State v. Baker , 2023 Ohio 1266 ( 2023 )

[Cite as State v. Baker, 2023-Ohio-1266.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 30263
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JERMAINE C. BAKER COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 07 01 0186(A)
DECISION AND JOURNAL ENTRY
Dated: April 19, 2023
CARR, Presiding Judge.
{¶1} Defendant-Appellant Jermaine Baker appeals the judgment of the Summit County
Court of Common Pleas. This Court affirms.
I.
{¶2} This Court summarized the history of this matter in the last appeal:
Following a 2007 jury trial, Baker was convicted of multiple felonies including
kidnapping, aggravated burglary, aggravated robbery, felonious assault, robbery,
and having a weapon while under disability. Firearm, repeat violent offender, and
body armor specifications accompanied several of the charges. Baker was
sentenced April 30, 2007, and multiple nunc pro tunc entries were issued thereafter,
including one journalized December 14, 2007. Baker appealed his convictions, and
this Court affirmed the trial court’s judgment. See State v. Baker, 9th Dist. Summit
No. 23840, 2008-Ohio-1909.
Subsequently, Baker filed several post-conviction motions. A 2011 motion resulted
in a correction to Baker’s post-release control. In 2018, Baker filed a motion for
resentencing arguing that his sentences were void or contrary to law and that the
December 14, 2007 judgment entry was not a final appealable order. Baker alleged
that the trial court was required to impose post-release control as to all of his
convictions, that multiple consecutive sentences for the firearm and body armor
specifications were contrary to law, and that the trial court failed to merge allied
offenses. The trial court denied the motion. While Baker filed a notice of appeal
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in the trial court, the appeal was not perfected, and an appeal was never docketed
in this Court.
In December 2020, Baker filed a motion titled: “Defendant’s Motion to Strike and
Vacate the Supposed Jury Verdicts in this Case, to Vacate the Supposed Conviction
and Sentencing Entry of December 14, 2007, and Motion for the Immediate Release
of the Defendant from Prison, all for Cause Shown.” In that motion Baker argued
that there was no final appealable order because the trial court failed to sentence
Baker on the repeat violent offender specifications, the trial court imposed multiple
consecutive sentences on multiple firearm and body armor specifications, and the
trial court sentenced Baker to a void indefinite prison sentence of 32 years with
parole eligibility after 20 years. In addition, Baker contended that he was never
properly charged and never arraigned on the body armor specifications. Finally,
Baker maintained that the trial court was required to determine whether Baker was
a repeat violent offender, not the jury. The State opposed the motion. It argued
that Baker’s motion was an untimely and successive petition for post-conviction
relief and that his arguments were unfounded. Ultimately, the trial court[, on
February 16, 2021,] denied the motion.
State v. Baker, 9th Dist. Summit No. 29943, 2021-Ohio-3991, ¶ 2-4.
{¶3} Baker then appealed to this Court. Id. at ¶ 5. While the appeal was pending in this
Court, on July 8, 2021, Baker filed a motion in the trial court titled “Defendant’s Motion to Re-
Open his Motion to Vacate the Supposed Conviction and Sentencing Entry of 12/14/07, or in the
Alternative, Motion for Relief from Judgment filed 2/16/21[.]” Baker asserted that, upon
reviewing the case for the appeal, he became aware of additional errors made by the trial court
which he believed rendered his sentence void and/or not final. He asked that the trial court vacate
certain convictions and sentences and release him from prison. The State opposed Baker’s motion.
In his reply brief, Baker asserted the trial court’s errors violated his constitutional rights.
{¶4} Baker also filed a motion in this Court seeking to have this Court stay the appeal
and remand the matter to the trial court so it could rule on his July 8, 2021 motion. This Court
denied Baker’s motion. State v. Baker, 9th Dist. Summit No. 29943 (July 18, 2021). On November
10, 2021, this Court affirmed the trial court’s judgment with respect to Baker’s December 2020
motion. See Baker, 2021-Ohio-3991, at ¶ 1. In so doing, we concluded that Baker’s motion was
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an untimely and successive petition for post-conviction relief which the trial court lacked authority
to entertain. See id. at ¶ 10-11. On February 17, 2022, the trial court denied Baker’s July 8, 2021
motion.
{¶5} Baker has appealed, raising three assignments of error for this Court’s review. To
facilitate review of this appeal, this Court will consolidate Baker’s assignments of error.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT AND
ABUSED ITS DISCRETION WHEN IT DENIED DEFENDANT’S MOTION TO
RE-OPEN HIS MOTION TO VACATE. MR. BAKER’S SENTENCING IS
VOID, AND THE DECEMBER 14, 2007 JUDGMENT ENTRY OF SENTENCE
IS VOID. DEFENDANT WAS SENTENCED TO AN ILLEGAL HYBRID
INDEFINITE SENTENCE, USING THE IMPROPER SENTENCING
PACKAGE DOCTRINE, WHERE THE JUDGE DID NOT SENTENCE ON
INDIVIDUAL COUNTS, AND WHERE THE JUDGE’S STATEMENTS AT
SENTENCING DO NOT MATCH THE SENTENCING ENTRY.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT AND
ABUSED ITS DISCRETION WHEN IT DENIED DEFENDANT’S MOTION TO
RE-OPEN. MR. BAKER’S SENTENCING IS VOID, AND THE DECEMBER
14, 2007 JUDGMENT ENTRY OF SENTENCE IS VOID. THE RVO
“CONVICTIONS” WERE VOID AND TAINTED THE JURY, THE TRIAL
COURT THEN FAILED TO DISPOSE OF THE RVO “CONVICTIONS”
ATTACHED TO COUNTS 1, 2, 3, 4, 9, 11, 12, 13, 14, 23, 24, AND FAILED TO
PROPERLY DISPOSE OF ALL COUNTS IN THE INDICTMENT.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT AND
ABUSED ITS DISCRETION WHEN IT DENIED DEFENDANT’S MOTION TO
RE-OPEN. MR. BAKER’S SENTENCING IS VOID, AND THE DECEMBER
14, 2007 JUDGMENT ENTRY OF SENTENCE IS VOID. THERE WAS NO
SUPERSEDING INDICTMENT FILED IN THIS CASE TO ADD THE BODY
ARMOR COUNTS, AND EVEN IF THE COURT DEEMS THE
“SUPPLEMENT” THAT WAS FILED EQUIVALENT TO A SUPERSEDING
INDICTMENT, DEFENDANT WAS NEVER ARRAIGNED ON THE COUNTS
PRIOR TO TRIAL.
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{¶6} In Baker’s three assignments of error, Baker raises various arguments asserting that
his sentences are void and/or not final, and thus, the trial court should have granted his motion.
Many of these arguments have been previously addressed in his prior appeal. See generally Baker,
2021-Ohio-3991. To the extent that Baker raised these same arguments in his July 2021 motion,
which this Court previously rejected in the prior appeal, see id., his arguments are barred by the
doctrine of res judicata. “Under the doctrine of res judicata, any issue that was or should have
been litigated in a prior action between the parties may not be relitigated.” (Internal quotations
and citations omitted.) State v. Boware, 9th Dist. Summit No. 28749, 2018-Ohio-1488, ¶ 7.
{¶7} To the extent that Baker attempted to raise new arguments in the trial court we view
his filing as another untimely and successive petition for post-conviction relief. “Courts may recast
irregular motions into whatever category necessary to identify and establish the criteria by which
the motion should be judged.” Baker, 2021-Ohio-3991, at ¶9, quoting State v. Little, 9th Dist.
Lorain No. 20CA011662, 2021-Ohio-1446, ¶ 6, quoting State v. Schlee, 117 Ohio St.3d 153, 2008-
Ohio-545, ¶ 12. “A vaguely titled motion may be treated as a petition for post-conviction relief
under R.C. 2953.21(A)(1) when the motion was filed after a direct appeal, alleges a denial of
constitutional rights, seeks to render the judgment void or voidable, and requests that the judgment
and sentence be vacated.” Baker, 2021-Ohio-3991, at ¶ 9, quoting Little at ¶ 6. This can include
motions seeking relief from judgment pursuant to Civ.R. 60(B). See Schlee at ¶ 12. Baker’s July
2021 motion meets the foregoing criteria. Further, it is not the first motion of this nature that he
has filed, and it is therefore a successive petition.
{¶8} Pursuant to R.C. 2953.21(A)(2)(a), Baker’s petition had 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
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appeals in the direct appeal of the judgment of conviction * * *.” Thus, Baker’s petition was
clearly untimely and successive.
{¶9} A trial court may not entertain untimely or successive petitions for postconviction
relief unless the petitioner satisfies certain requirements. See R.C. 2953.23(A). Baker’s petition
does not satisfy the requirements in R.C. 2953.23(A). “[A] petitioner’s failure to satisfy R.C.
2953.23(A) deprives a trial court of jurisdiction to adjudicate the merits of an untimely or
successive postconviction petition.” Baker, 2021-Ohio-3991, at ¶ 11, quoting Little at ¶ 9, quoting
State v. Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, ¶ 36. Therefore, the trial court lacked
authority to entertain Baker’s petition.
{¶10} Baker has not demonstrated that the trial court erred in denying his July 2021 filing.
Baker’s assignments of error are overruled.
III.
{¶11} Baker’s assignments of error are overruled. 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
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for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 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.
DONNA J. CARR
FOR THE COURT
STEVENSON, J.
FLAGG LANZINGER, J.
CONCUR.
APPEARANCES:
ELIZABETH N. GABA, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee.