State v. Ali

[Cite as State v. Ali, 2021-Ohio-1085.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 109580
v. :

OSIRIS ALI, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 1, 2021

Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-05-465969-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Mary M. Frey, Assistant Prosecuting
Attorney, for appellee.

Osiris Ali, pro se.

ANITA LASTER MAYS, J.:

Defendant-appellant Osiris Ali proceeds pro se and appeals the trial

court’s denial of Ali’s motion to vacate an unlawful void sentence. We affirm the

trial court’s judgment.
I. Background and Facts

We extract a summary of facts from this court’s opinion that affirmed

Ali’s convictions on direct appeal.

Defendant Osiris Ali (appellant) appeals various aspects of the trial
court’s convicting him of kidnapping, gross sexual imposition, rape,
and unlawful sexual conduct with a minor, involving his adopted sister
(S.B.) when she was between the ages of 10 and 13, and his niece (D.D.)
when she was 15 and 16 years old. Appellant also appeals his sentence
of life in prison.

Appellant, who was in his early-to-mid 40’s when these offenses
allegedly occurred, was indicted on May 24, 2005, for 79 counts of
sexually oriented offenses, spanning from December 15, 2002 through
the date of the indictment. Because of the sensitive nature of this case,
the facts will be discussed only as needed to address appellant’s nine
assignments of error.

Appellant waived his right to a jury trial and tried his case to the court
starting February 13, 2006. On February 22, 2006, the court found
appellant guilty of the following offenses with S.B. as the victim: four
counts of rape of a person under 13 years of age with a force
specification, in violation of R.C. 2907.02(A)(1) (B); one count of rape
of a person under 13 years of age (no force specification); six counts of
kidnapping with a sexual motivation specification, in violation of
R.C. 2941.147 and 2905.01(A)(2); and one count of gross sexual
imposition, in violation of R.C. 2907.05(A)(4). The court also found
appellant guilty of the following offenses with D.D. as the victim: one
count of kidnapping with a sexual motivation specification and seven
counts of unlawful sexual conduct with a minor, in violation of
R.C. 2907.04(B)(3).

State v. Ali, 8th Dist. Cuyahoga No. 88147, 2007-Ohio-3776, ¶ 1-3 (“Ali I”).

Ali was classified as a sexual predator on April 10, 2006. On April 12,

2006, the trial court sentenced Ali to:

The court imposes a prison sentence at the Lorain Correctional
Institution of life. Sentence of four years LCI as to Counts 15, 20, 21,
22, 23, 74 and 77 to be served concurrent with each other but
consecutive and prior to the life sentence. Sentence of life in prison as
 to Counts 1, 5, 8, 9 and 10 (life sentences to be served concurrent with
each other). Sentence of four years as to all remaining counts to be
served concurrent with each other and with the life sentence. Post-
release control is part of this prison sentence for 5 years for the above
felony(s) under R.C. 2967.28. Jail credit days to date to be calculated
by the sheriff.

Journal entry No. 66454218, p.1 (Dec. 17, 2010).1

Ali has filed multiple petitions for postconviction relief including the

action from which the following history is extracted:

Ali filed repeated challenges to his convictions and sentence, all of
which have been denied or dismissed. See, e.g., State v. Ali, 8th Dist.
Cuyahoga No. 88147, 2009-Ohio-1233 (application to reopen denied);
State ex rel. Ali v. McMonagle, 8th Dist. Cuyahoga No. 95059, 2010-
Ohio-3514 (writ of mandamus denied); State v. Ali, 8th Dist. Cuyahoga
No. 97612, 2012-Ohio-2510 (postconviction relief denied); State v. Ali,
8th Dist. Cuyahoga No. 99062, 2013-Ohio-2696 (postconviction relief
dismissed); State v. Ali, 8th Dist. Cuyahoga No. 101129, 2014-Ohio-
4478 (postconviction relief denied); State ex rel. Ali v. Clancy, 8th Dist.
Cuyahoga No. 103328, 2015-Ohio-4594 (mandamus dismissed and
warned of being declared a vexatious litigator).

State v. Ali, 8th Dist. Cuyahoga No. 105534, 2017-Ohio-6894, ¶ 2.

Ali filed the “motion to vacate an unlawful void sentence” in the

instant action on February 13, 2020. The trial court issued a summary denial

1 The cited journal entry recited the prior sentence findings and resentenced Ali
due to not being properly advised of postrelease control.
February 24, 2020.2 Ali filed a notice of appeal on March 5, 2020. Ali presents a

single assignment of error for review:

The trial court erred in denying defendant’s motion to vacate illegal
void sentence where defendant’s sentence is void as a matter of law
because the conviction, as identified by the trial court, is not a lesser
included offense of rape R.C. 2907.02 as contained in Counts 15, 21, 22,
23, 74, and 77 of the indictment.

Ali’s motion to vacate is a petition for postconviction relief under

R.C. 2953.21(A)(1) because it (1) 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. Reynolds, 79 Ohio St.3d

158, 160-161, 679 N.E.2d 1131 (1997); see also State v. Meincke, 8th Dist. Cuyahoga

No. 96407, 2011-Ohio-6473, ¶ 8.

R.C. 2953.21 through 2953.23 set forth how a convicted defendant

may seek to have the trial court’s judgment or sentence vacated or set aside pursuant

to a petition for postconviction relief. A defendant’s petition for postconviction relief

is a collateral civil attack on his or her criminal conviction. State v. Gondor, 112 Ohio

St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 48. The statute affords relief from

judgment where the petitioner’s rights in the proceedings that resulted in his

2 “It is well settled that trial courts are not automatically required to conduct an
evidentiary hearing whenever a petition for postconviction relief is filed.” (Citations
omitted.) State v. Nash, 8th Dist. Cuyahoga No. 87635, 2006-Ohio-5925, ¶ 6. “The
pivotal concern is whether there are substantive constitutional grounds for relief that
would warrant a hearing based on the petition, the supporting affidavits and materials,
and the record.” Id., citing State v. Jackson, 64 Ohio St.2d 107, 110, 413 N.E.2d 819
(1980).
conviction were denied to such an extent the conviction is rendered void or voidable

under the Ohio or United States Constitutions. R.C. 2953.21(A); State v. Perry, 10

Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph four of the syllabus. A

postconviction petition, however, does not provide a petitioner a second opportunity

to litigate the conviction. State v. Hessler, 10th Dist. Franklin No. 01 AP-1011, 2002-

Ohio-3321, ¶ 32.

Typically, a reviewing court reviews a trial court’s decision granting

or denying a petition for postconviction relief for an abuse of discretion. State v.

Gondor at ¶ 58. However, whether the trial court possessed subject matter

jurisdiction to entertain an untimely petition for postconviction relief is a question

of law, which appellate courts review de novo. State v. Apanovitch, 155 Ohio St.3d

358, 2018-Ohio-4744, 121 N.E.3d 351, ¶ 24.

R.C. 2953.21(A)(2) provides that a petition for postconviction relief

must be filed within 365 days from the filing of the trial transcripts in the petitioner’s

direct appeal or, if a direct appeal was not pursued, 365 days after the expiration of

the time in which a direct appeal could have been filed. Here, Ali filed his petition

approximately 14 years later. Thus, his petition is untimely. Furthermore, this is

certainly not Ali’s first petition for postconviction relief in this case.

Because the timeliness and successive-petition requirements of

R.C. 2953.23 are jurisdictional, a trial court does not have jurisdiction to entertain

an untimely or successive petition for postconviction relief that does not meet the
exceptions set forth in R.C. 2953.23(A). See State v. Kleyman, 8th Dist. Cuyahoga

No. 93896, 2010-Ohio-3612, ¶ 35.

R.C. 2953.23(A)(1)(a) permits a trial court to entertain an untimely

or successive petition only if:

(1) the petitioner was unavoidably prevented from discovering the facts
on which the petition is predicated, or (2) the United States Supreme
Court has recognized a new federal or state right that applies
retroactively to the petitioner and the petition asserts a claim based on
that new right.

If the petitioner can satisfy one of these threshold conditions, he or

she must then demonstrate that, but for the constitutional error at trial, no

reasonable factfinder would have found him guilty of the offenses of which he was

convicted. R.C. 2953.23(A)(1)(b).

Thus, Ali must show that he was unavoidably prevented from

discovering the facts upon which he relied in his petition, or that the United States

Supreme Court has recognized a new federal or state right that applies retroactively

to him. And, if one of those applies, Ali must demonstrate that but for constitutional

error at trial, no reasonable factfinder would have found him guilty. If Ali cannot

make these showings, the trial court was without jurisdiction to consider his petition

for postconviction relief.

Ali does not allege, let alone establish, any of the requirements

necessary to bring an untimely petition for postconviction relief. Specifically, Ali

does not claim that he was unavoidably prevented from discovering facts upon

which he relied in his petition or that the United States Supreme Court has
recognized a new federal or state right that applies retroactively to him. Even if Ali

had met one of the threshold conditions, he does not claim that but for the

constitutional error at trial, no reasonable fact finder would have found him guilty

of the offenses of which he was convicted.

Ali argues that his petition is timely because his sentence is void, and

he can challenge a void sentence at any time. However, the Ohio Supreme Court

recently realigned its void-sentence jurisprudence in State v. Harper, 160 Ohio

St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, and State v. Henderson, 161 Ohio

St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776. The Ohio Supreme Court made clear

that if a sentencing court had jurisdiction over the case and the defendant,

sentencing errors are voidable, not void, and can be challenged only on direct

appeal. Henderson at ¶ 24.

The sentencing court here had jurisdiction over Ali’s case and over

Ali. R.C. 2931.03; Smith v. Sheldon, 157 Ohio St.3d 1, 2019-Ohio-1677, 131 N.E.3d

1, ¶ 8 (“a common pleas court has subject-matter jurisdiction over felony cases.”).

Any sentencing error would therefore be voidable, not void. Ali is limited to

challenging his voidable sentence via a direct appeal; under the Ohio Supreme

Court’s current jurisprudence, he cannot challenge the sentence at any time like he

claims.

Ali’s motion to vacate his sentence is a successive and untimely

petition for postconviction relief. No exception in R.C. 2953.23(A)(1) applies to

allow the trial court to entertain his untimely and successive petition: the record
does not establish that Ali meets the threshold requirements of showing that he was

unavoidably prevented from discovering the facts upon which he relied in his

petition or that the United States Supreme Court has recognized a new right that

would apply retroactively to him. Accordingly, the trial court lacked jurisdiction to

consider Ali’s untimely and successive petition for postconviction relief.

The trial court’s judgment is affirmed.

It is ordered that appellee recover from 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.

________________________________
ANITA LASTER MAYS, JUDGE

MARY J. BOYLE, A.J., and
MARY EILEEN KILBANE, J., CONCUR