply brief that he filed in response to the
State’s brief in opposition. The trial court did not have jurisdiction to consider his motion in the
first instance because it was properly classified as an untimely petition for postconviction relief,
so his first assignment of error is moot. See App.R. 12(A)(1)(c).
III.
{¶9} Mr. Smith’s second assignment of error is overruled. His first assignment of error
is moot. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
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instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
LYNNE S. CALLAHAN
FOR THE COURT
CARR, J.
HENSAL, J.
CONCUR.
APPEARANCES:
DEMICO L. SMITH, pro se, Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting, Attorney, for Appellee.