[Cite as State v. Smith , 2018-Ohio-2938.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 106486
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
WILLIE SMITH
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-95-325283-ZA
BEFORE: McCormack, P.J., Celebrezze, J., and Jones, J.
RELEASED AND JOURNALIZED: July 26, 2018
FOR APPELLANT
Willie Smith, pro se
Inmate No. 312990
Richland Correctional Institution
1001 Olivesburg Road
Mansfield, OH 44901
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
Katherine Mullin
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, P.J.:
{¶1} Defendant-appellant Willie Smith (“Smith”) appeals the trial court’s denial of his
common law motion to correct void judgment. For the reasons that follow, we affirm.
Procedural and Substantive History
{¶2} This appeal stems from Smith’s 1995 criminal convictions. Smith was indicted
in one case with two counts of aggravated murder with felony and firearm specifications and one
count of having a weapon while under disability. He was indicted in another case with one
count of kidnapping, and the cases were consolidated for trial. A jury found Smith guilty of one
count of aggravated murder and one count of kidnapping and not guilty of the remaining counts
and specifications. The trial court sentenced Smith to 10 to 25 years for kidnapping and a term
of life for aggravated murder, to run consecutively.
{¶3} Smith appealed his conviction, raising 12 assignments of error, including
inconsistent verdicts. This court affirmed Smith’s convictions in 1997. State v. Smith, 8th
Dist. Cuyahoga Nos. 69799, 70451, 71643, 1997 Ohio App. LEXIS 4892 (Nov. 6, 1997).
{¶4} Smith also filed a motion for a new trial and a petition for postconviction relief.
The trial court denied both the motion and petition, and this court affirmed the trial court’s
judgment. State v. Smith, 8th Dist. Cuyahoga No. 78229, 2001 Ohio App. LEXIS 2076, 1 (May
10, 2001). Smith subsequently filed another motion for a new trial. This motion was also
denied. Smith appealed again, and this court dismissed the appeal. Smith filed a second
petition for postconviction relief in 2009, and this too was denied. On appeal, this court again
affirmed the trial court’s decision.
{¶5} On June 21, 2017, Smith filed a common law motion to correct void judgment,
arguing that the trial court imposed a void sentence in 1995. According to Smith,
the jury acquitted [him] of aggravated murder in [C]ount 3 when the jury made a
unanimous factual finding beyond a reasonable doubt of “not guilty” on the
felony-murder specifications attached to the aggravated murder and that [finding]
negated one or more of the essential elements of the aggravated murder as charged
in [C]ount 3.
The trial court denied this motion, and Smith appealed, presenting two assignments of error for
our review.
Law and Analysis
{¶6} In Smith’s first assignment of error, he argues that the trial court abused its
discretion when it denied his common law motion to correct void judgment. In his second
assignment of error, he argues that the trial court imposed a sentence that is contrary to law when
it failed to impose a mandatory consecutive sentence pursuant to former R.C. 2929.41(B)(3).
{¶7} In Smith’s motion to correct void judgment, he argues that because the jury found
him not guilty of the felony murder specification, this effectively negated an essential element of
the aggravated murder offense. This, according to Smith, operates as an acquittal, and
therefore, his conviction and sentence for aggravated murder was improper following this
acquittal.
{¶8} Smith attempts to avoid the procedural obstacles to his case by arguing that his
conviction is void. A void judgment is not subject to the legal principles of res judicata, and
may be challenged at any time. State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884
N.E.2d 568, ¶ 30. Here, however, despite Smith’s insistence to the contrary, his argument that
his conviction and sentence are void is based on an argument that has previously been raised on
direct appeal. The argument in his first assignment of error, therefore, is barred by res judicata.
{¶9} In Smith’s initial direct appeal, he argued that the trial court erred in accepting
inconsistent verdicts. Specifically, he contended that it was inconsistent for the jury to find him
guilty of aggravated murder and not guilty of the corresponding firearm specification. This
court affirmed Smith’s conviction, holding that “a finding upon a specification cannot change the
finding of guilt as to the principal charge since specifications are considered only after, and in
addition to, the finding of guilt upon the principal charge.” State v. Smith, 8th Dist. Cuyahoga
Nos. 69799, 70451, and 71643, 1997 Ohio App. LEXIS 4892, 26 (Nov. 6, 1997).
{¶10} Here, Smith claims that he is not making a claim of inconsistent verdicts. Despite
his attempt to characterize this argument so as to avoid res judicata, we find no meaningful
difference between the arguments in his first assignment of error and those addressed by this
court in 1997.
{¶11} Smith was found guilty of aggravated murder, in violation of R.C. 2903.01, for
“unlawfully and purposely causing the death of another, to wit: Gary Reginald Lewis, while
committing or attempting to commit or while fleeing immediately after committing or attempting
to commit, Kidnapping.” He was found not guilty of the corresponding felony murder
specification, as follows:
And the offense presented above was committed while the offender was
committing, attempting to commit or fleeing immediately after committing or
attempting to commit kidnapping and either the offender was the principal
offender in the commission of the Aggravated Murder or, if not the principal
offender, committed the Aggravated Murder with prior calculation and design.
Smith argues that because he was found not guilty of the felony murder specification, of which
one of the elements was that the offense was committed contemporaneously with kidnapping, he
was actually acquitted of aggravated murder. This requirement of contemporaneous
commission was an essential element of aggravated murder. According to Smith, the finding of
not guilty for the specification operates to negate that element in aggravated murder. Therefore,
his first assignment of error alleges that one element of a specification for which he was found
not guilty negates another element of an offense for which he was found guilty. This claim is
clearly barred by res judicata.
{¶12} In his second assignment of error, Smith argues that the trial court imposed a
sentence contrary to law by failing to impose a mandatory consecutive sentence in compliance
with former R.C. 2929.41(B)(3). Because the record reflects that the trial court imposed
consecutive sentences for aggravated murder and kidnapping, we find this assignment of error
meritless.
{¶13} Therefore, we affirm the trial court’s denial of Smith’s motion to correct void
judgment.
{¶14} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas
court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
_________________________________________
TIM McCORMACK, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., and
LARRY A. JONES, SR., J., CONCUR