State v. Skipper

[Cite as State v. Skipper, 2021-Ohio-2206.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 20AP-494
(C.P.C. No. 08CR-3892)
v. :
(ACCELERATED CALENDAR)
Angelo L. Skipper, :
Defendant-Appellant. :
D E C I S I O N
Rendered on June 29, 2021
On brief: [G. Gary Tyack], Prosecuting Attorney, and
Sarah V. Edwards, for appellee.
On brief: Angelo L. Skipper, pro se.
APPEAL from the Franklin County Court of Common Pleas
BROWN, J.
{¶ 1} This is an appeal by defendant-appellant, Angelo L. Skipper, from a judgment
of the Franklin County Court of Common Pleas denying his motion to vacate void
conviction and sentence.
{¶ 2} On May 22, 2008, appellant was indicted on one count of aggravated murder,
in violation of R.C. 2903.01, one count of having a weapon while under disability, in
violation of R.C. 2923.13, and one count of tampering with evidence, in violation of R.C.
2921.12. Count 1 of the indictment (aggravated murder) also included a firearm
specification.
{¶ 3} On December 17, 2009, appellant, while represented by counsel, entered a
guilty plea to "the stipulated lesser included offense of Count One," involuntary
No. 20AP-494 2
manslaughter with firearm specification, Count 2 having a weapon while under disability,
and Count 3, tampering with evidence. (Jgmt. Entry at 1.) By judgment entry filed
December 18, 2009, the trial court sentenced appellant to a total term of incarceration of
18 years.
{¶ 4} On August 17, 2016, appellant filed a motion to withdraw guilty plea.
Plaintiff-appellee, State of Ohio, opposed the motion, and by decision and entry filed
December 8, 2016, the trial court denied appellant's motion to withdraw guilty plea.
Appellant appealed the trial court's denial of his motion to withdraw guilty plea. By journal
entry filed January 27, 2017, this court dismissed the appeal as untimely.
{¶ 5} On May 12, 2017, appellant filed a motion for judicial release which the state
opposed. By entry filed June 28, 2017, the trial court denied appellant's motion for judicial
release. On August 21, 2018, appellant filed a second motion for judicial release, which the
trial court denied by entry filed September 18, 2018. Appellant filed a third motion for
judicial release on February 21, 2020, which the trial court denied by decision and entry
filed March 31, 2020.
{¶ 6} On September 23, 2020, appellant filed a "motion to vacate void conviction
and sentence." On September 30, 2020, the state filed a memorandum in opposition to
appellant's motion. By decision and entry filed October 2, 2020, the trial court denied
appellant's motion to vacate void conviction and sentence.
{¶ 7} On appeal, appellant, pro se, sets forth the following single assignment of
error for this court's review:
THE TRIAL COURT ABUSED ITS DISCRETION AND
COMMITTED REVERSIBLE ERROR WHEN IT DENIED
THE APPELLANT'S MOTION WHEN THE CHARGE OF
INVOLUNTARY MANSLAUGHTER WAS NEVER
PROPERLY BEFORE THE COURT, RENDERING THE
APPELLANT'S GUILTY PLEA LESS THAN KNOWING,
VOLUNTARY, AND INTELLIGENT.
{¶ 8} Under his single assignment of error, appellant asserts the trial court erred in
denying his motion to vacate void conviction and sentence. Appellant argues he entered a
plea of guilty "to a charge that was never before the court." (Appellant's Brief at 3.)
According to appellant, his conviction and sentence are void because involuntary
manslaughter is not a lesser-included offense of aggravated murder, and he further
No. 20AP-494 3
maintains his guilty plea to involuntary manslaughter was invalid because the indictment
never charged him with that offense.
{¶ 9} At the outset, the state raises the issue as to the nature of appellant's motion
before the trial court. The state notes that, although appellant is claiming his plea was not
knowing, voluntary, and intelligent, he did not file a motion to withdraw guilty plea; rather,
appellant filed a document styled as a "motion to vacate void conviction and sentence." The
state argues the trial court should have recast appellant's motion as a postconviction
petition.1 Further, the state maintains, because appellant's motion did not meet any of the
criteria for filing an untimely petition for postconviction relief under R.C. 2953.23(A), the
court should have dismissed it for lack of jurisdiction.
{¶ 10} In general, "a criminal defendant has two means to challenge a judgment of
conviction or sentence after an appeal: a petition for post-conviction relief pursuant to R.C.
2953.21 et seq. or a Crim.R. 32.1 post-sentence motion to withdraw a guilty plea." State v.
Hall, 10th Dist. No. 05AP-957, 2006-Ohio-2742, ¶ 6. Further, "[p]ost-sentence motions to
withdraw a guilty plea and post-conviction relief petitions are alternative remedies and
exist independently." Id.{¶ 11} Under Ohio law, a motion "not filed pursuant to a specific rule of criminal
procedure 'must be categorized by a court in order for the court to know the criteria by
which the motion should be judged.' " State v. Elkins, 10th Dist. No. 10AP-6, 2010-Ohio-
4605, ¶ 7, citing State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, ¶ 10. See also State v.
Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, ¶ 12 ("Courts may recast irregular motions into
whatever category necessary to identify and establish the criteria by which the motion
should be judged.").
{¶ 12} As indicated, appellant styled his motion before the trial court as one "to
vacate void conviction and sentence." Appellant's motion cited "the Ohio Constitution, as
well as the [S]ixth and Fourteenth Amendment to the United States Constitution," and
requested the trial court to "vacate the conviction and sentence of * * * Involuntary
Manslaughter, as that charge was never brought before the Court and it deprived * * * the
guilty plea being less than knowing and voluntary, rendering the conviction and sentence
void or a nullity." (Def. Mot. to Vacate Void Conviction and Sentence.)
1 The state acknowledges it did not raise this issue before the trial court.
No. 20AP-494 4
{¶ 13} We agree with the state that, construed as a petition for postconviction relief,
the motion was untimely. At the time of his conviction, former R.C. 2953.21(A)(2) provided
(in cases in which no appeal was taken) that a petition for postconviction relief had to be
filed no later than 180 days after the expiration of the time for filing the appeal, except as
provided in R.C. 2953.23.
{¶ 14} A trial court lacks jurisdiction "to entertain an untimely petition for post-
conviction relief unless the petitioner demonstrates that one of the exceptions contained in
R.C. 2953.23(A) applies." State v. Franks, 10th Dist. No. 04AP-1370, 2005-Ohio-5923, ¶ 7.
In the present case, appellant made no attempt to demonstrate any of the exceptions under
R.C. 2953.23(A) for filing an untimely petition, i.e., that he was "unavoidably prevented
from discovering the facts upon which he relies in his petition or that his claim was based
on a new or federal or state right recognized by the United States Supreme Court that could
be retroactively applied to his case." Elkins at ¶ 15.
{¶ 15} We further note that " '[r]es judicata is applicable in all postconviction relief
proceedings" and, under that doctrine, "a defendant who was represented by counsel is
barred from raising an issue in a petition for post-conviction relief if defendant raised or
could have raised the issue at trial or on direct appeal." State v. Campbell, 10th Dist. No.
03AP-147, 2003-Ohio-6305, ¶ 16, quoting State v. Szefcyk, 77 Ohio St.3d 93, 95 (1996).
{¶ 16} One exception applicable "to both the time limitation for filing a
postconviction relief petition and the application of the doctrine of res judicata is the
existence of a judgment that is void." State v. Bennett, 4th Dist. No. 15CA3682, 2015-Ohio-
3832, ¶ 11. In this respect, "[a] void judgment may be challenged at any time." Id., citing
State v. Love, 9th Dist. No. 27199, 2014-Ohio-1817, ¶ 7.
{¶ 17} In the instant case, appellant contends his motion is not barred by res
judicata because his conviction and sentence are void; specifically, as noted above,
appellant asserts his conviction is void because the offense to which he entered a guilty plea,
involuntary manslaughter, is not a lesser-included offense of the crime for which he was
indicted (aggravated murder). We disagree.
{¶ 18} Contrary to appellant's contention, under Ohio law, "[i]nvoluntary
manslaughter, R.C. 2903.04, is a lesser included offense of aggravated murder, R.C.
2903.01(A)." State v. Thomas, 40 Ohio St.3d 213, 216 (1988). See also State v. Smith, 89
No. 20AP-494 5
Ohio St.3d 323, 330 (2000) (holding "[i]nvoluntary manslaughter is a lesser-included
offense of aggravated murder," and noting "[t]he difference between the two offenses is that
aggravated murder requires a purpose to kill, while involuntary manslaughter requires only
that a killing occurred as a proximate result of committing or attempting to commit a
felony").
{¶ 19} Further, even if involuntary manslaughter was not a lesser-included offense
of aggravated murder, we would reject appellant's argument based on the record presented.
As noted by the state, under the facts of this case, appellant stipulated to involuntary
manslaughter as a lesser-included offense of aggravated murder. This court has "repeatedly
* * * held that, once properly before the trial court, '[a] defendant may waive the right to
indictment altogether, as by a guilty plea to an unindicted offense.' " State v. Battin, 10th
Dist. No. 19AP-485, 2019-Ohio-5001, ¶ 8, quoting State v. Long, 10th Dist. No. 83AP-444
(Sept. 27, 1984). See also State v. Bruce, 10th Dist. No. 16AP-31, 2016-Ohio-7132, ¶ 12
("appellant's actions in knowingly, intelligently, and voluntarily entering a plea to two
counts of unlawful sexual conduct with a minor while represented by counsel constituted a
waiver of his constitutional right to an indictment on the offenses to which he pled").
{¶ 20} In State v. Wooden, 10th Dist. No. 02AP-473, 2002-Ohio-7363, this court
addressed a similar claim by a defendant, in which he asserted his guilty plea was void and
violated his constitutional rights because the crimes to which he pled guilty (two counts of
corruption of a minor) were not lesser-included offenses of the crimes for which he was
indicted (rape). This court rejected the defendant's argument, relying in part on language
by the Supreme Court of Ohio holding that the fact an appellant " 'proceeded to plead to a
different offense [than the one contained in the indictment] does not void his conviction.' "
Id. at ¶ 12, quoting Stacy v. Van Coren, 18 Ohio St.2d 188, 189 (1969). In Wooden, we
determined that appellant's actions in voluntarily entering into a guilty plea to two counts
of corruption of a minor, while represented by counsel, "constituted a waiver of his
constitutional right to indictment." Id. at ¶ 15. See also State v. Battin, 10th Dist. No. 18AP-
402, 2018-Ohio-3947, ¶ 10 ("The fact that [the appellant] was not indicted for the offense
to which he chose to plead as part of a plea agreement does not render his conviction void
or create grounds to vacate his conviction.").
No. 20AP-494 6
{¶ 21} The record in this case indicates appellant was represented by counsel, and
both appellant and his counsel signed the entry of guilty plea form. That entry of guilty plea
stated in part: "I understand that my guilty plea(s) to the crime(s) specified constitute(s)
both an admission of guilt and a waiver of any and all constitutional, statutory, or factual
defenses with respect to such crime(s) [in] this case." (Dec. 17, 2009 Entry of Guilty Plea.)
Again, we find no merit to appellant's contention that the offense to which he pled,
involuntary manslaughter, was not a lesser-included offense of the indicted crime; in any
event, however, appellant's actions in voluntarily entering a guilty plea to involuntary
manslaughter, "while represented by counsel," constitutes "a waiver of his constitutional
right to an indictment on that offense." State v. Taylor, 10th Dist. No. 19AP-795, 2020-
Ohio-4581, ¶ 23, citing Bruce at ¶ 12.
{¶ 22} Finally, the Supreme Court has recently made clear that "[a] judgment or
sentence is void only if it is rendered by a court that lacks subject-matter jurisdiction over
the case or personal jurisdiction over the defendant," and "[i]f the court has jurisdiction
over the case and the person, any error in the court's exercise of that jurisdiction is
voidable." State v. Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784, ¶ 34. With respect to
a "criminal matter, the court acquires jurisdiction over a person by lawfully issued process,
followed by the arrest and arraignment of the accused and his plea to the charge," and "[a]
defendant also submits to the court's jurisdiction if he does not object to the court's exercise
of jurisdiction over him." Id. at ¶ 36. See also State v. Harper, 160 Ohio St.3d 480, 2020-
Ohio-2913, ¶ 25-26, quoting Smith v. Sheldon, 157 Ohio St.3d 1, 2019-Ohio-1677, ¶ 8
(recognizing that " 'a common pleas court has jurisdiction over felony cases,' " and that
"when a specific action is within a court's subject-matter jurisdiction, any error in the
exercise of that jurisdiction renders the court's judgment voidable, not void"). In this
respect, "[n]either the state nor the defendant can challenge the voidable sentence through
a postconviction motion." Henderson at ¶ 43.
{¶ 23} Appellant's contention that the trial court lacked jurisdiction to accept his
plea, rendering his conviction and sentence void, is unpersuasive. Further, appellant's
arguments in support of his motion to vacate are based "upon matters contained in the
record of the trial court proceedings and could have been raised in a direct appeal" and,
therefore, are barred by the doctrine of res judicata. Taylor at ¶ 13. On review, appellant's
No. 20AP-494 7
conviction was not void and, based on the untimeliness of his petition and the doctrine of
res judicata, the trial court did not err in denying appellant's motion to vacate void
conviction and sentence.
{¶ 24} Based on the foregoing, appellant's single assignment of error is overruled,
and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
DORRIAN, P.J., and KLATT, J., concur.
_____________________