State v. Dubose , 2024 Ohio 3167 ( 2024 )

[Cite as State v. Dubose, 2024-Ohio-3167.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-240038
TRIAL NO. B-1903561A
Plaintiff-Appellee, :
vs. :
O P I N I O N.
LADD DUBOSE, SR., :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: August 21, 2024
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Keith Sauter,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Ladd Dubose, Sr., pro se.
OHIO FIRST DISTRICT COURT OF APPEALS
KINSLEY, Judge.
{¶1} Defendant-appellant Ladd Dubose, Sr., appeals the judgment of the
Hamilton County Court of Common Pleas denying his motion to dismiss his
indictment. Because his motion, inaptly titled, was a petition for postconviction relief,
the common pleas court erred by failing to issue findings of fact and conclusions of law
in compliance with R.C. 2953.21(H) when denying the petition. Therefore, we remand
this cause so that the court can make the appropriate findings and conclusions.
{¶2} In March 2020, Dubose pled guilty to one count of trafficking in a
fentanyl-related compound and one count of having weapons while under a disability.
He was sentenced to five years’ imprisonment. In his direct appeal, we sustained
Dubose’s single assignment of error challenging his sentence and reversed the
postrelease-control portion of his sentence and remanded the cause for the trial court
to notify Dubose of his potential postrelease-control obligations. State v. Dubose,
2023 Ohio App. LEXIS 2644 (1st Dist. Aug. 2, 2023).
{¶3} In September 2023, Dubose filed a motion to dismiss the indictment
against him, arguing that his convictions were void because the trial court violated his
due process rights by entering judgments of conviction against him when the court
lacked subject matter jurisdiction over his case. The trial court summarily denied the
motion.
{¶4} Dubose now appeals, bringing forth two assignments of error.
Determining that his second assignment is dispositive of his appeal, we address that
first.
{¶5} In his second assignment of error, Dubose, claiming that his motion to
dismiss was a petition for postconviction relief under R.C. Ch. 2953, contends that the
court erred by failing to enter findings of fact and conclusions of law when denying his
petition.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶6} We note that in his motion Dubose did not cite any statute or criminal
rule when asking the court to declare his convictions void and dismiss his indictment.
Because of that, the common pleas court needed to establish the criteria by which the
motion should be judged. See State v. Bush, 2002-Ohio-3993. Typically, irregular
motions are recast as petitions for postconviction relief when the motion is filed after
the direct appeal, claims a denial of constitutional rights, and seeks to render the
judgment void. See State v. Schlee, 2008-Ohio-545, ¶ 12.
{¶7} Here, Dubose filed his motion after his direct appeal, claimed a denial
of his constitutional right to due process, and sought to void his convictions.
Therefore, the court should have considered Dubose’s motion under the
postconviction statutes in R.C. Ch. 2953. We briefly note that Crim.R. 12(C) is not
applicable to Dubose’s motion, as the state argues, because that rule specifically
requires motions to dismiss an indictment for lack of subject matter jurisdiction to be
made during the “pendency of the proceedings,” referring to the trial proceedings
leading to the conviction. Because Dubose filed his petition after his direct appeal, and
not during the pendency of the trial proceedings, and sought to void his convictions
based on a constitutional violation, Ohio’s postconviction statutes govern Dubose’s
motion.
{¶8} Under Ohio’s postconviction statutes, R.C. 2953.21(H) requires a court
to issue findings of fact and conclusions of law when denying a timely-filed petition
for postconviction relief. State v. Lavender, 2021-Ohio-4274, ¶ 5 (1st Dist.). A petition
for postconviction relief is considered timely if it is filed within 365 days of the filing
of the transcripts in the petitioner’s direct appeal. R.C. 2953.21(A)(2). Here, the
transcripts in Dubose’s direct appeal were filed on March 7, 2023, and his petition was
filed on September 6, 2023, making it timely. Because the common pleas court was
required to issue findings and conclusions when denying Dubose’s petition, it erred in
not doing so. Accordingly, we reverse the common pleas court’s judgment and remand
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OHIO FIRST DISTRICT COURT OF APPEALS
the cause for the lower court to issue findings of fact and conclusions of law in
compliance with R.C. 2953.21(H). Dubose’s second assignment of error is sustained.
{¶9} In light of our remand, Dubose’s first assignment of error challenging
the merits of his petition is moot.
Judgment reversed and cause remanded.
ZAYAS, P.J., and CROUSE, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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