[Cite as State v. Gordon, 2018-Ohio-4311.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 29009
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
DANTE D. GORDON COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR-1998-08-1896
DECISION AND JOURNAL ENTRY
Dated: October 24, 2018
CALLAHAN, Judge.
{¶1} Appellant, Dante D. Gordon, appeals an order that denied his “Motion to Vacate
Void Judgment, Void Sentence and Issue a Final Appealable Order.” This Court affirms.
I.
{¶2} In 1998, Mr. Gordon pleaded guilty to murder and an accompanying firearm
specification. The trial court sentenced him to a prison term of fifteen years to life for the
murder conviction and to a three-year prison term for the firearm specification to be served
consecutively. In 2000, Mr. Gordon filed an untimely notice of appeal along with a motion for
delayed appeal, but this Court denied the motion and dismissed his appeal. In the eighteen years
since then, Mr. Gordon has filed numerous motions in the trial court related to the terms of his
sentence, the nature of his guilty plea, the sufficiency of the indictment that charged him, and the
trial court’s compliance with Crim.R. 32(C) in entering judgment. He has also filed numerous
appeals.
2
{¶3} In 2011, Mr. Gordon moved the trial court to dismiss the indictment that charged
him. The trial court denied that motion along with several others in an order that treated the
combined motions as a petition for postconviction relief. Seven years later, Mr. Gordon filed a
“Motion to Vacate Void Judgment, Void Sentence and Issue a Final Appealable Order.” The
trial court denied the motion, and Mr. Gordon filed this appeal.
II.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED WHEN THE COURT REFUSED TO
EXERC[ISE] ITS INHERENT AUTHORITY TO VACATE VOID JUDGMENT
& VOID SENTENCE, WHEN THE COURT DENIED APPELLANT’S
MOTION TO VACATE VOID JUDGMENT, VOID SENTENCE AND ISSUE
A FINAL APPEALABLE ORDER, WHERE THE TRIAL COURT [LACKED]
THE AUTHORITY TO PRONOUNCE A JUDGMENT & SENTENCE THE
APPELLANT, CONVICTING HIM OF “3” YEARS FOR A FIREARM
SPECIFICATION IN VIOLATION OF STATUTORY MANDATES
PURSUANT TO [R.C.] 2941.145 WHERE THE APPELLANT PLEAD
GUILTY TO MURDER, BUT ALSO PLEAD GUILTY TO THE FIREARM
SPECIFICATION THAT WAS CONTINGENT ON AND PREDICATED ON
THE OFFENSE OF AGGRAVATED MURDER, THUS MAKING THE
CONVICTION ON THE FIREARM SPECIFICATION VOID. AS A
PROXIMATE RESULT APPELLANT’S RIGHTS WERE VIOLATED UNDER
O.CONST.1 SEC.2 EQUAL PROTECTION & BENEFIT, O.CONST.1 SECT.16
REDRESS FOR INJURY, DUE PROCESS & IN VIOLATION OF THE
APPELLANT’S RIGHT TO DUE PROCESS & EQUAL PROTECTION OF
THE LAWS TO THE U.S. CONSTITUTION, UNDER THE 14TH
AMENDMENT.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED WHEN THE COURT REFUSED TO EXERCISE
ITS INHERENT POWER TO VACATE VOID JUDGMENT, WHEN THE
COURT DENIED APPELLANT’S MOTION TO VACATE VOID JUDGMENT,
VOID SENTENCE & ISSUE A FINAL APPEALABLE ORDER WHERE THE
JUDGMENT ENTRY OF CONVICTION WAS VOID ON ITS FACE DUE TO
THE COURT LACKED THE AUTHORITY TO CONVICT THE APPELLANT
TO “POSSESSION OF A FIREARM” WHERE THERE IS NO SUCH
CRIMINAL OFFENSE IN OHIO. AS A PROXIMATE RESULT
APPELLANT’S RIGHTS WERE VIOLATED UNDER O.CONST.1 SEC.2
EQUAL PROTECTION & BENEFIT, O.CONST.1 SECT.16 REDRESS FOR
3
INJURY, DUE PROCESS & IN VIOLATION TO APPELLANT’S RIGHT TO
THE 14TH AMENDMENT TO DUE PROCESS AND EQUAL PROTECTION
OF THE LAWS UNDER THE U.S. CONSTITUTION, UNDER THE 14TH
AMENDMENT.
ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT ERRED WHEN THE COURT REFUSED TO EXERCISE
ITS INHERENT AUTHORITY TO VACATE THE APPELLANT’S
SENTENCE, WHEN THE TRIAL COURT DENIED APPELLANT’S MOTION
TO VACATE VOID JUDGMENT[,] VOID SENTENCE & ISSUE A FINAL
APPEALABLE ORDER WHERE THE JUDGMENT ENTRY OF
CONVICTION WAS VOID ON ITS FACE, DUE TO THE COURT LACKING
AUTHORITY TO SENTENCE APPELLANT TO “3” YEARS, WHERE NO
SENTENCE NOR OFFENSE EXIST IN OHIO FOR “POSSESSION OF A
FIREARM.” AS A PROXIMATE RESULT APPELLANT’S RIGHTS WERE
VIOLATED UNDER O.CONST.1 SEC.2 EQUAL PROTECTION & BENEFIT,
O.CONST.1 SECT.16 REDRESS FOR INJURY DUE PROCESS & IN
VIOLATION TO APPELLANT’S RIGHT TO THE FOURTEENTH
AMENDMENT TO DUE PROCESS & EQUAL PROTECTION OF THE LAWS
TO THE U.S. CONSTITUTION.
ASSIGNMENT OF ERROR NO. 4
THE TRIAL COURT ERRED WHEN THE COURT REFUSED TO EXERCISE
ITS INHERENT AUTHORITY TO VACATE APPELLANT’S VOID
JUDGMENT ENTRY & ISSUE A FINAL APPEALABLE ORDER. WHERE
THE JOURNAL ENTRY VIOLATES [CRIM.R.] 32(C) STATE V. BAKER,
[P1] ONE DOCUMENT RULE & WHERE THE JUDGMENT ENTRY [DOES]
NOT SPEAK THE TRUTH, FAILING TO PROPERLY JOURNALIZE THE
JUDGMENT OF THE CONVICTION BAKER, [P10], WHERE THE
JUDGMENT ENTRY [DOES] NOT DISPOSE OF THE FIREARM
SPECIFICATION THAT APPELLANT PLEAD GUILTY TO AND WAS
CONVICTED OF PURSUANT TO [R.C.] 2941.145 NOR THE SENTENCE TO
THE FIREARM SPECIFICATION PURSUANT TO [R.C.] 2941.145 THAT
WAS CONTINGENT & PREDICATED ON AGGRAVATED MURDER. AS A
PROXIMATE RESULT APPELLANT’S RIGHTS WERE VIOLATED UNDER
O.CONST.1 SEC.2 EQUAL PROTECTION AND BENEFIT, O.CONST.1
SECT.16 REDRESS FOR INJURY, DUE PROCESS & IN VIOLATION OF
THE APPELLANT’S RIGHTS TO THE FOURTEENTH AMENDMENT TO
DUE PROCESS & EQUAL PROTECTION OF THE LAWS TO THE U.S.
CONSTITUTION.
{¶4} Mr. Gordon’s four assignments of error argue that the trial court erred by denying
his postsentence motion. This Court disagrees.
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{¶5} “A vaguely titled motion, including a motion to correct or vacate a judgment or
sentence, may be construed as a petition for post-conviction relief under R.C. 2953.21(A)(1)
where (1) the motion was filed subsequent to a direct appeal, (2) claimed a denial of
constitutional rights, (3) sought to render the judgment void, and (4) asked for a vacation of the
judgment and sentence.” State v. Davis, 9th Dist. Medina No. 15C0004-M, 2015-Ohio-5182, ¶
6, citing State v. Reynolds, 79 Ohio St.3d 158, 160 (1997). Mr. Gordon’s motion meets each of
these requirements and is properly construed as a petition for postconviction relief.
{¶6} A trial court may only entertain second or successive petitions for postconviction
relief when two thresholds have been met:
(a) Either the petitioner shows that the petitioner was unavoidably prevented from
discovery of the facts upon which the petitioner must rely to present the claim for
relief, or, subsequent to the period prescribed in division (A)(2) of section
2953.21 of the Revised Code or to the filing of an earlier petition, the United
States Supreme Court recognized a new federal or state right that applies
retroactively to persons in the petitioner’s situation, and the petition asserts a
claim based on that right [and]
(b) The petitioner shows by clear and convincing evidence that, but for
constitutional error at trial, no reasonable factfinder would have found the
petitioner guilty of the offense of which the petitioner was convicted or, if the
claim challenges a sentence of death that, but for constitutional error at the
sentencing hearing, no reasonable factfinder would have found the petitioner
eligible for the death sentence.
R.C. 2953.23(A)(1). Mr. Gordon’s second petition for postconviction relief did not explain why
he was unavoidably prevented from discovering the facts upon which his petition was based, and
it did not identify a retroactive right that has been recognized by the United States Supreme
Court. See State v. Wright, 9th Dist. Summit No. 27880, 2016-Ohio-3542, ¶ 9. Accordingly,
this Court concludes that the trial court did not err by denying his petition, and Mr. Gordon’s
four assignments of error are overruled.
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III.
{¶7} Mr. Gordon’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
LYNNE S. CALLAHAN
FOR THE COURT
SCHAFER, P. J.
CARR, J.
CONCUR.
APPEARANCES:
DANTE D. GORDON, pro se, Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and MARRETT W. HANNA, Assistant
Prosecuting Attorney, for Appellee.