2015 Ohio 3161
Ohio Ct. App.2015Background
- Richard Evans was convicted in 2010 of felony murder (R.C. 2903.02(B)) and having a weapon while under disability for his role in a fatal bar fight; aggregate sentence 20 years to life.
- Evans’ direct appeal (challenging sufficiency/manifest weight, evidentiary issues, and failure to appoint an investigator) was rejected in 2011.
- In December 2014 Evans filed a pro se Civ.R. 60(B) motion claiming the trial court lacked subject-matter jurisdiction to convict him of felony murder; he attached an affidavit alleging ineffective assistance of counsel as cause for delay.
- The trial court recharacterized the filing as a petition for post-conviction relief under R.C. 2953.21, found it untimely, concluded Evans failed to show he was unavoidably prevented from filing sooner, and held res judicata barred his claims.
- Evans appealed, raising: (1) voidness of the felony-murder conviction; (2) trial court’s failure to hold an evidentiary hearing or make findings; (3) further voidness arguments regarding statutory elements; and (4) claim that the court’s jury instructions lowered the State’s burden of proof.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Civ.R. 60(B) filing should be treated as a post-conviction petition and dismissed as untimely | State: trial court may recast the motion as a petition; R.C. 2953.21 governs timing | Evans: his claim of voidness is not subject to timeliness or res judicata bars | Court: properly treated as post-conviction petition; petition untimely and Evans failed to show unavoidable delay; res judicata applies |
| Whether the felony-murder conviction is void for failure to prove predicate felony excluded by R.C. 2903.03/2903.04 | State: felony-murder statute excludes certain predicates; no jurisdictional defect | Evans: prosecution failed to prove the predicate was not a violation of 2903.03/2903.04, so conviction is void ab initio | Court: conviction is not void; at most evidentiary insufficiency (voidable), not a jurisdictional defect |
| Whether R.C. 2945.75(A)(2) renders the verdict void for failing to state the additional element distinguishing felony murder from involuntary manslaughter | State: statute not applicable here; challenge must be on direct appeal | Evans: verdict failed to state the additional element required for felony murder | Court: 2945.75(A)(2) inapplicable (addresses degree within an offense); any error would have been for direct appeal and is barred by res judicata |
| Whether jury instructions improperly lowered the State’s burden of proof | State: instruction complaint depends on the substantive claims already rejected; should have been raised on direct appeal | Evans: court failed to instruct jury that State must prove (1) predicate not covered by 2903.03/2903.04 and (2) additional element distinguishing felony murder from involuntary manslaughter beyond a reasonable doubt | Court: rejected—premised on rejected substantive arguments and is barred by res judicata |
Key Cases Cited
- State v. Schlee, 117 Ohio St.3d 153 (2008) (trial court may recast a Civ.R. 60(B) motion as a petition for postconviction relief when the motion is unambiguously presented as Civ.R. 60(B))