State v. Lawrence

[Cite as State v. Lawrence, 2016-Ohio-7626.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 27014
Plaintiff-Appellee :
: Trial Court Case No. 2001-CR-459
v. :
: (Criminal Appeal from
PHILLIP H. LAWRENCE : Common Pleas Court)
:
Defendant-Appellant :
:
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OPINION
Rendered on the 4th day of November, 2016.
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MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
PHILLIP LAWRENCE, #414-996, Post Office Box 69, London, Ohio 43140
Defendant-Appellant, pro se
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FAIN, J.
{¶ 1} Defendant-appellant Philip H. Lawrence appeals from an order overruling his
post-conviction motion to set aside his conviction based on incomplete verdict forms.
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Lawrence contends that the trial court lacked jurisdiction to enter judgment against him
without a jury determination of the requisite findings that Lawrence acted “purposely” for
the charge of Murder under R.C. 2903.02(A), and without a specific jury finding on the
elements of Felonious Assault, which was the underlying offense for the charge of Murder
under R.C. 2903.02(B). Lawrence contends that the trial court erred by overruling his
motion on the basis of res judicata. We conclude that the trial court had jurisdiction to
enter judgment based on the jury verdicts, and that the doctrine of res judicata applies.
Accordingly, the judgment of the trial court is Affirmed.
I. The Course of the Proceedings
{¶ 2} In 2002, Lawrence was found guilty by a jury on two counts of Murder, both
with firearm specifications. The trial court merged the Murder convictions into one,
merged the firearm specifications into one firearm specification, and sentenced Lawrence
to an aggregate prison term of 18 years to life. We affirmed, concluding that Lawrence
was not denied the effective assistance of counsel, that the convictions were not against
the manifest weight of the evidence, and that Lawrence was not prejudiced by
prosecutorial misconduct. State v. Lawrence, 2d Dist. Montgomery No. 19059, 2002-
Ohio-5533. In that appeal, Lawrence did not raise the alleged defects in the verdict forms
that he now raises in the appeal before us.
{¶ 3} In 2011, we dismissed an appeal, based on lack of jurisdiction, from the trial
court’s overruling of Lawrence’s motion for a revised sentence to comply with Crim. R.
32(C). State v. Lawrence, 2d Dist. Montgomery No. 24389 (Feb. 23, 2011). Also in 2011,
Lawrence moved for leave to file a delayed motion for a new trial, which was overruled
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by the trial court. We reversed, and remanded the cause, directing the trial court to
consider Lawrence’s motion on the merits. State v. Lawrence, 2d Dist. Montgomery No.
24725, 2012-Ohio-837. Lawrence’s motion was again overruled, after the trial court
conducted a hearing. We affirmed. State v. Lawrence, 2d Dist. Montgomery No.
25623, 2014-Ohio-417. On the same grounds, seeking a declaration that he should
have been granted a new trial, Lawrence unsuccessfully pursued a petition for habeas
corpus relief in federal court. Lawrence v. Warden, London Correctional Institution, S.D.
Ohio No. 3:14-cv-459, 2014 WL 7338774 (Dec. 22, 2014).
{¶ 4} In the case before us, Lawrence moved to set aside his conviction, arguing
that the trial court lacked subject-matter jurisdiction to enter a judgment of conviction
because of errors in the verdict forms. Lawrence appeals from the overruling of his
motion, on res judicata grounds.
II. The Trial Court Correctly Applied the Doctrine of Res Judicata
{¶ 5} For his sole assignment of error, Lawrence asserts:
THE TRIAL COURT ABUSED ITS DISCRETION BY OVERRULING
APPELLANT’S MOTION ON GROUNDS THAT ANY ISSUE THAT
INVOLVES A VERDICT FORM IS BARRED BY RES JUDICATA
{¶ 6} Lawrence argues that the trial court should not have dismissed his post-
conviction motion on the basis of res judicata. Lawrence claims that because of the
defective verdict forms, the trial court lacked jurisdiction to enter judgment against him.
We agree that res judicata does not bar review of claims based on lack of subject-matter
jurisdiction. “Jurisdiction means the courts' statutory or constitutional power to adjudicate
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the case.” Pratts v. Hurley, 102 Ohio St. 3d 81, 2004-Ohio-1980, 806 N.E 2d 992, ¶ 11.
(Internal citations omitted.) “It is only when the trial court lacks subject matter jurisdiction
that its judgment is void; lack of jurisdiction over the particular case merely renders the
judgment voidable.” Id. at ¶ 12. “Because subject-matter jurisdiction goes to the power
of the court to adjudicate the merits of a case, it can never be waived and may be
challenged at any time.” Id. at ¶ 11. In the case before us, we conclude that the trial
court did have jurisdiction to enter judgment against Lawrence.
{¶ 7} We have recently addressed alleged errors on similar verdict forms,
concluding that the verdict forms were not defective. State v. Taylor, 2d Dist.
Montgomery No. 26896, 2016-Ohio-5541. As in the case before us, the defendant in
Taylor argued that the trial court did not have jurisdiction to convict him of murder when
the jury verdict forms did not require the jury to make an affirmative finding that Taylor
acted with “purpose” to commit murder, and did not require the jury to make an affirmative
finding that Taylor had committed the offense of kidnapping as the underlying offense for
the felony murder conviction. We held that the trial court correctly concluded that the jury
did not need to find separately that the murder was purposeful. Id. at ¶ 17. We further
held that juries are not required to make a separate finding of guilt as to the predicate
felony in a felony murder verdict. Id. at ¶ 18, 19.
{¶ 8} In Taylor, we also held that the claim based upon the alleged error in the
verdict form was barred by the doctrine of res judicata, and was only reviewable in a direct
appeal. Taylor at ¶ 21. In reaching this conclusion, we focused on Ohio Supreme Court
precedent, which limits post-conviction reviews to void judgments with sentencing errors
that are contrary to law, such as the failure to impose a mandatory term for post-release
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control. Id., citing State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, 942 N.E.2d 332,
¶ 30. “Generally, sentencing errors do not render a judgment void because such errors
have no effect upon the trial court's jurisdiction.” State v. Holmes, 8th Dist. Cuyahoga No.
100388, 2014-Ohio-3816, ¶ 15.
{¶ 9} In Taylor, we did not address whether a challenge to a non-sentencing issue
– a defective verdict form, for example – can create a void or voidable judgment or
constitute a jurisdictional defect. A void judgment is one that has been imposed by a court
that lacks subject-matter jurisdiction over the case or the authority to act. See State v.
Payne, 114 Ohio St. 3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 27. Unlike a void
judgment, a voidable judgment is one rendered by a court that has both jurisdiction and
authority to act, but the court's judgment is invalid, irregular, or erroneous. See id.
{¶ 10} In support of his argument, Lawrence cites a federal district court case that
was affirmed in U.S. v. Amaya, 731 F.3d 761 (8th Cir. 2013), setting aside a conviction
and ordering a new trial based on an error in the verdict form. In Amaya, the verdict form
had no place for the jury to write in, circle, or check a box to affirmatively indicate whether
its verdict was guilty or not guilty, and an attempt was made to correct this defect by
polling the jury rather than providing a corrected form and returning the jury to deliberate
until a verdict was reached using the correct form. Both the district court and the circuit
court held that the verdict form defect was plain error, but did not conclude that it was a
jurisdictional defect that rendered the judgment void. Amaya at 765.
{¶ 11} When noticed in a direct appeal, plain error may be grounds for a voidable
judgment, resulting in reversal of a conviction, but plain error does not result in the
judgment being void when the error does not involve the trial court’s lack of jurisdiction or
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authority to act. See State v. Johnston, 2d Dist. Montgomery No. 25652, 2013-Ohio-4401,
¶ 15. Unless otherwise provided by the statute governing petitions for post-conviction
relief, R.C. 2953.21, errors that are grounds for a voidable judgment are barred from
review when raised in a post-conviction motion, based on the doctrine of res judicata.
“Pursuant to res judicata, a defendant cannot raise an issue in a motion for postconviction
relief if he or she could have raised the issue on direct appeal. “ State v. Reynolds, 79
Ohio St. 3d 158, 161, 679 N.E.2d 1131 (1997). “A void sentence ‘is not precluded from
appellate review by principles of res judicata, and may be reviewed at any time, on direct
appeal or by collateral attack.’ ” State v. Parson, 2d Dist. Montgomery No. 24641, 2012-
Ohio-730, ¶ 8, quoting State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, 942 N.E.2d
233, at paragraph one of the syllabus.
{¶ 12} For example, it has been held that the court of common pleas lacks
subject-matter jurisdiction to convict a 17-year-old defendant who was not bound over
from juvenile court. State v. Wilson, 73 Ohio St. 3d 40, 652 N.E.2d 196 (1995). See also
Zanesville v. Rouse, 126 Ohio St. 3d 1, 2010-Ohio-2218, 929 N.E.2d 1044, ¶ 5, judgment
vacated in part on reconsideration on other grounds, 126 Ohio St. 3d 1227, 2010-Ohio-
3754, 933 N.E.2d 260 (municipal court has no jurisdiction without the filing of a complaint);
Rocky River v. Bakos, 2015-Ohio-4366, 45 N.E.3d 668 (8th Dist. Cuyahoga) (defendant
could not be prosecuted for violating a protection order that the court did not have
jurisdiction to grant).
{¶ 13} Other attempts to frame a post-conviction motion as an attack on the
court’s subject-matter jurisdiction have failed. See, e.g., State v. Cline, 2d Dist.
Champaign No. 2013CA51, 2014-Ohio-4503 (certain deficiencies in the indictment do not
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deprive the court of subject-matter jurisdiction); State v. Cline, 5th Dist. Richland No. 2009
CA 0091, 2010-Ohio-1144 (statutes not invalid for lack of enacting provisions); State v.
Acevedo, 9th Dist. Lorain No. 14CA10572, 2015-Ohio-2471 (standing of prosecutor to
initiate case not jurisdictional); State v. Morris, 11th Dist. Trumbull No. 2013-T-0019,
2013-Ohio-5485 (failure of clerk to time-stamp a document does not create a jurisdictional
defect).
{¶ 14} We find no support for the proposition that a defect in a jury verdict form
affects a trial court’s subject-matter jurisdiction. Several courts have held that issues
related to jury verdict forms must be raised in the direct appeal, and any attempt to raise
those issues in a subsequent appeal is barred by res judicata. State v. Holmes, 8th Dist.
Cuyahoga No. 100388, 2014-Ohio-3816; State v. Pesci, 11th Dist. Lake No. 2011-L-057,
2011-Ohio-6211; State v. Garner, 11th Dist. Lake No. 2010-L-111, 2011-Ohio-3426; State
v. Evans, 9th Dist. Wayne No. 10CA0027, 2011-Ohio-1449; State v. Foy, 5th Dist. Stark
No. 2009-CA-00239, 2010-Ohio-2445. In the case before us, Lawrence did not raise the
alleged defects in the verdict forms in his direct appeal. State v. Lawrence, 2d Dist.
Montgomery No. 19059, 2002-Ohio-5533.
{¶ 15} “Under the doctrine of res judicata, a final judgment of conviction bars a
convicted defendant who was represented by counsel 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.
Perry, 10 Ohio St. 2d 175, 176, 226 N.E.2d 104 (1967), paragraph nine of the syllabus.
Consequently, “the doctrine serves to preclude a defendant who has had his day in court
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from seeking a second on that same issue. In so doing, res judicata promotes the
principles of finality and judicial economy by preventing endless relitigation of an issue on
which a defendant has already received a full and fair opportunity to be heard.” State v.
Saxon, 109 Ohio St. 3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 18.
{¶ 16} We conclude that because the alleged defect in the verdict form does not
create a jurisdictional defect, the trial court correctly concluded that the issue is now
barred from consideration, based on the doctrine of res judicata. The sole assignment of
error is overruled.
III. Conclusion
{¶ 17} Lawrence’s sole assignment of error having been overruled, the order of
the trial court overruling his motion to set aside his conviction is Affirmed.
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FROELICH and HALL, JJ., concur.
Copies mailed to:
Mathias H. Heck, Jr.
Michele D. Phipps
Phillip H. Lawrence
Hon. Gregory F. Singer