State v. Nichols
2019 Ohio 3084
Ohio Ct. App.2019Background
- Breshaun Nichols was convicted in 2009 of attempted murder, felonious assault, aggravated robbery, having weapons under disability, and firearm specifications; sentenced to 29 years and his convictions were affirmed on direct appeal.
- The trial court later resentenced Nichols sua sponte to correct post-release control notification; a 2013 pro se post-conviction relief (PCR) petition was filed and dismissed as untimely; this Court affirmed that dismissal.
- Nichols filed subsequent motions styled as motions to correct or vacate void judgment; the trial court recast one such motion as a PCR petition and denied it as untimely and barred by res judicata.
- In the challenged motion/petition Nichols argued (1) attempted felony murder is not a cognizable crime in Ohio, (2) the jury’s verdict was ambiguous as to attempted purposeful murder versus attempted felony murder, and (3) the attempted murder jury instruction was erroneous — he sought vacatur of his conviction as void.
- The trial court found the filing was a successive, untimely PCR petition under R.C. 2953.21/2953.23 and that the claims could have been raised on direct appeal (res judicata).
- The Ninth District affirmed, holding the trial court properly treated the motion as a PCR petition, that it was untimely/successive and Nichols failed to invoke the statutory exceptions, and that res judicata barred the claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court properly construed Nichols’ motion as a petition for post-conviction relief | Nichols contended his motion sought to vacate a void judgment and was not a PCR petition | State argued courts may recast motions and Nichols’ filing met criteria for a PCR petition (filed after direct appeal, sought vacation, raised due-process claim) | Court: Proper to construe it as a PCR petition under precedent |
| Whether Nichols’ claims about attempted felony murder and ambiguous jury verdict rendered his conviction void and avoid PCR timeliness rules | Nichols argued attempted felony murder is not a cognizable Ohio offense and the verdict/instruction were defective, so judgment is void | State argued claims were constitutional claims subject to PCR timing; petition was untimely and successive and Nichols did not satisfy statutory exceptions | Court: Petition was untimely and successive; Nichols did not satisfy R.C. 2953.23, so trial court lacked authority to hear it |
| Whether res judicata bars Nichols’ claims | Nichols implied merits review was required because conviction was void | State maintained claims were based on the record and could have been raised on direct appeal | Court: Claims barred by res judicata because they were or could have been raised on direct appeal |
| Whether Nichols demonstrated entitlement to relief under R.C. 2953.23(A)(1) | Nichols made no showing he was unavoidably prevented from discovering facts nor relied on a new, retroactive right; and he made no clear-and-convincing showing of actual innocence | State noted Nichols did not invoke or meet statutory exceptions | Court: Nichols failed to satisfy statutory exceptions; denial affirmed |
Key Cases Cited
- State v. Schlee, 117 Ohio St.3d 153 (recasting motions into proper procedural vehicles)
- State v. Reynolds, 79 Ohio St.3d 158 (PCRs may be recast and standards for void-judgment claims)
- State v. Gardner, 118 Ohio St.3d 420 (due process requires proof beyond a reasonable doubt of every element)
- State v. Perry, 10 Ohio St.2d 175 (res judicata bars claims that were or could have been raised on direct appeal)