State v. Hammond

[Cite as State v. Hammond, 2021-Ohio-2493.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-190597
TRIAL NO. B-0708161-B
Plaintiff-Appellee, :
vs. : O P I N I O N.
RAYMOND HAMMOND, JR., :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed as Modified
Date of Judgment Entry on Appeal: July 21, 2021
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Michael K. Allen & Associates, Michael K. Allen and Bryan R. Perkins, for
Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Presiding Judge.
{¶1} Defendant-appellant Raymond Hammond, Jr., appeals the Hamilton
County Common Pleas Court’s judgment denying the relief sought in his “Motion to
Vacate and Set-Aside Judgment Due to Void Sentence.” We affirm the court’s
judgment as modified to dismiss the motion.
Procedural Posture
{¶2} In 2008, Hammond was convicted upon jury verdicts finding him
guilty of attempted murder and two counts of felonious assault for shooting
Alejandro Camacho three times and on one of two counts charging felonious assault
for shooting Carlos Morales once. In June 2009, this court decided Hammond’s
appeal from those convictions. We reversed the two felonious-assault convictions
involving Camacho and remanded for resentencing, upon our determination that
those offenses were allied offenses of similar import subject to merger under the
multiple-counts statute, R.C. 2941.25. We affirmed Hammond’s attempted-murder
conviction, holding that the multiple-counts statute did not mandate merging that
offense with either felonious-assault offense. State v. Hammond, 1st Dist. Hamilton
Nos. C-080394, C-080431 and C-080394 (June 3, 2009).
{¶3} Pursuant to our mandate, the trial court conducted a resentencing
hearing on July 17, 2009. But the trial court did not enter the judgment of conviction
until July 22. Meanwhile, on July 17, the trial court entered an entry appointing
counsel “for the purpose of prosecuting [an] appeal [from Hammond’s resentencing],
and if Counsel deems necessary, to pursue an appeal to the Supreme Court of Ohio.”
And on July 20, appointed counsel appealed to the Supreme Court this court’s decision
in the direct appeal.
{¶4} The July 22, 2009 judgment of conviction reflected, for the offenses
involving Camacho, Hammond’s conviction for attempted murder, the verdicts
finding him guilty on two counts of felonious assault, and consistent with our
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OHIO FIRST DISTRICT COURT OF APPEALS
mandate, the imposition of a prison sentence on only one of the two felonious-
assault counts. Concerning the two felonious-assault charges involving Morales, the
judgment mistakenly stated that Hammond had been found guilty of both counts, but
did not impose a sentence for the felonious-assault count on which he had been
acquitted.
{¶5} In April 2010, following its January 2010 decision in State v. Williams,
124 Ohio St.3d 381, 2010-Ohio-147, 922 N.E.2d 937, the Supreme Court decided
Hammond’s appeal of this court’s decision in the direct appeal. With respect to
Hammond’s offenses involving Camacho, the Supreme Court affirmed that part of this
court’s judgment holding that Hammond “may be convicted of one count of attempted
murder.” But the Supreme Court reversed that part of our judgment holding that
Hammond “may not be convicted of two counts of felonious assault,” “reinstated” the
2008 judgment of conviction, and “ordered that a mandate be sent to the Court of
Common Pleas for Hamilton County to carry [the Supreme Court’s] judgment into
execution.” Despite that “mandate,” the trial court took no further action.
{¶6} Hammond unsuccessfully sought to reanimate his merger challenges in
pro se motions filed in 2011, 2013, 2014, and 2018. In his 2018 “Motion to Vacate and
Set-Aside Judgment Due to Void Sentence,” he asserted that his sentences for
attempted murder and the two felonious assaults involving Camacho were void,
because they were imposed in violation of the multiple-counts statute and the Double
Jeopardy Clauses of the Fifth Amendment to the United States Constitution and
Article I, Section 10, of the Ohio Constitution. In this appeal from the overruling of
that motion, Hammond presents three assignments of error.
No Jurisdiction to Entertain the Motion
{¶7} The first and second assignment of error essentially restate claims
presented in Hammond’s “Motion to Vacate and Set-Aside Judgment Due to Void
Sentence” and thus may fairly be read together to challenge the denial of that
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OHIO FIRST DISTRICT COURT OF APPEALS
motion. We conclude that the common pleas court had no jurisdiction to entertain
the motion.
{¶8} Hammond did not designate in his motion a statute or rule under
which the relief sought may have been afforded. The common pleas court was thus
left to “recast” the motion “into whatever category necessary to identify and establish
the criteria by which the motion should be judged.” State v. Schlee, 117 Ohio St.3d
153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12 and syllabus.
{¶9} Under R.C. 2953.21 et seq., the postconviction statutes, a common
pleas court may grant relief from a conviction upon proof of a constitutional violation
during the proceedings resulting in that conviction. See R.C. 2953.21(A)(1); State v.
Powell, 90 Ohio App.3d 260, 264, 629 N.E.2d 13 (1st Dist.1993). R.C. 2941.25,
governing the matter of sentencing on multiple counts charged in the same
indictment, effectuates the protections against multiple punishments for the same
offense secured under the state and federal Double Jeopardy Clauses. State v.
Payne, 1st Dist. Hamilton No. C-790257, 1980 WL 352849 (May 28, 1980). Because
Hammond’s postconviction allied-offenses and double-jeopardy claims sought relief
based on alleged constitutional violations during the proceedings resulting in his
convictions, they were reviewable by the common pleas court under the standards
provided by the postconviction statutes.
{¶10} But Hammond filed his motion well after the time prescribed by R.C.
2953.21(A)(2) had expired. And he failed to satisfy the R.C. 2953.23 jurisdictional
requirements for filing a late postconviction petition, when he did not show either
that he had been unavoidably prevented from discovering the facts upon which his
postconviction claims depended, or that his claims were predicated upon new and
retrospectively applicable rights recognized by the United States Supreme Court
since the time for filing the claims had expired. Consequently, the postconviction
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OHIO FIRST DISTRICT COURT OF APPEALS
statutes did not confer upon the common pleas court jurisdiction to entertain those
claims. See R.C. 2953.23(A)(1)(a).
{¶11} Nor could the common pleas court have granted relief under its
jurisdiction to correct a void judgment. See State ex rel. Cruzado v. Zaleski, 111 Ohio
St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 18-19. The alleged allied-offenses
error, even if demonstrated, would not have rendered Hammond’s convictions void,
because the trial court had personal jurisdiction by virtue of Hammond’s indictment
for felony offenses and subject-matter jurisdiction to convict him of those offenses.
See State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, ¶ 4-6
and 41 (“realign[ing]” the court’s void-versus-voidable jurisprudence with the
“traditional” rule that a judgment of conviction is voidable, not void, if entered by a
court having personal and subject-matter jurisdiction).
{¶12} The common pleas court had no jurisdiction to entertain Hammond’s
“Motion to Vacate and Set-Aside Judgment Due to Void Sentence.” Therefore, the
court properly declined to grant the relief sought in that motion. Accordingly, we
overrule the first and second assignments of error.
2009 Judgment of Conviction Not Correctable under Crim.R. 36
{¶13} In his third assignment of error, Hammond asks that he again be
“resentence[ed],” because the 2009 judgment of conviction, resentencing him on
remand from this court’s decision in the direct appeal, misstated that the jury had
found him “guilty” on count 5, charging felonious assault of Morales, when the jury
had actually acquitted him of that charge. Hammond is not entitled to the relief
sought.
{¶14} Crim.R. 36 authorizes a court to “correct[] * * * at any time” “clerical
mistakes in judgments.” Although the 2009 judgment of conviction was entered
pursuant to this court’s remand in the direct appeal, the trial court had lost
jurisdiction to act in Hammond’s case after appointed counsel appealed our decision
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OHIO FIRST DISTRICT COURT OF APPEALS
to the Supreme Court. See State ex rel. Special Prosecutors v. Judges, Court of
Common Pleas, 55 Ohio St.2d 94, 97, 378 N.E.2d 162 (1978); State v. Morgan, 1st
Dist. Hamilton No. C-140146, 2014-Ohio-5325, ¶ 12. Therefore, the 2009 judgment
of conviction constituted a legal nullity. See Farris v. State, 1 Ohio St. 188, 189
(1853) (applying the fundamental principle that a judgment of a court acting without
jurisdiction is a “nullity”).
Moreover, in that appeal, the Supreme Court reversed that part of this court’s
judgment in the direct appeal reversing Hammond’s felonious-assault convictions
involving Camacho, “reinstated” the 2008 judgment of conviction, and “mandate[d]”
that its judgment be “execut[ed]” by the trial court. Despite the trial court’s failure to
follow that mandate, Hammond stands convicted under the “reinstated” judgment of
conviction entered in 2008.
Because there was no 2009 judgment of conviction, the clerical error in that
judgment was not subject to correction under Crim.R. 36. Accordingly, we overrule
the third assignment of error.
Affirmed as Modified to Dismiss
{¶15} The common pleas court lacked jurisdiction to afford Hammond the
relief sought in his “Motion to Vacate and Set-Aside Judgment Due to Void
Sentence.” Accordingly, upon the authority of App.R. 12(A)(1)(a), we modify the
common pleas court’s judgment to reflect dismissal of the motion. And we affirm the
judgment as modified.
Judgment affirmed as modified.
CROUSE and WINKLER, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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