State v. Lowe

[Cite as State v. Lowe, 2014-Ohio-1817.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 27199
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
DENNIS RAY LOWE COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 02 09 2684
DECISION AND JOURNAL ENTRY
Dated: April 30, 2014
HENSAL, Presiding Judge.
{¶1} Appellant, Dennis Ray Lowe, appeals the judgment of the Summit County Court
of Common Pleas. This Court affirms.
I.
{¶2} Mr. Lowe was convicted of aggravated murder, attempted aggravated murder, and
gun specifications after a bench trial to a visiting judge in 2002. This Court affirmed his
convictions on appeal. State v. Lowe, 9th Dist. Summit No. 21426, 2003-Ohio-6807. Mr. Lowe
has challenged the validity of the visiting judge’s qualifications to preside over his trial in at least
six separate motions. Most recently, this Court affirmed the trial court’s denial of his motion for
a final appealable order that was filed on the same basis. State v. Lowe, 9th Dist. Summit No.
25475, 2011-Ohio-3355.
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{¶3} In 2013, Mr. Lowe filed a motion in arrest of judgment that was denied by the
trial court on the basis of the doctrine of res judicata. He filed a timely appeal and raises one
assignment of error for this Court’s review.
II.
ASSIGNMENT OF ERROR
STRUCTURAL ERROR WAS CREATED WHEN [THE] STATE OF OHIO
ALLOWED MARY CACIOPPO TO PRESIDE OVER CASE NO. CR-02-09-
2684 WHILE KNOWING THAT SHE LACKED LEGAL AUTHORITY TO
HEAR CRIMINAL CASES AFTER FAILING TO MEET THE ELIGIBILITY
REQUIREMENTS OF GUIDELINES 3, 13 & 15 OF THE GUIDELINES FOR
THE REAPPOINTMENT OF JUDGES, (ARTICLE 12-15) THUS CALLING
FOR AN AUTOMATIC REVERSAL SINCE THE TRIAL COURT IS
WITHOUT JURISDICTION.
{¶4} Mr. Lowe argues that, because the visiting judge was allegedly ineligible to act as
a judge at the time she presided over his bench trial, the trial court lacked jurisdiction over his
case and his convictions are void. This Court does not agree.
{¶5} Mr. Lowe has presented this same argument and appended the same evidence in
support of his various motions. He appears to challenge the visiting judge’s compliance with
continuing legal education requirements and alleges that she was precluded from acting as a
judge in Ohio. In his most recent motion, Mr. Lowe argues that these alleged deficiencies
resulted in a structural error that deprived him of his due process rights.
{¶6} This Court has previously decided that the doctrine of res judicata bars his claims
concerning the visiting judge’s qualifications. Lowe, 2011-Ohio-3355 at ¶ 9. “The doctrine of
res judicata prevents repeated attacks on a final judgment and applies to all issues that were or
might have been previously litigated.” Id. at ¶ 7. Mr. Lowe has made the same argument in all
of his previous motions, including in two motions that were denied and which he did not appeal.
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{¶7} Mr. Lowe maintains that res judicata does not apply to preclude his claims as he
has challenged the jurisdiction of the court. He is correct that void judgments are subject to
collateral attack at any time and are not subject to the application of res judicata. See Lingo v.
State, Slip Opinion No. 2014-Ohio-1052, ¶ 46. However, “[i]t is only when the trial court lacks
subject matter jurisdiction that its judgment is void; lack of jurisdiction over a particular case
merely renders the judgment voidable.” In re J.J., 111 Ohio St.3d 205, 2006-Ohio-5484, ¶ 10,
quoting Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, ¶ 12. Mr. Lowe does not
challenge the propriety of filing his case in the court of common pleas, but rather the
qualifications of the visiting judge to preside over his case. “In a court that possesses subject-
matter jurisdiction, procedural irregularities in the transfer of a case to a visiting judge affect the
court’s jurisdiction over the particular case and render the judgment voidable, not void.” Id. at
paragraph one of the syllabus. See also Ex parte Strang, 21 Ohio St. 610, 616 (1871) (“It is to be
observed that the question raised is not an inquiry into the jurisdiction of the court, but an inquiry
into the right of the judge to hold the office, which is a question entirely distinct from that of the
jurisdiction of the court over the offense.”). Because Mr. Lowe’s argument implies that his
conviction was voidable, res judicata applies to preclude his claims as they could have been
raised on direct appeal. State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, ¶ 30; Lowe,
2011-Ohio-3355, at ¶ 9.
{¶8} Accordingly, the trial court did not err in denying his motion for arrest of
judgment on the basis of res judicata. Mr. Lowe’s assignment of error is overruled.
III.
{¶9} Mr. Lowe’s assignment of error is overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
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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.
JENNIFER HENSAL
FOR THE COURT
CARR, J.
MOORE, J.
CONCUR.
APPEARANCES:
DENNIS RAY LOWE, pro se, Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.