State v. Calo , 2023 Ohio 1289 ( 2023 )

[Cite as State v. Calo, 2023-Ohio-1289.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111958
v. :
DENNIS CALO, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 20, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-83-186387-B
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Katherine E. Mullin, Assistant Prosecuting
Attorney, for appellee.
Dennis Calo, pro se.
SEAN C. GALLAGHER, J.:
Dennis Calo appeals the judgment denying a motion to vacate his
1984 convictions stemming from the aggravated murder of Thomas Kowal and Kim
Shusta. State v. Calo, 8th Dist. Cuyahoga Nos. 49159 and 49215, 1985 Ohio App.
LEXIS 8032, 1 (June 13, 1985).1 There is no merit to this appeal.
The facts of the underlying convictions are largely irrelevant to the
procedural posture of this appeal. It suffices that Calo and an accomplice, who was
tried separately, shot and killed Kowal and Shusta at the time of a drug transaction.
The state originally charged Calo with the murders in 1978, but upon the state’s
request, the charges were nolled. In general terms, a “nolle prosequi is merely a
withdrawal of the indictment, which if done before jeopardy has attached, does not
prohibit reindictment.” State v. Holden, 8th Dist. Cuyahoga No. 53786, 1987 Ohio
App. LEXIS 9158, 2 (Oct. 15, 1987), quoting State v. Dixon, 14 Ohio App.3d 396,
397, 471 N.E.2d 864 (8th Dist.1984). As a result of that general proposition, in 1983
Calo was indicted with the aggravated murder charges mirroring those that were
previously nolled. Throughout the underlying proceedings, Calo maintained that
the second prosecution violated his speedy trial rights based on the five-year delay
between cases. No court found in his favor. See Calo.
Thirty-five years after his conviction, Calo filed a motion to vacate his
“illegal convictions,” claiming that the indictment issued in 1983 violated the Fifth
and Fourteenth Amendments to the Constitution. Calo contends that the first case
1 This is not Calo’s first attempt to challenge his convictions following his direct
appeal. See, e.g., State v. Calo, 8th Dist. Cuyahoga No. 62980, 1993 Ohio App. LEXIS
4489, 1 (Sept. 23, 1993); State ex rel. Finnerty v. Custodian of Records, 96 Ohio App.3d
569, 570, 645 N.E.2d 780 (8th Dist.1994); State ex rel. Richard v. Mohr, 10th Dist.
Franklin No. 11AP-780, 2012-Ohio-4413; Richard v. Mohr, S.D.Ohio No. 2:13-cv-1013,
2014 U.S. Dist. LEXIS 8322 (Jan. 23, 2014).
was effectively dismissed with prejudice, barring all later proceedings arising from
the facts and circumstances of his murdering Kowal and Shusta. In furtherance of
that claim, Calo essentially claimed that his trial attorney rendered ineffective
assistance by not preserving this constitutional challenge. Calo’s motion to vacate
his convictions, however, did not include any discussion regarding whether the trial
court possessed jurisdiction to consider the merits of the arguments advanced
therein.
“Once a final judgment has been issued pursuant to Crim.R. 32, the
trial court’s jurisdiction ends.” State v. Gilbert, 143 Ohio St.3d 150, 2014-Ohio-
4562, 35 N.E.3d 493, ¶ 9. That court’s continuing jurisdiction to act in
postconviction proceedings is, therefore, limited. State v. Harper, 160 Ohio St.3d
480, 2020-Ohio-2913, 159 N.E.3d 248, ¶ 30; State v. Simpkins, 117 Ohio St.3d 420,
2008-Ohio-1197, 884 N.E.2d 568, ¶ 23; State ex rel. Cruzado v. Zaleski, 111 Ohio
St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 19. There must be a jurisdictional
basis for the trial court to act or to decide the issue being presented following the
exhaustion of appellate remedies in a criminal proceeding. State v. Apanovitch, 155
Ohio St.3d 358, 2018-Ohio-4744, 121 N.E.3d 351, ¶ 38-39; State v. Parker, 157 Ohio
St.3d 460, 2019-Ohio-3848, 137 N.E.3d 1151. If a trial court lacks jurisdiction to
consider postconviction motions, “any ruling on such a motion is a nullity.” State
ex rel. Dobson v. Handwork, 159 Ohio St.3d 442, 2020-Ohio-1069, 151 N.E.3d 613,
¶ 16, citing State v. Dix, 8th Dist. Cuyahoga No. 101007, 2014-Ohio-3330, ¶ 3; State
v. Ford, 9th Dist. Summit No. 26466, 2012-Ohio-5050, ¶ 8-10; State v. Wilson, 10th
Dist. Franklin Nos. 05AP-939, 05AP-940, and 05AP-941, 2006-Ohio-2750, ¶ 9.
If the trial court lacks continuing jurisdiction to consider the
constitutional validity of the final entry of conviction, an appellate court will likewise
be unable to address the merits of the constitutional question advanced because
appellate review is limited to reviewing whether the trial court properly assessed its
jurisdiction. State v. Gamble, 2021-Ohio-1810, 173 N.E.3d 132, ¶ 14 (8th Dist.).
Accordingly, the first step in this analysis is to properly frame Calo’s postconviction
motion to determine whether the trial court maintains continuing jurisdiction to
consider the merits of the arguments.
A defendant can invoke the trial court’s continuing jurisdiction
following the issuance of a final sentencing entry in several ways; for example,
through the (1) filing a motion to correct a void judgment; (2) filing a timely or
successive petition for postconviction relief under R.C. 2953.21; (3) filing a motion
for a new trial under Crim.R. 33; or (4) filing a post-sentence motion to withdraw a
plea under Crim.R. 32.1. Although Calo captioned his motion as one seeking to
vacate an illegal conviction, the state recasts Calo’s motion as a petition for
postconviction relief based on the fact that Calo has not claimed, much less
demonstrated, that his conviction is void. According to the state, Calo’s sole
argument is that his conviction is voidable based on his trial counsel’s purported
ineffectiveness for the failure to timely raise a double jeopardy argument against the
proceeding that resulted in Calo’s final convictions.
The state’s framing of the motion is accurate. Calo is not claiming
that his conviction is void as contemplated under Harper, 160 Ohio St.3d 480,
2020-Ohio-2913, 159 N.E.3d 248, at ¶ 30, in that the trial court lacked subject-
matter jurisdiction over the criminal proceedings, for the purposes of invoking the
trial court’s inherent authority to vacate a void conviction. The Ohio Supreme Court,
albeit through a fractured opinion, has held the constitutional challenges do not
render a conviction void such that the trial court inherently maintains continuing
jurisdiction to consider challenges to conviction during the offender’s continued
incarceration. See generally Parker, 157 Ohio St.3d 460, 2019-Ohio-3848, 137
N.E.3d 1151 (the separate opinions all agreed that a rule-based or statutory
mechanism must be used to invoke the trial court’s continuing jurisdiction in
postconviction proceedings with only one dissenting justice claiming the
constitutional challenge belatedly advanced would have rendered the conviction
void for the purposes of invoking the trial court’s continuing jurisdiction). The
conviction is potentially voidable based on the newly found constitutional argument,
but that argument must be advanced through the proper invocation of the trial
court’s continuing jurisdiction over a final conviction. Id.When faced with the potential miscaptioning of a postconviction
motion, “[c]ourts may recast irregular motions into whatever category necessary to
identify and establish the criteria by which the motion should be judged.” Parker at
¶ 16, quoting State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431,
¶ 2. Without recasting his motion as a petition for postconviction relief, the inquiry
would be at its end; the trial court lacked jurisdiction to vacate the convictions that
were merely voidable based on the constitutional arguments presented.2 See
generally Harper; Parker. Although captioned incorrectly, Calo’s motion must be
construed as a petition for postconviction relief for the purposes of determining
whether the trial court possessed jurisdiction to consider the merits of Calo’s
arguments.
The crux of his latest motion focuses on whether Calo’s trial counsel
rendered ineffective assistance by failing to preserve an argument to dismiss the
second prosecution based on double jeopardy principles. In statutory context, his
claim focuses on the alleged denial or infringement of his rights that would render
his conviction voidable under the Ohio or federal Constitutions. R.C.
2953.21(A)(1)(a)(i). “[W]hether a trial court has subject-matter jurisdiction to
entertain an untimely, second, or successive petition for postconviction relief is a
question of law,” which is reviewed de novo. State v. Hatton, Slip Opinion No. 2022-
Ohio-3991, ¶ 38, citing Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, 121
N.E.3d 351, at ¶ 24.
Calo’s postconviction motion, filed 35 years following his convictions,
is definitively late. Hatton at ¶ 37; R.C. 2953.21(A)(2). As a result, Calo must
2 The absence of a timely objection to the subsequent prosecution constitutes
waiver of the double jeopardy defense in that proceeding. Peretz v. United States, 501
U.S. 923, 936, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991), citing United States v. Bascaro, 742
F.2d 1335, 1365 (11th Cir.1984). Thus, the proper mechanism to advance the failure to
timely preserve the forfeited argument is through an ineffective assistance of counsel
claim through Ohio’s postconviction relief statutory scheme.
demonstrate that he was unavoidably prevented from the discovery of the facts upon
which his relief relies or is based on a new federal or state right as recognized by the
United States Supreme Court. R.C. 2953.23(A)(1). He must also demonstrate by
clear and convincing evidence that but for the error at trial, no reasonable factfinder
would have found him guilty. Id.Based on the arguments presented, Calo has not demonstrated that
his motion satisfies the statutory criteria necessary to invoking the trial court’s
continuing jurisdiction to review the merits of the belated or successive petition for
postconviction relief. Instead, Calo focuses on the merits of his argument without
demonstrating the existence of a newly identified state or federal right recognized
by the United States Supreme Court or any new facts from which his claim arises.
Without establishing that the trial court maintained continuing jurisdiction to
review the motion, construed as a belated or successive petition for postconviction
relief based on the arguments presented, the trial court had no authority to do
anything but deny the postconviction motion for the want of jurisdiction. There is
no error.
The decision of the trial court is 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. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
______________________
SEAN C. GALLAGHER, JUDGE
FRANK DANIEL CELEBREZZE, III, P.J., and
MARY J. BOYLE, J., CONCUR