State v. Jones , 2022 Ohio 1674 ( 2022 )

[Cite as State v. Jones, 2022-Ohio-1674.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110855
v. :
LEE JONES, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: May 19, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-16-608422-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Brandon A. Piteo, Assistant Prosecuting
Attorney, for appellee.
Lee Jones, pro se.
SEAN C. GALLAGHER, A.J.:
Lee Jones appeals the denial of his motion to vacate a void judgment
and sentence. For the following reasons, we affirm.
Jones is a convicted serial rapist. State v. Jones, 8th Dist. Cuyahoga
No. 105801, 2018-Ohio-850, ¶ 14. In 2016, he was serving a 50-year aggregate term
of imprisonment for five separate rape convictions. Id. at ¶ 3. That same year, Jones
was indicted on ten new charges stemming from the rape or attempted rape of two
other victims, which resulted in his ninth and tenth convictions for rape. Id. at ¶ 5,
15. Jones pleaded guilty to two counts of rape, in violation of R.C. 2907.02(A)(2),
with the state agreeing to delete the sexually violent predator specifications
attendant to the rape charges along with the remaining counts. Id. According to the
state, in describing Jones’s comments at the sentencing hearing, Jones
acknowledged that the DNA evidence in one of the rape cases was limited to his
blood deposits from a victim who fought back against Jones’s attack. With respect
to the other victim, Jones claimed the sexual conduct was consensual. In 2017,
Jones was sentenced to serve three years in prison for both counts, consecutive to
the prison terms he was then serving. Id. at ¶ 6.
Approximately five years later, the state filed a “supplemental
response to request for discovery under Rule 16” attaching a notification from the
Bureau of Criminal Investigation that “a preliminary association was made between
Ohio Bureau of Criminal Investigation – Richfield specimen 14-306858 1.4.1F2
Sak+ and” another individual.1 The identification occurred in February 2019 from
a search of Ohio’s State DNA Index System, but the record does not provide any
information as to the reason for the post hoc, supplemental discovery being filed
years after the final convictions. See Crim.R. 16(L) (trial court has authority to
1 Jones attached a copy of the State Hit Notification to his motion to vacate the void
conviction and sentence.
regulate discovery “during the course of the proceedings”); State v. Hale, 8th Dist.
Cuyahoga No. 103654, 2016-Ohio-5837, ¶ 52 (offenders have no right to discovery,
under Crim.R. 16 or any other rule, in postconviction proceedings), citing State ex
rel. Love v. Cuyahoga Cty. Prosecutor’s Office, 87 Ohio St.3d 158, 718 N.E.2d 426(1999), State v. Bryan, 8th Dist. Cuyahoga No. 93038, 2010-Ohio-2088, ¶ 45, and
State v. Taylor, 8th Dist. Cuyahoga No. 80271, 2002-Ohio-2742, ¶ 19. And further,
Jones does not specify to which victim the latest DNA identification applies, if any,
or how any further testing impacts the factual foundation of his guilty pleas.
Nevertheless, Jones filed a motion to vacate a void judgment and
sentence upon receiving the supplemental discovery, claiming the preliminary
match of another individual on the unspecified DNA material was dispositive proof
of his innocence with respect to both victims. In that motion, Jones expressly stated
that the motion was not filed under Ohio’s postconviction relief statute, R.C. 2953.21
et al., but was to be construed as a motion challenging the legal validity of his
convictions, under the trial court’s inherent authority to vacate a void judgment.
Jones concedes that should his motion to vacate a void judgment be recast as a
petition for postconviction relief, his motion would be untimely under R.C. 2953.21
and 2953.23. Reply Brief at p. 1 (“If the Court would follow the State’s suggestion
[to recast the motion to vacate as a petition for postconviction relief], then Jones’s
Petition for Post-Conviction Relief pursuant to R.C.§2953.21 and §2953.23 would
be untimely”). However, the primary focus of Jones’s request is upon his guilty plea
and whether he should be permitted to withdraw that plea based on the newly
discovered evidence or because his trial counsel provided ineffective assistance by
“coercing” Jones into taking the state’s plea offer. The trial court denied Jones’s
motion.
Jones’s claims with respect to the legal validity of the convictions are
misplaced. In State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d
248, and State v. Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776,
the Ohio Supreme Court held that “sentences based on an error, including sentences
in which a trial court fails to impose a statutorily mandated term, are voidable if the
court imposing the sentence has jurisdiction over the case and the defendant.”
Henderson at ¶ 1; see also State v. Stewart, 8th Dist. Cuyahoga No. 109498, 2020-
Ohio-6743, ¶ 5. If the error rendered the defendant’s conviction voidable, the error
cannot be corrected through a postconviction proceeding or through another form
of collateral attack. Stewart at ¶ 5, citing Henderson at ¶ 43. If a conviction is
considered void, a court possesses continuing jurisdiction to correct the sentence.
State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d
263, ¶ 19. Before the combination of Harper and Henderson
(“Harper/Henderson”), Ohio followed an expanded notion of what constituted a
void act; a sentence imposed in violation of law was considered void and subject to
collateral attack in postconviction proceedings. Under Harper/Henderson, the
Ohio Supreme Court returned to the traditional definition of void. Errors, other
than challenging the trial court’s subject matter jurisdiction, can only be corrected
through a direct appeal rather than through a collateral attack in a postconviction
proceeding.
In this case, Jones unsuccessfully challenged his final conviction in a
direct appeal, and his current claim of actual innocence does not challenge the trial
court’s subject matter jurisdiction over the underlying criminal action. As a result,
our inquiry is limited. Jones has not identified any basis to claim that his conviction
is void as defined by Harper/Henderson. App.R. 16(A)(7). Instead, Jones’s claim
rests upon the notion that newly discovered evidence potentially impacts proof of
his guilt. Jones, however, pleaded guilty to the two rape convictions, admitting to
the facts of his having committed the crimes. Nothing from the record demonstrates
that Jones’s plea was contingent on protestations of innocence as recognized under
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (“while
most pleas of guilty consist of both a waiver of trial and an express admission of
guilt, the latter element is not a constitutional requisite to the imposition of criminal
penalty”). Because Jones’s convictions are not potentially void based on the
arguments he presents, we must first categorize the arguments in order to determine
the appropriate standard of review.
Our inquiry begins under the notion that this case is not about the
validity of the underlying proceeding leading to the conviction. It is about
determining whether a trial court has continuing jurisdiction after entering the final
entry of convictions to permit Jones to withdraw his guilty plea or otherwise reopen
the underlying case. State v. Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, 121
N.E.3d 351, ¶ 38-41 (trial court lacked jurisdiction to consider the defendant’s claim
as being either a petition for postconviction relief or a motion for new trial under
Crim.R. 33, and without another basis to secure the trial court’s jurisdiction, the
motion must be denied). Once a court of competent jurisdiction renders a final
sentence in a criminal action, that court’s continuing jurisdiction to act in
postconviction proceedings is limited. State v. Simpkins, 117 Ohio St.3d 420, 2008-
Ohio-1197, 884 N.E.2d 568, ¶ 23, citing Zaleski at ¶ 19, and State v. Jordan, 104
Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 23. There must be a
jurisdictional basis for the trial court to offer the requested relief. Apanovitch at
¶ 38-41.
A defendant can invoke the trial court’s limited jurisdiction to vacate
a final conviction in several ways, including but not limited to, through (1) filing a
motion to correct a void judgment; (2) filing a timely or successive petition for
postconviction relief under R.C. 2953.21 et al.; (3) filing a motion for a new trial
under Crim.R. 33; (4) filing a postsentence motion to withdraw a plea under
Crim.R. 32.1; or (5) seeking relief under Ohio’s postconviction DNA testing statutes
R.C. 2953.71 through 2953.84. Because the trial court’s jurisdiction to consider
postconviction motions or petitions is limited, the initial inquiry is whether the trial
court may invoke its continuing jurisdiction to consider the postconviction motion
seeking to vacate the final conviction. In this regard, “[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. Schlee, 117 Ohio St.3d 153, 2008-Ohio-
545, 882 N.E.2d 431, ¶ 12.
Jones pleaded guilty to the two rape convictions, and as such, he
cannot avail himself of an untimely or successive petition for postconviction relief,
or a delayed motion for new trial under Crim.R. 33. That latter conclusion is self-
evident given Jones’s guilty pleas, but in order for the trial court to entertain an
untimely or successive petition for postconviction relief, the petitioner must
demonstrate that he was both unavoidably prevented from discovery of the facts
upon which the claimed relief is sought and but for the “error at trial, no reasonable
factfinder would have found the petitioner guilty.” R.C. 2953.23(A)(1). Under the
unambiguous language of the statute, a petitioner who pleaded guilty cannot seek
an untimely or successive petition for postconviction relief since he is unable to
demonstrate an error at trial upon which the factfinder would have found him not
guilty.
Further, Jones claims that he is innocent of the two rape charges
because another person was identified by DNA testing of an unidentified sample of
DNA material with respect to an unspecified case or victim. Under
R.C. 2953.23(A)(1)(b), the petitioner must demonstrate a “constitutional error at
trial.” Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, 121 N.E.3d 351, at ¶ 26.
“Actual innocence” is not a constitutional claim, and therefore, it does not satisfy the
requirements for an untimely or successive petition for postconviction relief even if
Jones had not pleaded guilty admitting to the facts of his crimes. Id. Jones cannot
avail himself of Ohio’s postconviction relief statutes.
The supplemented discovery in this case also cannot be considered a
product of testing performed under R.C. 2953.71 through 2953.84, Ohio’s
postconviction DNA testing statutes. Those provisions also do not apply to
offenders who plead guilty to the crimes. Under R.C. 2953.72(C), an offender is
“eligible” to seek postconviction DNA testing only if, in pertinent part, he was found
guilty by a “judge or jury” of the felony offense. Offenders who plead guilty or no
contest to the felony offense are ineligible to pursue postconviction DNA testing
under the unambiguous language of the statute. State v. Harris, 8th Dist. Cuyahoga
No. 103924, 2016-Ohio-4707, ¶ 19; State v. Lucas, 9th Dist. Lorain No. 11CA100050,
2012-Ohio-2826, ¶ 8.2
With limited options available to secure the trial court’s continuing
jurisdiction to substantively provide Jones relief through vacating the final
convictions, and in light of Jones’s focus on the validity of his guilty plea, the closest
analogue upon which the trial court maintained continuing its jurisdiction is a
2 At one time this was possible under R.C. 2953.82. Under R.C. 2953.82, an
offender who pleaded guilty or no contest to the felony could be deemed eligible. State v.
Cordell, 2d Dist. Greene No. 2010 CA 19, 2011-Ohio-1735, ¶ 15. The prosecutor, however,
had sole discretion as to whether an offender who pleaded guilty or no contest could pursue
postconviction DNA testing. R.C. 2953.82(D), eff. July 11, 2006. The Ohio Supreme Court
declared R.C. 2953.82(D) unconstitutional, severing it from the statute. State v. Sterling,
113 Ohio St.3d 255, 2007-Ohio-1790, 864 N.E.2d 630, ¶ 34. The legislature, through 2009
S.B. 77, repealed R.C. 2953.82 in its entirety effective July 6, 2010, with no similar provision
taking its place.
postsentence motion to withdraw his guilty plea under Crim.R. 32.1.3 Without
recasting Jones’s motion as filed under Crim.R. 32.1, we would not have an appellate
standard upon which the validity of the trial court’s decision could be reviewed. At
the least, Jones has not identified any other basis for the trial court to assert
continuing jurisdiction to reopen his final convictions and we are left to determine
that basis of our own accord. App.R. 16(A)(7).
“A motion to withdraw a plea of guilty or no contest may be made only
before sentence is imposed; but to correct manifest injustice the court after sentence
may set aside the judgment of conviction and permit the defendant to withdraw his
or her plea.” Crim.R. 32.1. “Manifest injustice” is defined as a “‘fundamental flaw
in the path of justice so extraordinary that the defendant could not have sought
redress from the resulting prejudice through another form of application reasonably
available to him or her.’” State v Cottrell, 2010-Ohio-5254, ¶ 15, quoting State v.
Sneed, 8th Dist. Cuyahoga No. 80902, 2002-Ohio-6502. “It has also been defined
as ‘a clear or openly unjust act,’ which exists only in extraordinary cases.” Id. at ¶ 15,
citing State v. Owens, 8th Dist. Cuyahoga No. 94152, 2010-Ohio-3881, and State ex
rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 699 N.E.2d 83 (1998); State v.
3 The Ohio Supreme Court has accepted the following proposition of law for review:
“A sentence that exceeds the statutory maximum for the offense of conviction must be
corrected by a trial court even when the sentence has not been challenged on direct appeal
and the time for noting an appeal has passed.” State v. Stansell, 165 Ohio St.3d 1403, 2021-
Ohio-3631, 175 N.E.3d 547, 547. Resolution of that proposition may impact our conclusion
with respect to the jurisdictional limitations on a trial court’s review of postconviction
motions.
Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977). “And generally, res judicata bars
a defendant from raising claims in a Crim.R. 32.1 post-sentencing motion to
withdraw a guilty plea that he raised or could have raised on direct appeal.” State v.
Straley, 159 Ohio St.3d 82, 2019-Ohio-5206, 147 N.E.3d 623, ¶ 15, citing State v.
Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 59.
Appellate review of the denial of a postsentence motion to withdraw
a guilty plea occurs under the abuse-of-discretion standard of review. Straley at
¶ 15, citing State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph two
of the syllabus, and State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, 820
N.E.2d 355, ¶ 32. “A trial court is not required to hold a hearing on every
postsentence motion to withdraw a guilty plea”; a hearing is only required “if the
facts alleged by the defendant, accepted as true, would require that the defendant be
allowed to withdraw the plea.” State v. D-Bey, 8th Dist. Cuyahoga No. 109000,
2021-Ohio-60, ¶ 57, citing State v. Norman, 8th Dist. Cuyahoga No. 105218, 2018-
Ohio-2929, ¶ 16, and State v. Vihtelic, 8th Dist. Cuyahoga No. 105381, 2017-Ohio-
5818, ¶ 11.
In this case, Jones contends that the implication of another person
through DNA matching demonstrably proves his innocence as to both rape
convictions, which constitutes a manifest injustice sufficient to warrant the
withdrawal of his guilty plea in this case. The trial court, however, was precluded
from granting Jones relief.
According to well-settled Ohio law, a trial court lacks authority to
consider a motion to withdraw a guilty plea following an affirmance of an offender’s
convictions by an appellate court. Crim.R. 32.1 “‘does not confer upon the trial court
the power to vacate a judgment which has been affirmed by the appellate court, for
this action would affect the decision of the reviewing court, which is not within the
power of the trial court to do.’” Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935
N.E.2d 9, at ¶ 61, quoting State ex rel. Special Prosecutors v. Judges, Belmont Cty.
Court of Common Pleas, 55 Ohio St.2d 94, 97-98, 378 N.E.2d 162 (1978). In other
words, once the convictions have been affirmed on appeal, the trial court no longer
may entertain a postsentence motion to withdraw a guilty plea under Crim.R. 32.1.
See also State v. Hill, 1st Dist. Hamilton No. C-190337, 2020-Ohio-3271, ¶ 10; State
v. Carter, 3d Dist. Allen No. 1-11-36, 2011-Ohio-6104, ¶ 11; State v. Caston, 6th Dist.
Erie No. E-11-077, 2012-Ohio-5260, ¶ 10; State v. Smith, 7th Dist. Mahoning No. 14
MA 65, 2015-Ohio-4809, ¶ 5; State v. Bains, 8th Dist. Cuyahoga No. 98845, 2013-
Ohio-2530, ¶ 21; Ohio v. Torres, 9th Dist. Medina No. 19CA0076-M, 2020-Ohio-
3691, ¶ 7; State v. Davic, 2021-Ohio-131, 166 N.E.3d 681, ¶ 16-22 (10th Dist.)
(concluding that Special Prosecutors has not been overruled by the Ohio Supreme
Court); State v. Peters, 12th Dist. Clermont No. CA2015-07-066, 2016-Ohio-5288,
¶ 8.
In Jones, 8th Dist. Cuyahoga No. 105801, 2018-Ohio-850, Jones’s
convictions for the two counts of rape were affirmed. The trial court, therefore,
lacked the power to thereafter vacate the convictions. In addition, and solely for the
sake of the discussion, even if the trial court possessed such a power, the claims
Jones advances based on the lack of DNA evidence were known to him at the time
of his sentencing based on the state’s uncontested recitation of Jones’s sentencing
statements. Accordingly, Jones’s current arguments are precluded under the
doctrine of res judicata since he could have raised the same arguments challenging
the validity of his guilty plea in the direct appeal.
There is no other basis upon which the trial court could have afforded
Jones his requested relief. Jones’s assignments of error are overruled.
We affirm.
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.
__________________________________
SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE
MARY EILEEN KILBANE, J., and
EMANUELLA D. GROVES, J., CONCUR