[Cite as State v. Stewart, 2021-Ohio-2294.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-21-05
v.
DARRION A. STEWART, OPINION
DEFENDANT-APPELLANT.
Appeal from Seneca County Common Pleas Court
Trial Court No. 07 CR 0154
Judgment Affirmed
Date of Decision: July 6, 2021
APPEARANCES:
Gene P. Murray for Appellant
Derek W. DeVine for Appellee
Case No. 13-21-05
ZIMMERMAN, J.
{¶1} Defendant-appellant, Darrion A. Stewart (“Stewart”), appeals the
January 25, 2021 judgment entry of the Seneca County Court of Common Pleas
denying his motion to vacate his conviction. We affirm.
{¶2} In 2008, Stewart was convicted of 23 drug-related counts. State v.
Stewart, 3d Dist. Seneca No. 13-08-18, 2009-Ohio-3411, ¶ 34, 36. The trial court
sentenced Stewart on May 14, 2008 to an aggregate sentence of 36 years and 11
months in prison, and Stewart appealed the trial court’s judgment entry of
conviction.1 Stewart at ¶ 1; (Doc. Nos. 192, 199).2 In that direct appeal, we affirmed
the judgment of the trial court. Stewart at ¶ 109.
{¶3} On December 29, 2020, Stewart filed a motion to vacate his conviction
arguing that his conviction is void because “the State cannot produce a case
numbered motion docketed file for the warrant * * * .” (Emphasis sic.) (Doc. No.
220). On January 14, 2021, the State filed a memorandum in opposition to Stewart’s
motion to vacate. (Doc. No. 221). On January 25, 2021, the trial court denied
Stewart’s motion to vacate after concluding that his motion is untimely and barred
by the doctrine of res judicata. (Doc. No. 212).
1
In Stewart’s direct appeal from his conviction, this court recited much of the factual and procedural
background of this case, and we will not duplicate those efforts here. See State v. Stewart, 3d Dist. Seneca
No. 13-08-18, 2009-Ohio-3411.
2
On March 22, 2011, the trial court issued a nunc pro tunc judgment entry of sentence to correct a clerical
entry. (Doc. No. 216).
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{¶4} On February 22, 2021, Stewart filed his notice of appeal and raises one
assignment of error for our review. (Doc. No. 223).
Assignment of Error
The Trial Court Abused its Discretion by Dismissing and Not
Even Allowing a Hearing on Defendant-Appellant’s Motion to
Vacate Verdicts and Sentencings, and With Motion to Dismiss,
When the Defendant-Appellant Finally and Long After Trial,
Through No Fault of His Own, Became Aware of the State’s
Application for a Search Warrant, with a State Affidavit in
Support Thereof, and With the State Search Warrant Itself, in an
Unnumbered (and Thus Secret) Sealed Filing Which Could Not
be Accessed or Otherwise Found by the Defense, and From Which
the State Obtained Alleged Evidence Upon Which The Entire
Indictment Against the Defendant-Appellant Was Based,
Thereby Violating the Defendant-Appellant’s Fundamental and
Substantial Rights Under the Search and Seizure Warrant
Requirements of the Fourth Amendment to the Constitution of
the United States, and also Violating the Defendant’s
Fundamental and Substantial Rights as Guaranteed by the Due
Process Clause of the Fourteenth Amendment to the Constitution
of the United States.
{¶5} In his assignment of error, Stewart argues that the trial court erred by
denying his motion to vacate without an evidentiary hearing. In particular, he argues
that his conviction is void because the State failed to provide “to the defense as
discovery for trial * * * the motion for [the] search warrant, the affidavit in support
of the [search warrant], the receipt for [the] property itemization, and the search
warrant itself.” (Appellant’s Brief at 2).
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Standard of Review
{¶6} Because it raises a question of jurisdiction, we review de novo the
denial of a motion to vacate a void judgment. State v. Megarry, 4th Dist. Adams
No. 17CA1051, 2018-Ohio-4242, ¶ 9; State v. Bigelow, 6th Dist. Lucas No. L-17-
1306, 2018-Ohio-3508, ¶ 12; State v. Brown, 11th Dist. Lake No. 2017-L-038,
2017-Ohio-7963, ¶ 8. See also State v. Miles, 3d Dist. Hancock No. 5-18-06, 2018-
Ohio-3317, ¶ 8. “De novo review is independent, without deference to the lower
court’s decision.” State v. Hudson, 3d Dist. Marion No. 9-12-38, 2013-Ohio-647, ¶
27.
Analysis
{¶7} “‘Ohio’s Criminal Rules and statutes provide for the direct review of
criminal judgments through appeal, and collateral attacks through postconviction
petitions, habeas corpus, and motions to vacate.’” State v. Love, 7th Dist. Mahoning
No. 17 MA 0039, 2018-Ohio-1140, ¶ 17, quoting Lingo v. State, 138 Ohio St.3d
427, 2014-Ohio-1052, ¶ 44. Thus, “[t]he authority to vacate a void judgment is ‘an
inherent power possessed by Ohio courts.’” Id. at ¶ 18, quoting Patton v. Diemer,
35 Ohio St.3d 68 (1988), paragraph four of syllabus, and citing Lingo at ¶ 48.
{¶8} A judgment rendered by a court lacking subject-matter jurisdiction is
void and issues of voidness can be raised at any time. Id. at ¶ 18-19; Miles at ¶ 8.
“Furthermore, the doctrine of res judicata can be surmounted where a judgment is
void for lack of subject matter jurisdiction.” Love at ¶ 19, citing Bank of Am., N.A.
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v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, ¶ 17, State Wilson, 73 Ohio St.3d
40, 44-45 (1995), fn. 6, and State v. Perry, 10 Ohio St.2d 175, 178-179 (1967).
{¶9} “However, a court faced with a motion filed after a conviction can
proceed to analyze the motion under the postconviction relief statutes where the
defendant’s voidness argument fails.” Id. at ¶ 21. “R.C. 2953.21 governs petitions
for post-conviction relief.” State v. Wine, 3d Dist. Auglaize No. 2-15-07, 2015-
Ohio-4726, ¶ 10, citing State v. Kinstle, 3d Dist. Allen No. 1-12-32, 2013-Ohio-850,
¶ 10. The statute (in effect at the time Stewart filed his motion) sets forth the time
requirements for filing a petition for post-conviction relief and provides, in its
relevant part, “a petition under division (A)(1) of this section shall 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 or
adjudication.” R.C. 2953.21(A)(2). Importantly, a trial court lacks jurisdiction to
entertain an untimely or successive petition for post-conviction relief unless the
defendant demonstrates that one of the R.C. 2953.23(A) exceptions applies. State
v. Martin, 10th Dist. Franklin No. 17AP-6, 2017-Ohio-5657, ¶ 9; R.C. 2953.23(A).
{¶10} A trial court may not entertain an untimely or successive post-
conviction petition unless the petitioner initially demonstrates either (1) he was
unavoidably prevented from discovering the facts necessary for the claim for relief,
or (2) the United States Supreme Court recognized a new federal or state right that
applies retroactively to persons in the petitioner’s situation. R.C. 2953.23(A)(1)(a).
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If the petitioner can satisfy one of those two conditions, he must also demonstrate
that but for the constitutional error at trial, no reasonable finder of fact would have
found him guilty. R.C. 2953.23(A)(1)(b). R.C. 2953.23(A)(2) allows a trial court
to consider an untimely petition in certain cases involving DNA testing.
{¶11} “Absent jurisdiction to consider a petition for post-conviction relief, a
trial court is not required to hold an evidentiary hearing.” State v. Wesson, 9th Dist.
Summit No. 28412, 2018-Ohio-834, ¶ 23, citing State v. Price, 9th Dist. Wayne No.
03CA0046, 2004-Ohio-961, ¶ 10.
{¶12} “‘[T]he question whether a court of common pleas possesses 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, ¶ 24, quoting State v. Kane, 10th Dist. Franklin
No. 16AP-781, 2017-Ohio-7838, ¶ 9.
{¶13} Here, Stewart does not allege an issue which would render his
conviction void. See State v. Jones, 10th Dist. Franklin No. 20AP-300, 2020-Ohio-
5525, ¶ 14. Specifically, Stewart alleges that the State neglected to provide him
with a second search warrant, search-warrant affidavit, and itemization of the
property seized as a result of that search warrant, which was executed at 112½ East
North Street in Fostoria, Ohio in 2006. Nevertheless, Stewart’s argument regarding
that search warrant did not deprive the trial court of subject matter jurisdiction to
issue the conviction and sentence in his case. In other words, arguments challenging
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discovery matters, and relating to a search warrant, cannot surmount the doctrine of
res judicata. See State v. King, 5th Dist. Muskingum No. CT2006-0021, 2007-Ohio-
2810, ¶ 21; State v. Holder, 11th Dist. Geauga No. 2002-G-2469, 2003-Ohio-5860,
¶ 18.
{¶14} Because Stewart does not allege any error that would render his
conviction void, the trial court properly denied Stewart’s motion to vacate without
an evidentiary hearing as untimely and as barred by the doctrine of res judicata.
Indeed, Stewart’s petition was filed well beyond the statutory window set forth in
R.C. 2953.21(A)(2). Accordingly, Stewart was required to establish that his petition
falls within one of the exceptions specified in R.C. 2953.23(A), which he failed to
do. Indeed, Stewart was not unavoidably prevented from discovering any of the
issues related to the search warrant. See State v. West, 8th Dist. Cuyahoga No.
100226, 2014-Ohio-1626, ¶ 7. Moreover, Stewart did not allege that the United
States Supreme Court recognized a new federal or state right which would
retroactively apply to his situation or that he is challenging DNA testing. Thus, the
trial court was without jurisdiction to consider Stewart’s untimely and successive
petition for postconviction relief. Apanovitch at ¶ 41; Wesson, 2018-Ohio-834, at ¶
23.
{¶15} Consequently, Stewart’s argument is barred by the doctrine of res
judicata. “Under the doctrine of res judicata, a final judgment of conviction bars a
convicted defendant who was represented by counsel from raising and litigating in
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any proceeding except an appeal from that judgment, any defense or any claimed
lack of due process that was raised or could have been raised by the defendant * *
* on an appeal from that judgment.” State v. Perry, 10 Ohio St.2d 175 (1967),
paragraph nine of the syllabus. See also State v. James, 3d Dist. Hancock No. 5-19-
30, 2020-Ohio-720, ¶ 17. Stewart could have and should have presented his
argument regarding the search warrant before the trial court or on direct appeal;
however, he failed to do so. See Stewart, 2009-Ohio-3411. Thus, Stewart is barred
by the doctrine of res judicata from raising this issue in a subsequent proceeding.
See James at ¶ 17.
{¶16} Stewart’s assignment of error is overruled.
{¶17} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW, J., concurs.
MILLER, J., concurs in Judgment Only.
/jlr
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State v. Stewart
Combined Opinion