State v. Harris

[Cite as State v. Harris, 2023-Ohio-506.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-220251
TRIAL NO. B-1906789
Plaintiff-Appellee, :
vs. :
O P I N I O N.
LIONEL HARRIS, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed As Modified
Date of Judgment Entry on Appeal: February 22, 2023
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Lionel Harris, pro se.
OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Judge.
{¶1} In this appeal, defendant-appellant Lionel Harris challenges the trial
court’s entry denying his motion to vacate court costs and fines. For the following
reasons, we recast his request to vacate his fines as a petition for postconviction relief
and affirm the trial court’s judgment as modified to reflect a dismissal of that petition
and his motion to vacate court costs.
I. Facts and Procedure
{¶2} In 1992, a jury convicted Harris and a codefendant of aggravated
murder. Initially, Harris’s case was assigned to Judge Nurre. Yet, Judge Schott, a
visiting judge, presided over Harris’s trial. At his sentencing hearing, Judge Schott
imposed a life sentence with parole eligibility and “$25,000 on both defendant[sic].”
The corresponding entry, signed by Judge Nurre on behalf of Judge Schott, stated:
Defendant is sentenced to be imprisoned in Department of Corrections
FOR A TERM OF LIFE.
(ELIGIBILITY FOR PAROLE IN TWENTY (20) YEARS)
PAY COSTS
($25,000.00 FINE)
{¶3} Through a series of original actions in this court, Harris has
unsuccessfully attempted to challenge the propriety of Judge Nurre’s entry. In 2013,
Harris petitioned this court for writs of mandamus and prohibition, arguing the entry
signed by Judge Nurre was void. See State ex rel. Harris v. Hamilton Cty. Court of
Common Pleas, 139 Ohio St.3d 149, 2014-Ohio-1612, 9 N.E.3d 1057, ¶ 2 (“Harris I”).
We dismissed the petitions. Id. at ¶ 1. The Ohio Supreme Court affirmed our dismissal
and characterized Judge Nurre’s entry as a nondiscretionary, ministerial act, because
he “merely journalized th[e] sentence without alteration.” Id. at ¶ 10.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} In 2018, Harris successfully petitioned this court for a writ of
mandamus to compel the Hamilton County Clerk of Courts to produce public records
relating to the assignment of his case to Judge Nurre, the transfer of the case to visiting
Judge Schott, and the transfer of the case back to Judge Nurre. See State ex rel. Harris
v. Pureval, 155 Ohio St.3d 343, 2018-Ohio-4718, 121 N.E.3d 337, ¶ 4 (“Harris II”).
{¶5} In 2021, Harris petitioned this court for a writ of mandamus, seeking an
order directing the Hamilton County Court of Common Pleas to vacate his sentence
and resentence him and to return funds and court costs paid. See State ex rel. Harris
v. Hamilton Cty. Clerk of Courts, 168 Ohio St.3d 99, 2022-Ohio-477, 196 N.E.3d 777,
¶ 1 (“Harris III”). The Ohio Supreme Court affirmed this court’s dismissal, explaining
that a sentence may be challenged through a collateral attack “in an extraordinary writ
action” if the sentence is void for lack of personal or subject-matter jurisdiction. Id. at
¶ 8. Because Harris challenged the exercise of jurisdiction, any alleged sentencing
error would render his sentence voidable, and sentencing errors are inappropriately
challenged in mandamus actions. Id. Therefore, the Ohio Supreme Court dismissed
his appeal. Id.
{¶6} In 2022, Harris moved to vacate his court costs and fines under R.C.
2947.23. Harris argued that Judge Schott ordered an unspecified $25,000 financial
obligation, and that Judge Nurre lacked authority to impose $25,000 in court costs
and fines. The trial court “conducted a review of the record” and denied Harris’s
motion to vacate costs and fines. It is from that denial that Harris appeals, raising six
assignments of error.
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OHIO FIRST DISTRICT COURT OF APPEALS
II. Law and Analysis
A. Court Costs and Fines
{¶7} In his first assignment of error, Harris maintains that the trial court
abused its discretion when it denied his motion to vacate court costs and fines. The
record is clear that Harris was fined $25,000, the maximum amount permitted under
R.C. 2929.02(A) (“the offender may be fined an amount fixed by the court, but not
more than twenty-five thousand dollars.”). Harris was also assessed $2,335.92 in court
costs. In his motion, Harris conceded that the fine and court costs were satisfied in
1992. The record indicates the same.
{¶8} As an initial matter, we pause to emphasize the “major distinction
between fines and court costs.” Strattman v. Studt, 20 Ohio St.2d 95, 102, 253 N.E.2d
749 (1969). Court costs are “a civil debt,” and entirely separate from a criminal
sentence. State v. Ushery, 1st Dist. Hamilton No. C-120515, 2013-Ohio-2509, ¶ 15. By
their very nature, court costs are nonpunitive. See State v. Swift, 2d Dist. Montgomery
No. 20543, 2005-Ohio-1595, ¶ 21. Mere participation in a court proceeding triggers
court costs, which are “assessed to defray the administrative costs of litigation.”
Strattman at 102-103; See, e.g., State v. Hunter, 1st Dist. Hamilton No. C-200160,
2021-Ohio-2423, ¶ 17. In contrast, R.C. 2929.02(A) vests a trial court with the
authority to impose up to $25,000 in fines on an individual convicted of aggravated
murder as part of the criminal sentence. As part of a sentence, “fines ‘serve a punitive,
retributive, or rehabilitative purpose.’ ” State v. Housley, 2d Dist. Miami No. 2020-
CA-1, 2020-Ohio-4489, ¶ 9, quoting Strattman at 102. And so we review Harris’s
$25,000 fine “just as we would any other” criminal sentence. State v. Owens, 1st Dist.
Hamilton No. C-170413, 2018-Ohio-1853, ¶ 5.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶9} Beginning with court costs, Harris’s motion to vacate court costs was
not properly before the trial court. We recognize that his motion invoked the trial
court’s continuing jurisdiction “to waive, suspend, or modify the payment of costs of
prosecution, including any costs under section 2947.231 of the Revised Code at the
time of sentencing or anytime thereafter.” R.C. 2947.23(C). But “R.C. 2947.23(C) does
not compel or even allow a trial court to order reimbursement of court costs already
paid.” State v. Braden, 158 Ohio St.3d 462, 2019-Ohio-4204, 145 N.E.3d 235, ¶ 30.
Rather, R.C. 2947.23(C) is the proper mechanism to challenge “the payment of costs
if costs remain.” (Emphasis added.) Id. In his motion, Harris acknowledged that his
court costs were satisfied in 1992. Indeed, Harris attached a copy of the docket
indicating as much. As the Ohio Supreme Court recognized in Braden, the trial court
was unable to issue an order for Harris’s reimbursement. In short, Harris’s motion to
vacate court costs was not properly before the trial court.
{¶10} Turning to Harris’s $25,000 fine, the trial court lacked jurisdiction to
consider his motion, and his arguments are barred by res judicata. In his motion
Harris asked the court to modify or vacate his fine under R.C. 2947.23(C) and argued
against recasting his motion as a petition for postconviction relief under R.C. 2953.21.
First, a trial court retains its jurisdiction under R.C. 2947.23(C) for the limited
purposes of considering whether to “waive, suspend, or modify the payment of costs
of prosecution.” The statute makes no mention of financial sanctions or fines. And
again, the law distinguishes fines from court costs. Therefore, we must treat Harris’s
motion as a request to modify or vacate part of his criminal sentence.
{¶11} To that end, we construe his motion as an untimely petition for
postconviction relief, which is the proper mechanism to ask the trial court to modify
or vacate a criminal sentence. See R.C. 2953.21(A)(1)(a). Indeed, “where a criminal
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OHIO FIRST DISTRICT COURT OF APPEALS
defendant, subsequent to his or her direct appeal, files a motion seeking vacation or
correction of his or her sentence on the basis that his or her constitutional rights have
been violated, such a motion is a petition for postconviction relief as defined in R.C.
2953.21.” State v. Reynolds, 79 Ohio St.3d 158, 160, 679 N.E.2d 1131 (1997). Harris
challenged his sentence and filed his motion after his direct appeal. While Harris
insisted that he was not alleging a violation of a constitutional right, he maintained
that Judge Nurre imposed his sentence outside of Harris’s presence. In support, Harris
relied on this court’s opinion in State v. Carpenter, 1st Dist. Hamilton No. C-950889,
1996 Ohio App. LEXIS 4434, 4 (Oct. 9, 1996). But in Carpenter, we explained that
defendants “ha[ve] a right of due process, embodied in Crim.R. 43(A), to be present
when [the defendant’s] sentence was modified.” Id. Harris’s motion is properly
understood as a petition for postconviction relief. In any event, his petition is
untimely, as it was filed outside of the 365-day deadline under R.C. 2953.21(A)(2)(a).
{¶12} Further, Harris’s contentions are barred by res judicata. Res judicata
bars a “convicted defendant from litigating a postconviction claim that was raised or
could have been raised at trial or on direct appeal.” State v. Bethel, 167 Ohio St.3d 362,
2022-Ohio-783, 192 N.E.3d 470, ¶ 17, citing State v. Perry, 10 Ohio St.2d 175, 226
N.E.2d 104 (1967), paragraph nine of the syllabus. The facts relevant to Harris’s claim
were established at his sentencing hearing in 1992. Harris’s claim is limited to facts
that were in the record at the time of his direct appeal.
{¶13} Yet, Harris maintains that he was unable to raise this argument on
direct appeal due to the “terrible condition” of the trial transcripts in 1992. In other
words, Harris suggests he could not have litigated this issue in the first action. In
Harris’s direct appeal, we denied him the opportunity to enter a corrected transcript
into the record. While we affirmed Harris’s conviction, we recognized in a footnote the
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OHIO FIRST DISTRICT COURT OF APPEALS
“many problems with the transcript of the proceedings, including many passages that
read incoherently.” State v. Harris, 1st Dist. Hamilton Nos. C-920151 and C-920158,
7 (Feb. 25, 1994) fn. 10. And the dissent described the transcripts as “incoherent and
incomprehensible.” Id. at 25 (Doan, J., dissenting). But critically, these transcript
defects avoid the portions of the sentencing transcript relevant to this matter. At all
times, the transcript included Judge Schott’s imposition of a life sentence and
“$25,000 on both defendant[sic].” In other words, Harris could have challenged his
fine on direct appeal, but failed to do so. Therefore, res judicata prohibits Harris from
raising his claim now.
{¶14} In sum, the first assignment of error is dismissed. Because Harris’s
court costs were satisfied in 1992, the trial court lacked authority under R.C.
2947.23(C) to entertain this claim. And we recast Harris’s challenge to his $25,000
fine as an untimely petition for postconviction relief over which the trial court lacked
jurisdiction. Finally, even if the trial court had jurisdiction to hear Harris’s challenge
to his fine, his claim would be barred by res judicata.
B. Judicial Authority
{¶15} In his second assignment of error, Harris challenges Judge Hatheway’s
authority to rule on his motion. According to Harris, irregularities surrounding Judge
Hatheway’s assignment to his case deprived her of her judicial authority to enter her
order denying his motion. Harris asserts that the improper transfer of his case
constitutes a violation of his state and federal constitutional rights to due process and
equal protection under the law.
{¶16} But a direct appeal is not the proper avenue to challenge Judge
Hatheway’s authority. The power and authority of a judicial officer “cannot be
collaterally attacked” in an appeal of that judicial officer’s order. State v. Hill, 2d Dist.
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OHIO FIRST DISTRICT COURT OF APPEALS
Montgomery No. 24966, 2012-Ohio-5210, ¶ 22. As such, this court may not review a
judicial officer’s exercise of her power in an appeal of an adverse judgment rendered
in the underlying action. State v. Baumgartner, 6th Dist. Ottawa No. OT-03-013,
2004-Ohio-3907, ¶ 11. Because this issue is not reviewable on direct appeal, we
overrule Harris’s second assignment of error.
C. Remaining Assignments of Error
{¶17} In his remaining assignments of error, Harris challenges a few
irregularities that have occurred in the course of this appeal.
{¶18} In his third and fourth assignments of error, Harris maintains the
Hamilton County Clerk of Courts violated his rights under the Fourteenth Amendment
to the United States Constitution and Article I, Section 16, of the Ohio Constitution.
First, he contends the clerk violated his rights by providing allegedly conflicting
deadlines for filing his appellant brief. Second, he alleges the clerk refused to file his
sentencing transcripts, in violation of his constitutional rights. But Harris invokes our
appellate jurisdiction under R.C. 2501.02(C), which limits our authority to “review,
affirm, modify, set aside, or reverse judgments or final orders of courts of record
inferior to the court of appeals within the district.” The clerk of courts is not a court of
record. And these claims raise issues that are outside the scope of the judgment of the
trial court. So, these assignments of error are not properly before this court on appeal.
{¶19} Moreover, these claims are moot. An issue is moot when the parties have
no legally cognizable interest in the outcome, or an event “ ‘renders it impossible for
the court to grant any relief’ ” to an aggrieved party. State ex rel. Gaylor, Inc. v.
Goodenow, 125 Ohio St.3d 407, 2010-Ohio-1844, 928 N.E.2d 728, ¶ 10, quoting Miner
v. Witt, 82 Ohio St. 237, 92 N.E. 21 (1910), syllabus. While Harris argues that the
scheduling ambiguities violated his rights, in August 2022 this court issued an order
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OHIO FIRST DISTRICT COURT OF APPEALS
extending the deadline for Harris’s appellate brief to September 21, 2022. Harris
successfully filed his brief. And while Harris contends his rights were violated when
the clerk failed to transmit a transcript of his scheduling hearing, we confirmed in that
same order that the transcript pages requested by Harris had been delivered to this
court. In sum, that order ended the controversy and renders it impossible to grant any
relief to Harris on these claims.
{¶20} Still more, his sixth assignment of error is moot. Harris contends that
the trial court attempted to deny him his right to an appeal when it failed to order
service of its decision. But our consideration of his appeal renders this assignment of
error moot. Therefore, we dismiss his third, fourth, and sixth assignments of error.
{¶21} Finally, Harris argues that he was denied his right to equal protection
under the law as guaranteed by the Fourteenth Amendment to the United States
Constitution in his fifth assignment of error. As we understand it, Harris is raising a
class-of-one claim under the Equal Protection Clause. Harris carries a heavy burden
to show that he “ ‘has been intentionally treated differently from others similarly
situated and that there is no rational basis for the difference in treatment.’ ” Clark v.
Adult Parole Auth., 151 Ohio St.3d 522, 2017-Ohio-8391, 90 N.E.3d 909, ¶ 15, quoting
Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000).
Harris has failed to establish the elements of a class-of-one claim under the Equal
Protection Clause. Therefore, we overrule his fifth assignment of error.
III. Conclusion
{¶22} In sum, we dismiss Harris’s assignments of error. The trial court’s
judgment is modified to reflect a dismissal of Harris’s motion and petition for
postconviction relief. We affirm that judgment as modified.
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OHIO FIRST DISTRICT COURT OF APPEALS
Judgment affirmed as modified.
CROUSE, P.J., and WINKLER, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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