State v. Lowery , 2011 Ohio 2827 ( 2011 )

[Cite as State v. Lowery, 2011-Ohio-2827.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24198
v. : T.C. NO. 06CR159
CHARLES B. LOWERY : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 10th day of June , 2011.
..........
JOHNNA M. SHIA, Atty. Reg. No. 0067685, Assistant Prosecuting Attorney, 301 W. Third
Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
CHARLES B. LOWERY, #536057, Warren Correctional Institute, P. O. Box 120, Lebanon,
Ohio 45036
Defendant-Appellant
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KLINE, J. (by assignment)
{¶ 1} Charles B. Lowery (hereinafter “Lowery”) appeals the denial of his
motion for post-conviction relief. Lowery contends that counts three and four of his
indictment were defective, and, therefore, the trial court was without jurisdiction to
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convict him. Lowery also contends that counts three and four of his indictment
were unconstitutional because they suffered from multiplicity. Because Lowery’s
petition was untimely filed, and because his claims are barred by res judicata, we
disagree. Accordingly, we affirm the judgment of the Montgomery County Court of
Common Pleas.
I
{¶ 2} On February 13, 2006, Lowery was indicted for two counts of
aggravated robbery with firearm specifications, one count of unlawful possession of
a dangerous ordnance, and one count of having weapons under a disability. The
weapons charges were severed from the robbery charges. A jury found Lowery
guilty on the robbery charges on July 12, 2006. Lowery pled guilty to the weapons
under a disability charge on September 5, 2006, and the state dismissed the
possession of a dangerous ordnance count.
{¶ 3} The trial court sentenced Lowery to two mandatory four-year terms on
the robbery charges and ordered that Lowery serve them consecutively. The trial
court merged the gun specifications and ordered that Lowery serve the associated
three-year term consecutive to the robbery sentences. The trial court also
sentenced Lowery to one year for the weapons under a disability charge, which
Lowery was to serve concurrently with his other sentences. In total, the trial court
sentenced Lowery to a prison term of eleven years.
{¶ 4} Lowery timely appealed his convictions. And the trial transcript was
filed in his direct appeal on March 7, 2007. This Court affirmed Lowery’s
conviction and sentence on December 7, 2007. See State v. Lowery, Montgomery
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App. No. 21879, 2007-Ohio-6608.
{¶ 5} On May 5, 2010, approximately two years and two months after the
transcript was filed in Lowery’s direct appeal, Lowery filed a petition for
post-conviction relief. In his petition, Lowery alleged that his indictment was
defective. The trial court denied Lowery’s petition on July 13, 2010. The trial
court ruled that Lowery’s petition was untimely filed and that Lowery was not
unavoidably prevented from discovering the alleged defects in his indictment.
{¶ 6} Lowery appeals and asserts the following assignments of error: I.
“The judgement [sic] entered by the trial court and the Indictment returned by the
Grand Jury null and void for lack of Subject Matter Jurisdiction and for failure to
charge as defined by state statue [sic] an Aggravated Robbery offense, when it
failed to identify or name any ‘victim’ in the purposed [sic] Indictment.” (Underlining
sic). II. “The Judgement [sic] entered by the trial court and the Indictment returned
by the Grand Jury are null and void for lack of Subject Matter Jurisdiction and for
failure to charge as defined by State statue [sic] and Aggravated Robbery offense,
when it failed to include, in the Indictment, a ‘Theft offense.’” (Underlining sic). III.
“The State violated the Constitutional Ban against ‘Double Jeopardy’ when it
charged and convicted Appellant, in counts three (3) and four (4) of the purposed
[sic] Indictment, with two (2) identical Aggravated Robbery offenses, causing
indictment [sic] to suffer from ‘multi-plicity.’” (Underlining sic). And, IV.
“Montgomery County Common Pleas court erred when it denied Appellants [sic]
‘Petition for Post-Conviction Relief.’”
II
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{¶ 7} Initially, we note that “[a]buse of discretion is the most prevalent
standard [of review] for reviewing the dismissal of a petition for post-conviction relief
without a hearing.” State v. Goldick, Montgomery App. No. 23690,
2010-Ohio-4394, at ¶9 (second alteration sic), quoting State v. Hicks, Highland
App. No. 09CA15, 2010-Ohio-89, at ¶10. An abuse of discretion connotes more
than a mere error of judgment; it implies that the court’s attitude is arbitrary,
unreasonable, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d
217, 219.
{¶ 8} We begin our analysis of Lowery’s claims with an overview of the time
period for filing a petition for post-conviction relief. We will then turn to Lowery’s
specific assignments of error.
A
{¶ 9} The time period to file a petition for post-conviction relief is governed
by R.C. 2953.21(A)(2), which provides: “Except as otherwise provided in section
2953.23 of the Revised Code, a petition [for post-conviction relief] shall be filed no
later than one hundred eighty [180] days after the date on which the trial transcript
is filed in the court of appeals in the direct appeal of the judgment of conviction or
adjudication[.]”
{¶ 10} “This provision [i.e., R.C. 2953.21(A)(2)] denies the common pleas
courts jurisdiction to adjudicate the merits of an untimely petition, with but one
narrow exception.” State v. Harden, Montgomery App. No. 20803,
2005-Ohio-5580, at ¶9. R.C. 2953.23(A) sets forth this “narrow exception,” and it
provides, in relevant part, as follows: “Whether a hearing is or is not held on a
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petition filed pursuant to [R.C. 2353.21], a court may not entertain a petition filed
after the expiration of the period prescribed in division (A) of that section or a
second petition or successive petitions for similar relief on behalf of a petitioner
unless * * * (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 [R.C. 2953.21(A)(2)] 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. [And] (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[.]”
{¶ 11} Here, Lowery filed his petition more than 180 days after the date on
which the trial transcript was filed in the court of appeals in his direct appeal. The
transcript in his direct appeal was filed on March 7, 2007. Therefore, Lowery’s
petition was due no later than September 3, 2007. Lowery’s May 5, 2010 filing
was clearly outside the 180-day window provided by R.C. 2953.21(A)(2).
{¶ 12} Additionally, Lowery has not satisfied the requirements to qualify for
the exception to the 180-day time period. Lowery has failed to show that he was
unavoidably prevented from discovery of the facts upon which he must rely to
present his claim for relief. Moreover, Lowery has not identified a new federal or
state right that applies retroactively to his situation. Thus, Lowery’s petition for
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post-conviction relief was untimely.
{¶ 13} Lowery, however, asserts that the trial court’s lack of subject matter
jurisdiction may be raised at any time. We now turn to Lowery’s claim that he can
assert the trial court’s alleged lack of subject matter jurisdiction in his untimely-filed
petition.
B
{¶ 14} We will address Lowery’s first three assignments of error together.
Lowery bases his first, second, and third assignments of error on alleged defects in
counts three and four of his indictment, which were both aggravated robbery
counts. In his first and second assignments of error, Lowery claims the aggravated
robbery counts were defective because they each failed to identify a victim and to
charge a theft offense. In his third assignment of error, Lowery claims that counts
three and four of the indictment are defective because they are “identical.”
Appellant’s Brief at 6. Therefore, according to Lowery, the indictment suffered
from “multiplicity,” and as a result, Lowery claims he faced unconstitutional double
jeopardy.
{¶ 15} Lowery relies on State v. Cimpritz (1953), 158 Ohio St. 490, and he
argues that the defects in his indictment rendered his judgments of conviction void,
which left the trial court without jurisdiction to convict him. Thus, according to
Lowery, because subject matter jurisdiction can be raised at any time, he can raise
it in his untimely petition for post-conviction relief. Lowery’s argument is
misplaced.
{¶ 16} In Cimpritz, the Supreme Court of Ohio held that “[a] judgment of
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conviction based on an indictment which does not charge an offense is void for lack
of jurisdiction of the subject matter and may be successfully attacked either on
direct appeal to a reviewing court or by a collateral proceeding.” Id. at paragraph
six of the syllabus.
{¶ 17} The Court, however, later clarified the holding in Cimpritz. In State v.
Wozniak (1961), 172 Ohio St. 517, the Court stated: “As stated in paragraph six of
the syllabus of [Cimpritz], ‘an indictment,’ such as that in the instant case, ‘which
does not charge an offense is void * * * and may be successfully attacked * * * by a
collateral proceedings [sic].’ However, after a judgment of conviction for the crime
sought to be charged in such indictment, such a collateral attack would no longer
be effective because the judgment of conviction necessarily binds a defendant,
where the court rendering it had jurisdiction of the person of the defendant and also
jurisdiction of the subject matter, i. e., jurisdiction to try the defendant for the crime
for which he was convicted. Such a judgment of conviction is necessarily binding
as between the state and the defendant and can only be set aside by a direct and
not a collateral attack.” Id. at 522-23 (emphasis added). See, also, Midling v.
Perrini (1968), 14 Ohio St.2d 106, 107 (“[T]he Cimpritz [sic] case involved a direct
appeal from the judgment of conviction and not a collateral attack on such a
judgment. Hence, it would have been sufficient to use the word ‘voidable’ instead
of ‘void’ in [paragraph six of the syllabus]. Also, no question with respect to a
collateral attack was involved in the case, so that any statement with respect
thereto may be disregarded.”).
{¶ 18} Thus, even assuming there was a defect in Lowery’s indictment, he
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cannot raise the issue “at any time” based on the trial court’s alleged lack of subject
matter jurisdiction. Lowery raises no argument that the trial court lacked either
personal jurisdiction over him or jurisdiction to try him for the crime for which he was
convicted.
{¶ 19} Therefore, Lowery cannot raise the trial court’s alleged lack of
subject-matter jurisdiction, based on an allegedly defective indictment, in an
untimely petition for post-conviction relief. See State v. Chattams, Butler App. No.
CA2009-01-011, 2009-Ohio-6172, at ¶16. Lowery’s attempt to raise the issue of a
defective indictment, after the expiration of the time period to file a petition for
post-conviction relief, must fail. As detailed above, Lowery’s petition was untimely
filed, and his petition does not qualify for an exception to the 180-day time period to
file his petition.
{¶ 20} Additionally, Lowery’s arguments that his indictment was defective are
barred by the doctrine of res judicata. “The doctrine of res judicata establishes that
‘a final judgment of conviction bars the convicted defendant from raising and
litigating in any proceeding, except an appeal from that judgment, any defense or
any claimed lack of due process that was raised or could have been raised by the
defendant at the trial which resulted in that judgment of conviction or on an appeal
from that judgment.’” State v. D’Ambrosio (1995), 73 Ohio St.3d 141, 143, quoting
State v. Perry (1967), 10 Ohio St.2d 175, 180 (emphasis sic). Thus,
“[p]ostconviction review is a narrow remedy, because res judicata bars any claim
that was or could have been raised at trial or on direct appeal.” State v. Dean, 187
Ohio App.3d 495, 498, 2010-Ohio-1684, at ¶11.
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{¶ 21} Whether an indictment is defective is an issue that could have been
raised on direct appeal. Lowery did not challenge the sufficiency of his indictment
at trial or on direct appeal. Therefore, res judicata bars Lowery’s attempt to raise
the issue of a defective indictment in his petition for post-conviction relief. See
State v. Tucker, Montgomery App. No. 23408, 2010-Ohio-2642, at ¶6 (“Whether the
indictment was defective is an issue that could have been raised by Defendant in
his direct appeal. It was not. Therefore, res judicata bars Defendant from now
raising that issue as a ground for post-conviction relief.”).
{¶ 22} Thus, Lowery’s petition for post-conviction relief was untimely.
Additionally, Lowery’s arguments are barred by the doctrine of res judicata.
Accordingly, we overrule Lowery’s first, second, and third assignments of error.
C
{¶ 23} In his fourth assignment of error, Lowery argues that the trial court
erred when it dismissed Lowery’s petition as untimely. Lowery argues that his
direct appeal was still pending when the 180-day time period under R.C.
2953.21(A)(2) expired. The transcript for Lowery’s direct appeal was filed on
March 7, 2007, and 180 days from that date was September 3, 2007. This Court
affirmed Lowery’s conviction on December 7, 2007. Presumably, Lowery claims
that the time period for filing his petition for post-conviction relief should have been
tolled while his direct appeal was pending.
{¶ 24} Lowery provides no authority that the pendency of a direct appeal
somehow tolls the time period to file a petition for post-conviction relief. In fact,
R.C. 2953.21(C) specifically provides that “[t]he [trial] court shall consider a petition
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that is timely filed under division (A)(2) of this section even if a direct appeal of the
judgment is pending.” (Emphasis added).
{¶ 25} In any event, Lowery’s argument is moot because, even assuming the
180-day time period was tolled until December 7, 2007, Lowery’s petition was still
untimely. Lowery filed his petition for post-conviction relief on May 5, 2010, which
was well over 180 days after this Court decided Lowery’s direct appeal on
December 7, 2007. See State v. Roberson, Stark App. No. 2009CA00316,
2010-Ohio-3702, at ¶14 (“Assuming, arguendo, we accept Appellant’s suggestion
he was unavoidably prevented from being able to raise this claim within the 180 day
time limit while his direct appeal was still pending, his direct appeal was denied on
April 9, 2001. Therefore, even had we found the 180-day time limit was tolled
during the pendency of the direct appeal, Appellant’s attempt to raise the issue in
2009, is still far beyond 180 day time limit restarting April 9, 2001. We find the trial
court correctly ruled Appellant's petition was untimely.”)
{¶ 26} Thus, the trial court correctly denied Lowery’s petition for
post-conviction relief as untimely. And we overrule Lowery’s fourth assignment of
error.
III
{¶ 27} In conclusion, having overruled all of Lowery’s assignments of error,
we affirm the judgment of the Montgomery County Court of Common Pleas.
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FAIN, J. and DONOVAN, J., concur.
(Hon. Roger L. Kline, Fourth District Court of Appeals, sitting by assignment of the
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Chief Justice of the Supreme Court of Ohio).
Copies mailed to:
Johnna M. Shia
Charles B. Lowery
Hon. Dennis J. Langer