State v. Bozek

[Cite as State v. Bozek, 2016-Ohio-1305.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2015-P-0018
- vs - :
LAWRENCE J. BOZEK, :
Defendant-Appellant. :
Civil Appeal from the Portage County Court of Common Pleas, Case No. 2010 CR
0295.
Judgment: Reversed and remanded.
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Lawrence J. Whitney, Lawrence J. Whitney Co., L.P.A., 137 South Main Street, #201,
Akron, OH 44308 (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Lawrence Bozek, appeals the judgment of the Portage County
Court of Common Pleas denying his second petition for post-conviction relief. At issue
is whether appellant’s conviction is void and, if so, what is the proper remedy? For the
reasons that follow, we reverse and remand.
{¶2} On May 4, 2010, appellant fired multiple shots from a semi-automatic
pistol at his wife, Melinda Bozek, striking her several times while holding her captive in
their home. While Melinda was trying to call 911 for help on her cell phone, appellant
shot her. In the process, he shot off the tips of two of her fingers. Further, while
restraining Melinda’s liberty, appellant terrorized her for hours. At one point during
Melinda’s ordeal, appellant stopped and left her. After this break in the violence, he
returned to the room in the house where he left Melinda. He shot her several more
times. When Melinda tried to leave the house, appellant shot her in the head and leg.
After shooting Melinda, appellant did not attempt to help her or call for medical
assistance.
{¶3} On May 13, 2010, appellant was charged in a two-count indictment with
attempted murder by purposely attempting to cause Melinda’s death, a felony of the first
degree, with a firearm specification (Count 1), and attempted murder by attempting to
cause Melinda’s death as a result of committing or attempting to commit felonious
assault, a felony of the first degree, with a firearm specification (Count 2). Appellant
pled not guilty and not guilty by reason of insanity.
{¶4} On June 14, 2010, appellant was charged in a supplemental indictment,
which reasserted the two counts in the original indictment and included five others:
Counts 3 and 4 charged appellant with two additional counts of attempted murder, each
with a firearm specification. Counts 5 and 6 charged appellant with two counts of
felonious assault with a deadly weapon, to wit: a semi-automatic pistol, a felony of the
second degree, each with a firearm specification. And, finally, Count 7 charged
appellant with kidnapping, a felony of the first degree, with a firearm specification. Once
again, appellant pled not guilty and not guilty by reason of insanity.
{¶5} On July 7, 2010, the trial court entered a judgment finding that the parties
stipulated to a psychiatric report concluding that appellant “is sane and was sane at the
time of the offense” and appellant “is competent to stand trial.”
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{¶6} Appellant’s maximum exposure as to Counts 1, 2, 3, and 4, each charging
attempted murder, was ten years on each plus three years for each specification. As to
Counts 5 and 6, felonious assault, the maximum exposure was eight years for each plus
three years for each specification. And, as to Count 7, kidnapping, the maximum
exposure was ten years plus three years for the specification. Thus, appellant was
looking at seven counts with a potential maximum term of imprisonment of 87 years.
{¶7} On August 13, 2010, pursuant to the parties’ plea bargain, appellant pled
guilty to Count 1, attempted murder (committed purposely), and Count 2, attempted
murder (as a result of committing a felony), and to the firearm specification included in
each of these counts. As part of the plea bargain, the parties also entered a joint
sentencing agreement.
{¶8} In exchange for appellant’s guilty plea, the state agreed to move to nolle
the remaining counts.
{¶9} The trial court found appellant’s guilty plea to be voluntary; accepted the
plea; found appellant guilty; and dismissed the remaining counts pursuant to the state’s
motion. Pursuant to the parties’ joint sentencing agreement, the court sentenced
appellant to a mandatory term of imprisonment of three years for each specification,
each term to be served consecutively to the other, for a total of six years of mandatory
actual incarceration. The court also sentenced appellant to a definite term of
imprisonment of seven years for each count of attempted murder. These two seven-
year terms were to be served consecutively to each other and consecutively to the six-
year sentence for the specifications, for a total of 20 years in prison. Appellant did not
appeal his conviction or sentence.
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{¶10} Seven months later, on March 18, 2011, the trial court entered a nunc pro
tunc sentencing entry, which restated the original sentence with greater specificity.
Appellant did not appeal that judgment either.
{¶11} Eight months later, on November 23, 2011, appellant filed his first petition
for post-conviction relief. He argued his petition was untimely and that the court lacked
jurisdiction to address his petition unless he met the requirements of R.C. 2953.23(A).
In attempting to comply with that statute, appellant argued he was unavoidably
prevented from discovering facts on which he needed to rely to timely present his claim.
As to his substantive claim, appellant argued his trial attorney was ineffective because
he did not adequately advise him regarding his eligibility for judicial release.
{¶12} Further, while appellant’s petition was pending in the trial court, on
December 1, 2011, 16 months after his conviction, appellant filed a motion for delayed
appeal in this court, attempting to appeal the trial court’s August 13, 2010 sentencing
entry.
{¶13} In State v. Bozek, 11th Dist. Portage No. 2011-P-0101, 2012-Ohio-870,
discretionary appeal not allowed by the Supreme Court of Ohio at 2012-Ohio-3054, this
court denied appellant’s motion for delayed appeal. Bozek at ¶7.
{¶14} Meanwhile, on December 5, 2014, the trial court held a status conference
on appellant’s petition for post-conviction relief. At that conference, the parties
discussed State v. Nolan, 141 Ohio St.3d 454, 2014-Ohio-4800, in which the Supreme
Court of Ohio recently held that attempted felony murder is not a cognizable crime in
Ohio because it is impossible to commit. Id. at ¶5.
{¶15} On December 9, 2014, the trial court granted appellant’s motion to
withdraw his petition for post-conviction relief.
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{¶16} Two months later, on January 29, 2015, appellant filed his second petition
for post-conviction relief. In it, appellant incorporated his first petition by reference and
added a second claim for re-sentencing under Nolan, supra. The trial court overruled
the petition without a hearing. Appellant appeals the trial court’s judgment denying his
second petition for post-conviction relief, asserting three assignments of error. Because
the first and third assigned errors are related, they are considered together. They
allege:
{¶17} “[1.] The trial court erred in overruling appellant’s petition to vacate his
plea on its merits for reason [sic] that appellant did demonstrate an infringement of his
constitutional rights as to render the court’s judgment void or voidable.
{¶18} “[3.] The trial court erred when it failed to resentence appellant for reason
[sic] that the appellant plead guilty to a crime that is not cognizable.”
{¶19} In light of the Supreme Court’s holding in Nolan, supra, appellant argues
that his conviction of attempted felony murder in Count 2 of the indictment is void and
asks this court to set aside only that part of his sentence and to set this matter for re-
sentencing only on Count 1, attempted purposeful murder.
{¶20} In general, 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. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-
4642, ¶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. Id.(Emphasis added.) State v. Simpkins, 117 Ohio St.3d 420, 2008-
Ohio-1197, ¶12.
{¶21} Although the trial court had subject matter jurisdiction over the case,
because attempted felony murder is not a cognizable crime in Ohio, the trial court
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lacked authority to sentence appellant and to enter an order of conviction on Count 2.
Therefore, his conviction of that offense is void.
{¶22} This court has held: “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. Britta, 11th Dist. Lake No. 2011-L-041, 2011-Ohio-
6096, ¶14, quoting State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, paragraph one
of the syllabus. “‘The effect of determining that a judgment is void is well established.
It is as though such proceedings had never occurred; the judgment is a mere nullity and
the parties are in the same position as if there had been no judgment.’” State v. Bezak,
114 Ohio St.3d 94, 2007-Ohio-3250, ¶12, quoting Romito v. Maxwell, 10 Ohio St.2d
266, 267-268 (1967).
{¶23} Because appellant’s sentence is void, the 180-day time limitation to file a
petition for post-conviction relief in R.C. 2953.21 did not begin to run and thus
appellant’s petition was not untimely. If a sentence is void, there is no final appealable
order and the 180-day period does not begin to run until a valid sentence is imposed.
See State v. Benford, 9th Dist. Summit No. 24828, 2010-Ohio-54, in which the court
held: “[B]ecause the trial court’s sentencing entry is void, there has been no judgment
from which [the defendant] could file a direct appeal. * * * The time period in which he
can file for post-conviction relief, therefore, has not begun to run.” Id. at ¶8. Further, a
trial court, when confronted with an untimely petition for post-conviction relief that
challenges a sentence that is void, must ignore the procedural irregularities of the
petition, vacate the void sentence, and resentence the defendant. State v. Dawson, 2d
Dist. Greene No. 2012-CA-54, 2013-Ohio-1817, ¶8. Thus, appellant’s argument that his
petition for post-conviction relief was not untimely is irrelevant.
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{¶24} However, while we hold that appellant’s conviction is void, he is not
entitled to the relief he seeks. In the conclusion of appellant’s brief, he “asks that this
Court * * * [f]ind that Appellant’s plea to the Attempted Felony Murder in Count Two is a
nullity and that count two of the indictment is void and remand the case to the trial court
for resentencing on the one remaining count (Purposeful Murder) (sic) and the
accompanying Firearm Specification.” Thus, appellant asks that we find that only his
plea to attempted felony murder is void and that we remand for resentencing only on his
plea to attempted purposeful murder.
{¶25} The Second District addressed this issue in State v. Peck, 2d Dist. Clark
No. 1221, 1978 Ohio App. LEXIS 11167 (Aug. 2, 1978), in which the court stated:
{¶26} When a plea is vacated * * *, the vacation and reversal is complete
as to all portions of the bargain. Both the defendant and the State
are in the same position as if no agreement had been made and
as if no action had been taken by the trial court on the agreement.
Where more than one separate offense is involved in the
agreement, all so involved may be reinstated upon vacation of the
agreement. Re-indictment by the grand jury is not necessary
because upon vacation all are still pending. Id. at *3.
{¶27} Thus, despite appellant’s request that we only find his plea to attempted
felony murder is void, appellant’s guilty plea is void in its entirety and vacated as to all
parts. On remand, the parties shall be in the same position as if no plea agreement had
been entered and the trial court had not taken any action on the plea, and all counts of
the indictment and the supplemental indictment shall be reinstated.
{¶28} Appellant’s first and third assignments of error are sustained.
{¶29} For his second assigned error, appellant alleges:
{¶30} “The trial court erred when it failed to include in its order a finding of fact
and conclusion of law.”
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{¶31} In light of our holding under appellant’s first and third assigned errors, his
second assignment of error is moot.
{¶32} Appellant’s second assignment of error is overruled.
{¶33} For the reasons stated in the opinion of this court, it is the judgment and
order of this court that the judgment of the Portage County Court of Common Pleas is
reversed, and this matter is remanded to the trial court for further proceedings
consistent with the opinion.
TIMOTHY P. CANNON, J.,
THOMAS R. WRIGHT, J.,
concur.
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