State v. Spann ( 2024 )

[Cite as State v. Spann, 2024-Ohio-2069.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 113310
v. :
ALBERT SPANN, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: May 30, 2024
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-08-513194-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Daniel T. Van, Assistant Prosecuting
Attorney, for appellee.
Albert Spann, pro se.
LISA B. FORBES, J.:
Albert Spann (“Spann”), acting pro se, appeals from the trial court’s
decision denying his “motion for relief from judgment.” After reviewing the facts of
the case and the pertinent law, we affirm the trial court’s decision.
I. Facts and Procedural History
On June 25, 2009, the trial court journalized an entry demonstrating
that Spann pled guilty to aggravated murder, a first-degree felony in violation of
R.C. 2903.01 and aggravated robbery, a first-degree felony in violation of
R.C. 2911.01(A)(1). Each count carried a “notice of prior conviction, repeat violent
offender specification.” The court sentenced Spann to an aggregate prison sentence
of 25 years to life.
Spann filed a motion for relief from judgment pursuant to
Civ.R. 60(B) on September 21, 2022, “seeking relief from the judgment entered
against him on June 25, 2009 accepting the guilty plea entered on his behalf * * *.”
The trial court denied Spann’s motion on September 26, 2023. It is
from this order that Spann appeals raising the following assignment of error: “The
trial court erred and abused its discretion in arbitrarily denying Appellant’s Motion
for Relief from Judgment without any findings of fact, conclusions of law or other
reasoning whatsoever, and without conducting a hearing.”
II. Law and Analysis
The Ohio Supreme Court has “repeatedly declared that ‘pro se
litigants * * * must follow the same procedures as litigants represented by counsel.’
State ex rel. Gessner v. Vore, 123 Ohio St.3d 96, 2009-Ohio-4150, 914 N.E.2d 376,
¶ 5.” State ex rel. Neil v. French, 153 Ohio St.3d 271, 2018-Ohio-2692, 104 N.E.3d
764, ¶ 10. Furthermore, Ohio courts have consistently held that pro se litigants “are
presumed to have knowledge of the law and legal procedure and * * * they are held
to the same standard as litigants who are represented by counsel.” Sabouri v. Ohio
Dept. of Job & Family Servs., 145 Ohio App.3d 651, 654, 763 N.E.2d 1238 (10th
Dist.2001).
On appeal, the state of Ohio argues that Spann’s motion for relief
from judgment pursuant to Civ.R. 60(B) should be recast and treated as a petition
for postconviction relief.
The Ohio Supreme Court has stated that an irregular motion may be
recast as a petition for postconviction relief in a criminal case when it: “‘(1) was filed
subsequent to [the defendant’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.’” State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882
N.E.2d 431, ¶ 12, quoting State v. Reynolds, 79 Ohio St.3d 158, 160, 679 N.E.2d 1131(1997).
Spann argues that it is improper to recast his motion and directs this
court to State v. Hill, 11th Dist. Trumbull No. 2023-T-0039, 2023-Ohio-4486, in
support of his argument. In Hill, the 11th District Court of Appeals found that the
trial court erred when it recast Hill’s motion for relief from judgment pursuant to
Civ.R. 60(B) as a petition for postconviction relief where that motion requested
relief from a previous denial of postconviction relief. Id. at ¶ 52. The Hill Court
noted that a petition for postconviction relief is a collateral civil attack on a criminal
conviction and thus, a Civ.R. 60(B) motion is “the appropriate motion to file to seek
relief from the civil judgment that was entered on his petition for postconviction
relief.” Id.
Here, Spann’s motion for relief from judgment sought “relief from the
judgment of conviction entered * * * on June 25, 2009.” Assuming without deciding
that the rationale used in Hill to reverse the trial court’s judgment is proper, that
rationale is inapplicable to Spann’s motion. Spann is not seeking relief from a denial
of a petition for postconviction relief. Rather, he seeks relief from his conviction.
Therefore, we will review the trial court’s denial of Spann’s motion as
a denial of a petition for postconviction relief.
Postconviction relief is a civil collateral attack on a criminal
judgment. State v. Curry, 8th Dist. Cuyahoga No. 108088, 2019-Ohio-5338, ¶ 12.
“Postconviction review is not a constitutional right but, rather, is a narrow remedy
that affords a petitioner no rights beyond those granted by statute.” Id., citing State
v. Calhoun, 86 Ohio St.3d 279, 281-282, 714 N.E.2d 905 (1999). R.C. 2953.21 allows
convicted criminal defendants to file a petition requesting the court to vacate its
judgment on the grounds that there was a denial or infringement on his or her rights
rendering the judgment void or voidable. R.C. 2953.21(A)(1)(a)(i). That petition
must be filed no later than 365 days after the transcript being filed in his or her direct
appeal, or if no appeal is filed, no later than 365 days “after the expiration of the time
for filing the appeal.” R.C. 2953.21(A)(2)(a).
However, a convicted defendant may file a petition for postconviction
relief after the 365-day deadline if he or she meets the requirements of
R.C. 2953.23(A).1 Under 2953.23(A)(1), a petitioner meets the timeliness exception
if:
(1) 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.
To meet the “unavoidably prevented” standard, Ohio courts “have previously held
that a defendant ordinarily must show that he was unaware of the evidence he is
relying on and that he could not have discovered the evidence by exercising
reasonable diligence.” State v. Bethel, 167 Ohio St.3d 362, 2022-Ohio-783, 192
N.E.3d 470, ¶ 21
Typically, a trial court’s decision on whether to grant postconviction
relief is reviewed for an abuse of discretion. See State v. Lawrence, 8th Dist.
Cuyahoga No. 109951, 2021-Ohio-2105, ¶ 12. However, whether a trial court had
subject-matter jurisdiction to entertain an untimely postconviction-relief petition is
1 R.C. 2953.23(A)(2) specifies a timeliness exception regarding actual innocence
due to DNA testing. Spann makes no argument in his petition or on appeal regarding
DNA, therefore, this section of the statute will not be discussed further.
a question of law that is reviewed de novo. State v. Apanovitch, 155 Ohio St.3d 358,
2018-Ohio-4744, 121 N.E.3d 351, ¶ 24.
Here, Spann did not file a direct appeal from his 2009 conviction. He
filed his petition for postconviction relief on September 21, 2022, far in excess of one
year after the expiration of the time to file a direct appeal. Therefore, Spann’s
petition for postconviction relief was untimely unless he demonstrated that he was
unavoidably prevented from discovering the facts upon which he relies in his
petition within the statutory timeframe and that no reasonable factfinder would
have found him guilty.
In his motion, Spann argued he had recently acquired his VA medical
records, which he argues indicate that he was improperly medicated during the time
he was incarcerated awaiting trial. According to Spann, as a result of the improper
medication, his plea was not knowing, intelligent, and voluntary.
However, Spann did not demonstrate that he was unaware of these
records and could not have retrieved them through reasonable diligence within one
year of his conviction. In his petition, Spann stated that it was not until he had his
“case file reviewed by a prisoner law clerk [he] realized that he needed to obtain his
V.A. records.” An affidavit of the prisoner law clerk attached to Spann’s petition
states that he met Spann in 2018, nine years after Spann’s conviction. A review of
the trial court docket reveals that in an August 30, 2013 motion to withdraw his
guilty plea, Spann argued “[t]he particular ‘manifest injustice’ which requires the
withdrawal of [Spann’s] Plea rests upon the fact that at the time of his sentencing,
[Spann] was not taking his regular medication.”
Spann’s petition demonstrates that he did not attempt to retrieve his
own medical records, which are the basis of his petition for postconviction relief,
until at least 2018. However, Spann knew that he was allegedly improperly
medicated as early as 2013. Based on these facts, we do not find that Spann was
unavoidably prevented from discovering the evidence he relies on in his 2023
petition for postconviction relief. Thus, the trial court did not err when it denied his
petition.
Spann’s 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.
LISA B. FORBES, JUDGE
MARY EILEEN KILBANE, P.J., and
ANITA LASTER MAYS, J., CONCUR