[Cite as State v. Green, 2015-Ohio-4441.]
COURT OF APPEALS
KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. John W. Wise, J.
:
-vs- :
: Case No. 15-CA-13
SHANE L. GREEN :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Knox County
Court of Common Pleas, Case No.
08CR01-0004
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 23, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHARLES T. MCCONVILLE SHANE L. GREEN PRO SE
Knox County Prosecuting Attorney Marion Correctional Institution
117 East High Street, Ste. 234 Box 57
Mount Vernon, OH 43050 Marion, OH 43301
Knox County, Case No. 15-CA-13 2
Gwin, P.J.
{¶1} Appellant appeals the April 3, 2015 judgment entry of the Knox County
Common Pleas Court treating his motion to vacate and dismiss void judgment as a
motion for post-conviction relief and denying the motion. Appellee is the State of Ohio.
Facts & Procedural History
{¶2} Appellant Shane Green was indicted on January 8, 2008, by the Knox
County Grand Jury on one count of rape of a child under the age of ten, in violation of
R.C. 2907.02(A)(1)(b), a felony of the first degree, and one count of gross sexual
imposition, in violation of R.C. 2907.05(A)(4), a felony of the third degree. Appellant
was accused of raping his eight-year-old biological daughter.
{¶3} After a jury trial, appellant was convicted of both counts and sentenced to
a definite term of life imprisonment on Count One and a term of five years on Count
Two, with the terms to run consecutively. On June 18, 2008, appellant appealed his
conviction to this Court. In State v. Green, 5th Dist. Knox No. 08-CA-20, 2009-Ohio-
2065. In this direct appeal, appellant argued as follows: (1) the indictment was
defective; (2) ineffective assistance of trial counsel; and (3) the mens rea in the jury
instructions was incorrect. The transcript was filed with this Court on July 28, 2008. On
May 1, 2009, this Court affirmed the judgment of the Knox County Court of Common
Pleas. Id.
{¶4} On March 11, 2015, appellant filed a motion to vacate and dismiss void
judgment. Appellant argued that the trial court lacked jurisdiction over him because he
was not sworn in under oath during the grand jury proceedings, the indictment was
defective, and the arrest warrant issued for him was not valid. Appellee filed a
Knox County, Case No. 15-CA-13 3
memorandum of objection on March 13, 2015. Appellant filed a rebuttal on March 26,
2015. On April 3, 2015, the Knox County Court of Common Pleas issued a judgment
entry denying appellant’s motion. The trial court treated the motion as a motion for
post-conviction relief due to the fact that appellant contends his constitutional rights
were violated. The trial court found appellant’s motion for post-conviction relief was
untimely and was barred due to res judicata.
{¶5} Appellant appeals the April 3, 2015 judgment entry of the Knox County
Court of Common Pleas and assigns the following as error:
{¶6} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY NOT ORDERING
AN EVIDENTIAL HEARING ON A CHALLENGE OF JURISDICTION OF PERSONAM
AND SUBJECT-MATTER.
{¶7} "II. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING
DEFENDANT’S CHALLENGE OF JURISDICTION IN RESPONSE OF RULING
DEFENDANT’S CHALLENGE OF JURISDICTION AS A POST-CONVICTION
PETITION.”
II.
{¶8} For ease of discussion, we will first address appellant's second
assignment of error. Appellant claims the trial court erred and abused its discretion in
construing his motion as a petition for post-conviction relief. Instead, appellant argues
that he is challenging the jurisdiction of the trial court to convict him.
{¶9} Appellant cites to State v. Davies in support of his argument that his
challenge is one of subject matter jurisdiction. 11th Dist. Ashtabula No. 2012-A-0034,
2013-Ohio-436. Davies involved a subject matter jurisdiction challenge to a
Knox County, Case No. 15-CA-13 4
misdemeanor conviction where the defendant was charged in a criminal complaint
subject to Criminal Rule 3. Id. However, Davies is distinguishable from the instant
case, as appellant was not charged in a criminal complaint subject to the requirements
of Criminal Rule 3, but he was indicted by a grand jury.
{¶10} Although appellant couches his motion as a challenge to subject matter
jurisdiction, his motion must be treated as a petition for post-conviction relief, regardless
of the manner in which appellant actually presents the motion to the court.
{¶11} A motion that is not filed pursuant to a specific rule of criminal procedure
"must be categorized by a court in order for the court to know the criteria by which the
motion should be judged." State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, 773
N.E.2d 522. Where a defendant, subsequent to a 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 post-conviction relief as defined
by R.C. 2953.21. State v. Reynolds, 79 Ohio St.3d 158, 1997-Ohio-304, 679 N.E.2d
1131.
{¶12} Appellant's motion satisfies this definition of a petition for post-conviction
relief. First, the motion was filed subsequent to appellant's direct appeal. Further, the
motion claims a denial of constitutional rights, as appellant alleges: that his 5th
Amendment rights were violated during grand jury testimony; that his indictment was
defective in violation of the Ohio Constitution, Section 10, Article 1; and that his arrest
warrant was invalid. In his motion, appellant specifically alleges violations of his rights
under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution and
under Section 10, Article 1 of the Ohio Constitution. Third, appellant seeks to have the
Knox County, Case No. 15-CA-13 5
judgment rendered void. Fourth, appellant states that the remedy he seeks is to vacate
and dismiss the judgment.
{¶13} Accordingly, the trial court properly construed appellant's motion as a
petition for post-conviction relief. See State v. King, 5th Dist. Muskingum No. CT2008-
0062, 2009-Ohio-412. Appellant's second assignment of error is overruled.
I.
{¶14} Appellant contends that the trial court erred by denying his motion without
conducting an evidentiary hearing. We disagree. We apply an abuse of discretion
standard when reviewing a trial court's decision to deny a post-conviction relief petition
without a hearing. State v. Holland, 5th Dist. Licking No. 12-CA-56, 2013-Ohio-905. An
abuse of discretion connotes more than an error of law or judgment; it entails a decision
that is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 450 N.E.2d 1140 (1983).
{¶15} Under R.C. 2953.21, a petitioner seeking post-conviction relief is not
automatically entitled to an evidentiary hearing. State v. Calhoun, 86 Ohio St.3d 279,
714 N.E.2d 905 (1999). The Ohio Supreme Court has held that the proper basis for
dismissing a petition for post-conviction relief without holding an evidentiary hearing
includes: (1) the failure of the petitioner to set forth sufficient operative facts to establish
substantive grounds for relief, and (2) the operation of res judicata to bar the
constitutional claims raised in the petition. Id.; State v. Lentz, 70 Ohio St.3d 527, 639
N.E.2d 784 (1994). In this case, the record reflects that appellant failed to submit any
supporting affidavits or other evidentiary documents containing sufficient operative facts
to support any of the claims presented.
Knox County, Case No. 15-CA-13 6
{¶16} Further, under the doctrine of res judicata, a defendant who was
represented by counsel is barred from raising an issue in a petition for post-conviction
relief if the defendant raised or could have raised the issue at trial or on direct appeal.
State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967); State v. Szefcyk, 77 Ohio
St.3d 93, 1996-Ohio-337, 671 N.E.2d 233. The allegations appellant makes in his
petition concerning the grand jury proceeding, indictment defects, and arrest warrant
defects could all have been raised or were raised in his direct appeal. Therefore, the
trial court did not abuse its discretion in overruling appellant's motion without a hearing.
{¶17} Finally, as appellant's motion is properly construed as a petition for post-
conviction relief, it is apparent that it should have been denied or dismissed without a
hearing because it was filed well beyond the time limits set by R.C. 2953.21. R.C.
2953.21 requires that a petition for post-conviction relief be filed no later than three
hundred sixty five days after the date on which the trial transcript is filed in the court of
appeals in the direct appeal of the judgment of conviction. In this case, the transcript
was filed with this Court on July 28, 2008. Appellant has made no attempt to show that
any of the exceptions to R.C. 2953.23(A)(1) applies to his untimely motion. When a
petition for post-conviction relief is filed untimely and does not meet the requirements of
R.C. 2953.23(A)(1), a trial court lacks jurisdiction to entertain the merits of the petition or
hold a hearing. State v. Lynn, 5th Dist. Muskingum No. CT2007-0046, 2008-Ohio-2149.
Accordingly, the trial court did not err in failing to conduct an evidentiary hearing on the
motion as it was untimely filed. Id.
Knox County, Case No. 15-CA-13 7
{¶18} The trial court did not abuse its discretion in denying appellant's motion
without conducting an evidentiary hearing. Appellant's first assignment of error is
overruled.
{¶19} Based on the foregoing, appellant's assignments of error are overruled.
The April 3, 2015 judgment entry of the Knox County Common Pleas Court is affirmed.
By Gwin, P.J.,
Hoffman, J., and
Wise, J., concur