State v. Baker , 2021 Ohio 3991 ( 2021 )

[Cite as State v. Baker, 2021-Ohio-3991.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 29943
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: November 10, 2021
CARR, Presiding Judge.
{¶1} Defendant-Appellant Jermaine Baker appeals from the judgment of the Summit
County Court of Common Pleas. This Court affirms.
I.
{¶2} 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.
{¶3} 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
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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 in the trial court, the appeal was not perfected, and an appeal was never
docketed in this Court.
{¶4} 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 denied the motion.
{¶5} Baker has appealed, raising three assignments of error for our review. They will
be addressed together to facilitate our review.
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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 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. 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 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. MR. BAKER’S
SENTENCING IS VOID, AND THE DEFENDANT’S 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 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. 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
FILED AS EQUIVALENT TO A SUPERSEDING INDICTMENT,
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DEFENDANT WAS NEVER ARRAIGNED ON THE COUNTS PRIOR TO
TRIAL.
{¶6} Baker argues in his first assignment of error that the December 14, 2007
sentencing entry is void because his sentence of 32 years in prison with parole eligibility after 20
years is contrary to law and the trial court improperly utilized the sentencing package doctrine in
sentencing him. Baker asserts in his second assignment of error that his sentence is void because
the trial court did not determine the repeat violent offender specifications and the trial court
failed to sentence Baker on those specifications. Therefore, he also argues the sentencing entry
is not final. Baker further maintains that the entry is not final and appealable because the trial
court imposed multiple consecutive sentences on multiple firearm and body armor specifications
which renders the sentence contrary to law and void. Finally, Baker argues in his third
assignment of error that he was never arraigned on the body armor specifications, that the
supplement which contained the specifications was an improper charging document, and that the
late filing of the specifications indicated vindictiveness by the State.
{¶7} To the extent Baker has raised additional arguments other than those he raised in
the trial court, this Court will not consider the arguments. See JPMorgan Chase Bank, Natl.
Assn. v. Burden, 9th Dist. Summit No. 27104, 2014-Ohio-2746, ¶ 12 (“Arguments that were not
raised in the trial court cannot be raised for the first time on appeal.”).
{¶8} This Court must first consider the nature of the motion at issue in the appeal.
Former R.C. 2953.21(A)(1)(a) provides in relevant part that
[a]ny person who has been convicted of a criminal offense or adjudicated a
delinquent child and who claims that there was such a denial or infringement of
the person’s rights as to render the judgment void or voidable under the Ohio
Constitution or the Constitution of the United States * * * may file a petition in
the court that imposed sentence, stating the grounds for relief relied upon, and
asking the court to vacate or set aside the judgment or sentence or to grant other
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appropriate relief. The petitioner may file a supporting affidavit and other
documentary evidence in support of the claim for relief.
{¶9} “Courts may recast irregular motions into whatever category necessary to identify
and establish the criteria by which the motion should be judged.” 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.” Little at ¶ 6. Baker’s motion meets these criteria. Further,
it is not the first motion of this nature that he has filed, and it is therefore a successive petition.
{¶10} Pursuant to former R.C. 2953.21(A)(2), 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 appeals in the direct appeal of the judgment of conviction * * *.” Thus, Baker’s
petition was clearly untimely and successive.
{¶11} A trial court may not entertain untimely or successive petitions for postconviction
relief unless the petitioner satisfies certain requirements. See former R.C. 2953.23(A). Baker’s
petition does not satisfy the requirements in former 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.” 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.
{¶12} Baker’s arguments that his sentences are void does not change this outcome. “A
sentence is only void when a sentencing court lacks jurisdiction over the subject-matter of the
case or personal jurisdiction over the accused.” (Internal quotations omitted.) Little at ¶ 10,
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quoting State v. Brown, 9th Dist. Summit No. 29667, 2020-Ohio-4671, ¶ 12, quoting State v.
Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, ¶ 42. An argument that the trial court imposed a
sentence not authorized by statute “challenges the exercise of jurisdiction and if true would
render [Baker’s] sentence voidable, not void.” State ex rel. Crangle v. Summit Cty. Common
Pleas Court, 162 Ohio St.3d 488, 2020-Ohio-4871, ¶ 10. “If a judgment entry is voidable, then
it must be challenged on direct appeal, or else principles of res judicata will apply, whereas a
defendant’s ability to challenge an entry at any time is the very essence of an entry being void,
not voidable.” (Internal quotations and citations omitted.) State ex rel. Romine v. McIntosh, 162
Ohio St.3d 501, 2020-Ohio-6826, ¶ 12. Baker has not argued or demonstrated on appeal that the
trial court lacked subject matter or personal jurisdiction over him. See App.R. 16(A)(7).
Accordingly, Baker has not demonstrated that his convictions and sentences are void. Being
voidable, they are subject to res judicata. State ex rel. Romine at ¶ 12.
{¶13} Finally, to the extent Baker has argued that the December 14, 2007 judgment
entry is not a final appealable order, he has not proven the same. See State v. Lester, 130 Ohio
St.3d 303, 2011-Ohio-5204, paragraph one of the syllabus (“A judgment of conviction is a final
order subject to appeal under R.C. 2505.02 when it sets forth (1) the fact of the conviction, (2)
the sentence, (3) the judge’s signature, and (4) the time stamp indicating the entry upon the
journal by the clerk.”); State ex rel. Rodriguez v. Barker, 158 Ohio St.3d 39, 2019-Ohio-4155,¶
10 (“[A] trial court’s failure to address a specification does not affect the finality of the order.”).
{¶14} Overall, Baker has not established that the trial court erred in denying his motion.
Baker’s assignments of error are overruled.
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III.
{¶15} 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 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
TEODOSIO, J.
CALLAHAN, J.
CONCUR.
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APPEARANCES:
ELIZABETH N. GABA, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee.