[Cite as State v. Cobia, 2016-Ohio-7213.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-160256
TRIAL NO. B-0403918
Plaintiff-Appellee, :
vs. : O P I N I O N.
RAY COBIA, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Appeal Dismissed
Date of Judgment Entry on Appeal: October 5, 2016
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Schuh & Goldberg, L.L.P, and Brian T. Goldberg, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
MOCK, Judge.
{¶1} Defendant-appellant Ray Cobia appeals from the Hamilton County
Common Pleas Court’s judgment overruling his “Motion for Credit on Reporting
Requirements.” We dismiss this appeal for lack of jurisdiction.
{¶2} In 2004, Cobia was convicted upon guilty pleas to sexual battery and
impersonating a police officer and was sentenced to concurrent prison terms of four
years. He was also, for purposes of Megan’s Law, Am.Sub.H.B. No. 180, 146 Ohio
Laws, Part II, 2560, 2601, classified as a sexually oriented offender, requiring him to
register any new address with local law enforcement officials for a period of ten years
following his release from prison. He took no direct appeal from his convictions. And
upon his release from prison in 2008, he undertook this registration duty.
{¶3} In 2013, Cobia returned to prison following his convictions for sexual
battery, impersonating a police officer, and child enticement, in the case numbered B-
1304778. In January 2015, we reversed those convictions, discharging Cobia on the
child-enticement charge, because the child-enticement statute had been held to be
unconstitutional. State v. Cobia, 1st Dist. Hamilton No. C-140058, 2015-Ohio-331.
The remaining charges were dismissed for want of prosecution in October 2015, on
remand from our decision.
{¶4} In December 2015, Cobia filed with the common pleas court his “Motion
for Credit on Reporting Requirements.” In this appeal, he advances a single
assignment of error, challenging the court’s judgment overruling that motion. We do
not reach the merits of this assignment of error, because we have no jurisdiction to
review the common pleas court’s judgment.
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OHIO FIRST DISTRICT COURT OF APPEALS
No Common Pleas Court Jurisdiction to Grant Relief
{¶5} In his “Motion for Credit on Reporting Requirements,” Cobia asked the
common pleas court to “credit” against the ten-year sex-offender-registration period
imposed for his 2004 convictions the two years that he had spent in prison for his 2013
convictions. He argued that the running of that ten-year period should not have been
tolled under R.C. 2950.07(D) by his two-year return to confinement, when his 2013
charges were, in 2015, dismissed. We conclude that the common pleas court had no
jurisdiction to entertain the motion.
{¶6} Relief not afforded under Crim.R. 47 or R.C. 2950.07. In his
motion, Cobia sought relief “[p]ursuant to Ohio Criminal Rule[] 47 and ORC 2950.07
D and E.” But neither Crim.R. 47 nor R.C. 2950.07 provided a means for obtaining the
relief sought.
{¶7} Crim.R. 47 pertains to the manner of “appl[ying] to the court for an
order” in a pending criminal proceeding. Cobia’s motion, filed 11 years after his 2004
convictions, was plainly not filed in a pending criminal proceeding.
{¶8} R.C. 2950.07 governs the commencement and duration of a sex
offender’s registration obligation. By the terms of that statute, Cobia’s ten-year
registration period began to run in 2008, when he was released from prison, was
“tolled” for approximately two years while he was imprisoned for his subsequent
offenses, and resumed running upon his 2015 release from confinement for those
offenses. See R.C. 2950.07(A) and (D). The statute also permits a sex offender to
apply to the sheriff of the county of his residence for “credit against the duty to
register” and to appeal to the common pleas court the denial of that application. R.C.
2950.07(E). But that credit is only “for the time that the offender * * * has complied
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OHIO FIRST DISTRICT COURT OF APPEALS
with the sex offender * * * registration requirements of another jurisdiction.” Id.
Cobia, by his motion, was seeking credit not for time spent in compliance with another
jurisdiction’s registration requirements, but for the time spent in confinement upon
his 2013 convictions.
{¶9} No jurisdiction to grant postconviction, Crim.R. 33,
Crim.R. 32.1, mandamus, declaratory, habeas corpus, or Civ.R.
56(B) relief. Because Cobia did not specify in his motion a statute or rule under
which the relief sought might have been afforded, the common pleas court was free to
“recast” the motion “into whatever category necessary to identify and establish the
criteria by which the motion should be judged.” State v. Schlee, 117 Ohio St.3d 153,
2008-Ohio-545, 882 N.E.2d 431, ¶ 12 and syllabus.
{¶10} R.C. 2953.21 et seq., governing the proceedings upon a petition for
postconviction relief, provide “the exclusive remedy by which a person may bring a
collateral challenge to the validity of a conviction or sentence in a criminal case.” R.C.
2953.21(J). But to prevail on a postconviction claim, the petitioner must demonstrate
an infringement of his rights in the proceedings resulting in his conviction that
rendered the conviction void or voidable under the state or federal constitution. See
R.C. 2953.21(A)(1); State v. Powell, 90 Ohio App.3d 260, 264, 629 N.E.2d 13 (1st
Dist.1993). Cobia’s motion challenging the application of R.C. 2950.07’s tolling
provision did not allege a constitutional violation in the proceedings resulting in his
convictions. Thus, the motion was not reviewable under the standards provided by the
postconviction statutes.
{¶11} Nor could the common pleas court have entertained the motion as a
Crim.R. 33 motion for a new trial or a Crim.R. 32.1 motion to withdraw his guilty
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OHIO FIRST DISTRICT COURT OF APPEALS
pleas. Cobia had been convicted in 2004, not upon verdicts returned following a trial,
but upon guilty pleas. And he did not seek by his motion to withdraw those pleas.
{¶12} The common pleas court had no jurisdiction to entertain Cobia’s motion
as a petition for a writ of mandamus under R.C. Chapter 2731 or as a declaratory
judgment action pursuant to R.C. Chapter 2721. An “[a]pplication for the writ of
mandamus must be by petition, in the name of the state on the relation of the person
applying, and verified by affidavit.” R.C. 2731.04. And “when declaratory relief is
sought * * * in an action or proceeding, all persons who have or claim any interest that
would be affected by the declaration shall be made parties to the action or proceeding.”
R.C. 2721.12(A). Cobia’s motion did not satisfy the procedural requirements for, and
was thus not reviewable as, either a petition for a writ of mandamus or a declaratory
judgment action. See State v. Bell, 1st Dist. Hamilton No. C-150391, 2016-Ohio-4630,
¶ 9.
{¶13} Nor was the motion reviewable by the common pleas court under R.C.
2725.01 et seq., as a petition for a writ of habeas corpus. Relief may be afforded
under the habeas corpus statutes only when the petitioner is presently in “the actual
physical custody of the state.” Harrod v. Harris, 1st Dist. Hamilton No. C-000791,
2001 Ohio App. LEXIS 2092 (May 11, 2001), citing Tomkalski v. Maxwell, 175 Ohio
St. 377, 378, 194 N.E.2d 845 (1963). Cobia’s motion was filed well after he had been
released from confinement for his 2004 convictions.
{¶14} Finally, Crim.R. 57(B) requires a court to “look to the rules of civil
procedure and to the applicable law if no rule of criminal procedure exists.” And
Civ.R. 60(B)(5) permits a court to grant relief from a judgment for “any * * * reason
justifying relief.” But Cobia, in his motion, did not seek relief from his 2004
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OHIO FIRST DISTRICT COURT OF APPEALS
judgment of conviction. Therefore, Crim.R. 57(B) did not require the common pleas
court to review the motion under Civ.R. 60(B).
No Appellate Jurisdiction to Review the Denial of Relief
{¶15} Moreover, this court lacks jurisdiction to review the common pleas
court’s judgment overruling Cobia’s motion. Article IV, Section 3(B)(2) of the Ohio
Constitution provides that a court of appeals has only “such jurisdiction as may be
provided by law to review and affirm, modify, or reverse judgments or final orders of
the courts of record inferior to the court of appeals within the district.”
{¶16} Cobia’s motion is plainly not reviewable under the jurisdiction
conferred upon this court by R.C. 2953.02 or 2953.08 to review a judgment of
conviction entered in a criminal case, because the motion does not challenge his
2004 convictions and was filed with the common pleas court more than 11 years after
those convictions. And just as the motion was not reviewable by the common pleas
court under the postconviction statutes, the entry overruling the motion is not
reviewable under this court’s jurisdiction under R.C. 2953.23(B) to review an order
awarding or denying postconviction relief.
{¶17} An appeals court also has jurisdiction under R.C. 2505.03(A) to review
and affirm, modify, or reverse a “final order, judgment or decree.” A “final order”
includes an order that “affects a substantial right” in “an action,” when that order
either “in effect determines the action and prevents a judgment,” R.C. 2505.02(B)(1),
or is “made in a special proceeding,” that is, in “an action or proceeding that is
specially created by statute and that prior to 1853 was not denoted as an action at law
or a suit in equity.” R.C. 2505.02(B)(2) and (A)(2). A “final order” also includes an
order that “grants or denies a provisional remedy,” that is, a remedy in “a proceeding
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OHIO FIRST DISTRICT COURT OF APPEALS
ancillary to an action,” when that order “in effect determines the action with respect
to the provisional remedy and prevents a judgment in the action in favor of the
appealing party with respect to the provisional remedy,” and when “[t]he appealing
party would not be afforded a meaningful or effective remedy by an appeal following
final judgment as to all proceedings, issues, claims, and parties in the action.” R.C.
2505.02(A)(3) and (B)(4).
{¶18} For purposes of determining whether an order is “final,” a “substantial
right” is “a right that the United States Constitution, the Ohio Constitution, a statute,
the common law, or a rule of procedure entitles a person to enforce or protect.” R.C.
2505.02(A)(1). R.C. 2950.07 governs the commencement and duration of a sex
offender’s registration obligation. Cobia effectively sought by his motion the
enforcement of R.C. 2950.07 in a manner that would exclude him from the statute’s
tolling provision. Thus, the common pleas court’s order overruling the motion may
fairly be said to implicate a substantial right.
{¶19} But Cobia’s motion was not filed in any action, or in any proceeding
ancillary to an action, then pending before the common pleas court. Thus, the
common pleas court’s entry overruling the motion cannot be said to have effectively
determined or prevented a judgment in any proceeding. See R.C. 2505.02(B)(1) and
(B)(4)(a). Nor was that entry “made” in any “special” statutory proceeding. See R.C.
2505.02 (B)(2). Accordingly, the common pleas court’s entry overruling the motion
was not reviewable by this court as a “final order.”
Not Reviewable under Jurisdiction to Correct a Void judgment.
{¶20} Finally, a court always has jurisdiction to correct a void judgment. See
State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d
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OHIO FIRST DISTRICT COURT OF APPEALS
263, ¶ 18-19. But R.C. 2950.07(D) mandates that Cobia’s ten-year registration
period be extended by his two-year return to confinement for his 2013 convictions.
Any judgment that operated to effectuate that tolling provision would not render his
2004 convictions void. See State v. Wurzelbacher, 1st Dist. Hamilton No. C-130011,
2013-Ohio-4009, ¶ 8; State v. Grant, 1st Dist. Hamilton No. C-120695, 2013-Ohio-
3421, ¶ 9-16 (holding that a judgment of conviction is void only to the extent that a
sentence is unauthorized by statute or does not include a statutorily mandated term
or if the trial court lacks subject-matter jurisdiction or the authority to act).
Accordingly, the matter was not reviewable by the common pleas court, nor is it
reviewable by this court, under the jurisdiction to correct a void judgment.
Appeal Dismissed
{¶21} We, therefore, hold that we are without jurisdiction to review the
common pleas court’s entry overruling Cobia’s “Motion for Credit on Reporting
Requirements.” Accordingly, we dismiss this appeal.
Appeal dismissed.
STAUTBERG, J., concurs.
DEWINE, P.J., concurs in judgment only.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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