State v. Andrews , 2022 Ohio 4209 ( 2022 )

[Cite as State v. Andrews, 2022-Ohio-4209.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111455
v. :
CE’MATIZEA ANDREWS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: November 23, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-632567-B
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Frank Romeo Zeleznikar, Assistant
Prosecuting Attorney, for appellee.
Ce’Matizea Andrews, pro se.
CORNELIUS J. O’SULLIVAN, JR., J.:
Defendant-appellant Ce’Matizea Andrews, pro se, appeals the trial
court’s February 17, 2022 judgment denying his motion for resentencing. After a
careful review of the facts and pertinent law, we affirm the trial court’s judgment.
Factual and Procedural History
In October 2018, appellant and six co-defendants were charged in a
multi-count indictment. Appellant was charged with the following 13 crimes: one
count of aggravated murder (Count 1), one count of murder (Count 2), four counts
of attempted murder (Counts 3-6), one count of discharge of a firearm on or near
prohibited premises (Count 7), four counts of felonious assault (Counts 8-11), one
count of improperly handling firearms in a motor vehicle (Count 12), and one count
of having weapons while under disability (Count 14). Many of the counts included
one-, three-, and five-year firearm specifications.
The facts giving rise to the charges were set forth in appellant’s direct
appeal as follows:
The charges arose out of a shootout that occurred in the area of Lee
Road and Harvard Avenue in Cleveland on June 20, 2018, resulting in
the death of a nine-year-old girl, S.N. S.N. was sitting in the backseat
of her mother’s vehicle, waiting for her mother to retrieve her brother
from a nearby boxing club. [Appellant] initiated the shootout, firing a
gun out of the window of a moving vehicle at a group of males with
whom [appellant] had a verbal altercation earlier that day. Although
no one was struck by [appellant’s] gunfire, when members of the group
returned fire on [appellant], a bullet struck S.N. in the head, killing her.
State v. Andrews, 8th Dist. Cuyahoga No. 110047, 2021-Ohio-1719, ¶ 3.
After negotiations with the state, appellant pled guilty to an amended
Count 1, involuntary manslaughter in violation of R.C. 2903.04(A), a first-degree
felony, with three-and five-year firearm specifications and amended Count 8,
attempted felonious assault in violation of R.C. 2923.02 and 2903.11, a third-degree
felony. The remaining counts against appellant were dismissed. Amended Count 1
related to the death of S.N., the nine-year old victim. Amended Count 8 related to
the attempted felonious assault of three males at whom appellant had fired. As part
of the plea agreement, the parties agreed to a jointly recommended sentence of
18 to 22 years and that appellant would not be subject to judicial release.
The trial court sentenced appellant to an aggregate prison term of
22 years, which consisted of 19 years on amended Count 1 (eight years on the two
firearm specifications to be served prior to and consecutive to 11 years on the
underlying offense) and a consecutive 36-month sentence on amended Count 8.
Appellant filed a direct appeal, challenging his sentence. The
transcripts were filed with this court on November 30, 2020. This court affirmed
appellant’s sentence. See Andrews, 8th Dist. Cuyahoga No. 110047, 2021-Ohio-
1719, at ¶ 1, 21.
On December 22, 2021, appellant, pro se, filed a motion for
resentencing in the trial court. The trial court treated the motion as a petition for
postconviction relief and denied it without a hearing because it was not compliant
with R.C. 2953.23 and did not raise substantive grounds for relief. In this appeal,
appellant raises the following assignment of error for our review: “A trial court
commits error when it fails to consider that Defendant-Appellant’s ‘Defendant’s pro
se Motion for Resentencing’ is different and separate from a postconviction relief
proceeding where the trial court should be aware of this filing.”
Law and Analysis
Motion for Resentencing Properly Treated as Petition for
Postconviction Relief
In his assignment of error, appellant contends that the trial court erred
in treating his motion as a petition for postconviction relief. We disagree.
It is well established that “‘[c]ourts may recast irregular motions into
whatever category necessary to identify and establish the criteria by which the
motion should be judged.’” State v. Caldwell, 2d Dist. Montgomery No. 24333,
2012-Ohio-1091, ¶ 3, quoting State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545,
882 N.E.2d 431, ¶ 12, citing State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, 773
N.E.2d 522, ¶ 10. “Where a criminal defendant, subsequent to his or her direct
appeal, files a motion seeking vacation or correction of his or her sentence on the
basis that his or her constitutional rights have been violated, such a motion is a
petition for postconviction relief as defined in R.C. 2953.21.” State v. Reynolds, 79
Ohio St.3d 158, 679 N.E.2d 1131 (1997), syllabus.
R.C. 2953.21 states, in pertinent part, that:
[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. * * *.
R.C. 2953.21(A)(1)(a).
In Reynolds, the court applied R.C. 2953.21(A)(1) to a “Motion to
Correct or Vacate Sentence” in order to determine whether the motion qualified as
a petition for postconviction relief. The court concluded that the motion was a
petition for postconviction relief despite its styling, because it: “(1) [was] filed
subsequent to Reynolds’s direct appeal, (2) claimed a denial of constitutional rights,
(3) sought to render the judgment void, and (4) asked for vacation of the judgment
and sentence.” Id. at 160.
This court has consistently used the analysis set forth in Reynolds
when determining whether an irregular motion is properly construed as a petition
for postconviction relief. See State v. Jones, 8th Dist. Cuyahoga No. 110855, 2022-
Ohio-1674, ¶ 8; State v. Rackley, 8th Dist. Cuyahoga No. 102962, 2015-Ohio-4504,
¶ 9; State v. Jones, 8th Dist. Cuyahoga No. 99391, 2013-Ohio-3434, ¶ 8; and State
v. Hicks, 8th Dist. Cuyahoga No. 99119, 2013-Ohio-1904, ¶ 7.
In this case, appellant’s “motion to resentence”: (1) was filed after he
had already filed a direct appeal, (2) claimed a denial of his constitutional right to
effective assistance of counsel, (3) sought to render the trial court’s judgment
voidable, and (4) asked for the court to vacate his conviction and sentence.
Therefore, we conclude that appellant’s motion fell under the definition of a
petition for postconviction relief as found in R.C. 2953.21(A)(1)(a). Accordingly,
the trial court correctly construed the motion as a petition for postconviction relief.
Appellant cites to several cases in support of his position that his
motion was not a petition for postconviction relief.1 Those cases are distinguishable
from this case, as they all concern the vacation of sentences because of errors in the
imposition of postrelease control. Moreover, the relevance of those cases is moot
1 The cases are: State v. Scott, 6th Dist. Erie No. E-09-048, 2010-Ohio-297; State
v. Holcomb, 184 Ohio App.3d 577, 2009-Ohio-3187, 921 N.E.2d 1077 (9th Dist.); and
State v. Wheeler, 9th Dist. Summit No. 24488, 2009-Ohio-3557.
in light of the Ohio Supreme Court’s decision in State v. Harper, 160 Ohio St.3d
480, 2020-Ohio-2913, 159 N.E.3d 248, which held that when a sentencing court
has jurisdiction over the subject matter of the case or personal jurisdiction over the
defendant, errors in the imposition of postrelease control renders the sentence
voidable, not void, and the sentence may be set aside if successfully challenged on
direct appeal. Thus, appellant’s reliance on those cases is misplaced.
Petition Properly Denied as Untimely and Barred Under the Doctrine
of Res Judicata
The trial court properly denied the petition as noncompliant with
R.C. 2953.23 and barred under the doctrine of res judicata.
A petition for postconviction relief is a collateral civil attack on a
criminal judgment, not an appeal of the judgment. State v. Bell, 8th Dist. Cuyahoga
No. 105000, 2017-Ohio-7168, ¶ 10. Postconviction relief is not a constitutional
right; it is a narrow remedy that gives the petitioner no more rights than those
granted by statute. State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905(1999). It is a means to resolve constitutional claims that cannot be addressed on
direct appeal because the evidence supporting the claims is outside the record.
State v. Milanovich, 42 Ohio St.2d 46, 325 N.E.2d 540 (1975).
A criminal defendant seeking to challenge his or her conviction
through a petition for postconviction relief is not automatically entitled to an
evidentiary hearing. Calhoun at 282, citing State v. Cole, 2 Ohio St.3d 112, 443
N.E.2d 169 (1982). Before granting an evidentiary hearing on the petition, the trial
court must determine whether there are substantive grounds for relief, i.e., whether
there are grounds to believe there was such a denial or infringement of the rights of
the petitioner so as to render the judgment void or voidable under the Ohio or
United States Constitutions. Calhoun at 283. In determining whether there are
substantive grounds for relief, the court must consider the petition, the supporting
affidavits, and the documentary evidence, as well as all the files and records
pertaining to the proceedings. R.C. 2953.21(D).
A trial court’s decision granting or denying a postconviction petition
filed pursuant to R.C. 2953.21 should be upheld absent an abuse of discretion. State
v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58. The trial
court does not abuse its discretion in dismissing a petition without a hearing if
(1) the petitioner fails to set out sufficient operative facts to establish substantive
grounds for relief, or (2) the operation of res judicata prohibits the claims made in
the petition. State v. Abdussatar, 8th Dist. Cuyahoga No. 92439, 2009-Ohio-5232,
¶ 15.
R.C. 2953.21(A)(2) provides that a petition for postconviction relief
must be filed “no later than three hundred sixty-five days after the date on which
the trial transcript is filed in the court of appeals in the direct appeal of the
judgment of conviction * * *.” The transcript was filed in this court in appellant’s
direct appeal on November 30, 2020. Appellant filed his petition on December 22,
2021; therefore, appellant’s petition was untimely.
R.C. 2953.23(A)(1) authorizes a trial court to address the merits of an
untimely filed petition for postconviction relief only if both of the following apply:
(a) Either the petitioner shows that the petitioner was unavoidably
prevented from discovery of the facts upon which the petitioner must
rely to present the claim for relief, or, subsequent to the period
prescribed in division (A)(2) of section 2953.21 of the Revised Code or
to the filing of an earlier petition, 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.
(b) The petitioner shows 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
or, if the claim challenges a sentence of death that, but for
constitutional error at the sentencing hearing, no reasonable factfinder
would have found the petitioner eligible for the death sentence.
R.C. 2953.23(A)(1)(a) and (b).
Appellant is unable to satisfy either requirement. He was not
unavoidably prevented from discovering facts, no new right retroactively applies to
his case, and he has not demonstrated by clear and convincing evidence that, but
for a constitutional error, no reasonable factfinder would have found him guilty.
Therefore, his petition was untimely, not subject to exception, and the trial court
properly dismissed it without a hearing.
Moreover, even if his petition were timely, the doctrine of res judicata
bars appellant from raising his claim of ineffective assistance of counsel. Under the
doctrine of res judicata,
a final judgment of conviction bars a convicted defendant who was
represented by counsel from raising and litigating in any proceeding
except an appeal of that judgment, any defense or any claimed lack of
due process that was raised or could have been raised by the defendant
at the trial which resulted in that judgment of conviction, or on an
appeal from that judgment.
State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the
syllabus.
In sum, res judicata bars the further litigation of issues that were or
could have been raised previously in a direct appeal. State v. Leek, 8th Dist.
Cuyahoga No. 74338, 2000 Ohio App. LEXIS 2909 (June 21, 2000), citing Perry
at id. The evidence supporting appellant’s ineffective assistance of counsel claim is
contained within the record and, thus, any ineffective assistance of counsel claim
should have been brought on direct appeal. Because appellant did not do so, he is
now precluded by res judicata from raising the issue. Accordingly, the trial court
did not abuse its discretion in denying appellant’s ineffective assistance of counsel
claim as untimely filed and barred by res judicata.
The sole assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
______________________________
CORNELIUS J. O’SULLIVAN, JR., JUDGE
FRANK DANIEL CELEBREZZE, III, P.J., and
EILEEN A. GALLAGHER, J., CONCUR