State v. Lawrence

[Cite as State v. Lawrence, 2021-Ohio-2105.]

                             COURT OF APPEALS OF OHIO

                            EIGHTH APPELLATE DISTRICT
                               COUNTY OF CUYAHOGA

STATE OF OHIO,

                Plaintiff-Appellee,             :
                                                           No. 109951
                v.                              :

HOWARD LAWRENCE,                                :

                Defendant-Appellant.            :


                              JOURNAL ENTRY AND OPINION

                JUDGMENT: AFFIRMED
                RELEASED AND JOURNALIZED: June 24, 2021


           Civil Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-13-570740-A


                                          Appearances:

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

                Friedman | Gilbert | Gerhardstein, and Mary Catherine
                Corrigan; Allison F. Hibbard, for appellant.

EMANUELLA D. GROVES, J.:

                  Defendant-appellant Howard Lawrence (“Lawrence”) appeals the

trial court’s denial of his motion to vacate a void judgment. For the reasons set

forth below, we affirm.
                      Factual and Procedural History

              In January 2013, emanating from a shooting incident that occurred

on December 15, 2012, a grand jury returned a multicount indictment against

Lawrence for two counts of aggravated murder with one- and three-year firearm

specifications; one count of aggravated robbery with one- and three-year firearm

specifications, notice of prior conviction, and repeat violent offender

specifications; one count of murder with one- and three-year firearm

specifications; three counts of felonious assault with one- and three-year firearm

specifications, notice of prior conviction, a repeat violent offender specification;

one count of kidnaping with one- and three-year firearm specifications, notice of

prior conviction and repeat violent offender specifications, and one count of

having weapons while under disability.

              Lawrence pled not guilty at the arraignment and subsequently

waived his right to a jury trial relating to the charge for having weapons while

under disability, as well as to the notice of prior conviction and to the repeat

violent offender specifications connected to the other counts. The jury found

Lawrence guilty of aggravated robbery and felonious assault, along with the

attendant one- and three-year firearm specifications as charged in both counts.

Separately, the trial court found Lawrence guilty of having weapons while under

disability, the notice of prior conviction, and the repeat violent offender

specifications as charged. The jury found Lawrence not guilty of the remaining

counts.
               The trial court imposed a 21-year prison sentence. Both Lawrence

and the state appealed with the state’s appeal limited to a portion of the sentence

the trial court imposed. In our consolidated disposition, in State v. Lawrence,

8th Dist. Cuyahoga Nos. 100371 and 100387, 2014-Ohio-4797, we affirmed

Lawrence’s convictions but remanded the case to the trial court to impose

sentence on multiple firearm specifications and for correction of the record. Id.

at ¶ 17, 37.

               In accordance with our remand, at Lawrence’s resentencing, the

trial court imposed the three-year firearm specification to be served consecutively

to the previously imposed 21-year prison sentence.

               In April 2020, Lawrence filed a pro se motion styled “motion to

vacate void judgment.” In the motion, Lawrence argued he was entitled to relief

under R.C. 2945.73(B) because a valid probation holder did not exist, thus the

triple-count provision was applicable, and he was not brought to trial as required

by R.C. 2945.71 and 2945.72. Lawrence stated that in June 2013, he filed a motion

to dismiss for violation of speedy trial that divested the trial court of its basic

statutory jurisdiction to bring him to trial. The state filed its brief in opposition

to Lawrence’s motion to vacate a void judgment.            The trial court denied

Lawrence’s motion.

               Lawrence now appeals assigning the following sole error for review:

                              Assignment of Error
       The trial court erred by denying the defendant’s motion to vacate a
       void judgment.
              In his sole assignment of error, Lawrence argues the trial court

erred when it denied his motion to vacate a void judgment.

              Preliminarily, we note, a motion to vacate a void judgment is

treated as a petition for postconviction relief under R.C. 2953.21(A)(1) because it

(1) is filed subsequent to a direct appeal, (2) claimed a denial of constitutional

rights, (3) seeks to render the judgment void, and (4) asks for a vacation of the

judgment and sentence. State v. Parker, 8th Dist. Cuyahoga No. 109804, 2021-

Ohio-509, ¶ 20, citing State v. Robinson, 8th Dist. Cuyahoga No. 109159, 2020-

Ohio-4470, ¶ 9, citing 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. Thus, for the purposes of this appeal, we construe Lawrence’s motion

to vacate a void judgment as a petition for postconviction relief.

               R.C. 2953.21 through 2953.23 sets 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. Atahiya, 8th Dist. Cuyahoga No. 109726, 2021-Ohio-1488, ¶ 13, citing

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 conviction were denied to such an

extent the conviction is rendered void or voidable under the Ohio or United States

Constitutions. Id., citing 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. Curry, 8th Dist. Cuyahoga No. 108088, 2019-Ohio-5338,

¶ 12, citing State v. Hessler, 10th Dist. Franklin No. 01AP-1011, 2002-Ohio-3321,

¶ 32.

               The standard for appellate review of postconviction proceedings is

abuse of discretion. State v. Jackson, 8th Dist. Cuyahoga No. 108558, 2020-

Ohio-4914, ¶ 45, citing Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.

77, ¶ 58. A trial court’s decision granting or denying a postconviction petition filed

pursuant to R.C. 2953.21 should be upheld absent an abuse of discretion. Id. The

term “‘abuse of discretion’ * * * implies that the court’s attitude is unreasonable,

arbitrary or unconscionable.” State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d

144 (1980); see also Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d

1140 (1983).

                Lawrence’s claim in the motion to vacate a void judgment is

undergirded by the allegation that his right to a speedy trial was violated.       As

such, we find his claim 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 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 at the trial, which resulted in that judgment of
        conviction, or on an appeal from that judgment.”
State v. Straley, 159 Ohio St.3d 82, 2019-Ohio-5206, 147 N.E.3d 623, ¶ 35,

quoting Perry at id., paragraph nine of the syllabus. The Ohio Supreme Court has

also held that the doctrine of res judicata bars a defendant from asserting in a

motion for postconviction relief any issue that could have been raised on direct

appeal. State v. Reynolds, 79 Ohio St.3d 158, 161, 679 N.E.2d 1131 (1997), citing

State v. Duling, 21 Ohio St.2d 13, 254 N.E.2d 670 (1970).

               In this matter, on June 19, 2013, while represented by counsel,

Lawrence filed a pro se motion to dismiss for lack of a speedy trial. In the motion,

Lawrence argued that he was entitled to the triple-count provision for the days he

remained in jail on a probation violation. The state filed a brief in opposition and

argued that under either the triple-count provision or the one-for-one count,

Lawrence’s motion should be denied. The trial court found that the one-for-one

count applied and denied the motion. Thereafter, Lawrence proceeded to trial

where, as previously mentioned, he was convicted.

               However, in his direct appeal, Lawrence abandoned the claimed

speedy trial violation. Because Lawrence could have raised this claim in his direct

appeal, but failed to do so, res judicata precludes him from raising his speedy trial

claim. Russell v. Mitchell, 84 Ohio St.3d 328, 1999-Ohio 489, 703 N.E.2d 1249,

citing State ex rel. Richard v. Seidner, 77 Ohio St.3d 68, 69, 671 N.E.2d 28 (1996).

               Issues properly raised in a petition for postconviction relief are

only those that could not have been raised on direct appeal because the evidence

supporting such issues is outside the record. State v. Jordan, 8th Dist. Cuyahoga
No. 109345, 2021-Ohio-701, ¶ 22, citing State v. Milanovich, 42 Ohio St.2d 46,

50, 325 N.E.2d 540 (1975). Thus, a trial court may dismiss a petition based on res

judicata if an issue was or should have been raised on direct appeal. Jordan at

id., citing State v. Dowell, 8th Dist. Cuyahoga No. 86232, 2006-Ohio-110, ¶ 10,

citing Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph seven of the

syllabus.

              As a result, the trial court did not abuse its discretion when it denied

the petition for postconviction relief, albeit styled a motion to vacate a void

judgment.

              Accordingly, we overrule the sole assignment of error.

              Judgment 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

Cuyahoga County 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.



                                                      ______
EMANUELLA D. GROVES, JUDGE

LARRY A. JONES, SR., P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR