State v. Stewart, 2020 Ohio 4709

1986 altercation at a bar resulted in shootings; Stewart was indicted for aggravated murder (R.C. 2903.01(B)) with a firearm specification and aggravated robbery; convicted by a three-judge panel of murder and attempted murder (lesser‑included offenses).
Stewart’s direct appeal and an earlier postconviction petition were unsuccessful; convictions and sentences were upheld.
In Nov. 2018 Stewart filed a “Motion to Vacate a Void Judgment for Lack of Subject‑Matter Jurisdiction,” claiming the trial court constructively amended the indictment by convicting him of an offense not returned by the grand jury.
The trial court denied the motion on the merits; Stewart sought leave for a delayed appeal.
The Tenth District treated the filing as a postconviction petition under R.C. 2953.21, found it to be untimely and successive under R.C. 2953.23 (Stewart did not satisfy exceptions), concluded the trial court lacked jurisdiction to entertain it (should have dismissed), but affirmed the ultimate disposition by modifying the entry to dismiss the petition.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Stewart)	Held
Whether the trial court constructively amended the indictment such that it lost subject‑matter jurisdiction	The court retained jurisdiction; any error was cognizable on direct appeal and would render a sentence voidable, not void	Trial court convicted Stewart of an offense not charged by the grand jury (constructive amendment), so conviction is void for lack of subject‑matter jurisdiction	Court rejected Stewart’s claim by treating it as postconviction collateral attack, and found no jurisdiction to entertain it because petition was untimely/successive; assignment of error overruled
Whether the filing should be recast as a postconviction petition and thus barred as untimely/successive absent R.C. 2953.23 exceptions	The filing is a postconviction petition; Stewart failed to meet R.C. 2953.23 exceptions, so court lacked jurisdiction to hear it	The filing sought vacation of a void judgment based on jurisdictional defect and should not be time‑barred	Court recast the motion as a postconviction petition under R.C. 2953.21, concluded Stewart did not satisfy R.C. 2953.23 exceptions, and held the trial court lacked jurisdiction (petition should be dismissed)

State v. Schlee, 117 Ohio St.3d 153 (2008) (courts may recast irregular motions into the proper procedural category)
State ex rel. Tubbs Jones v. Suster, 84 Ohio St.3d 70 (1998) (subject‑matter jurisdiction cannot be waived)
State v. Apanovitch, 155 Ohio St.3d 358 (2018) (a court lacks jurisdiction to entertain successive/untimely postconviction petitions unless R.C. 2953.23 exceptions are met)
State v. Reynolds, 79 Ohio St.3d 158 (1997) (elements defining a petition for postconviction relief)
State v. Steffen, 70 Ohio St.3d 399 (1994) (postconviction relief is a collateral civil attack, not a right of appeal)
State v. Calhoun, 86 Ohio St.3d 279 (1999) (postconviction relief is statutory, not constitutional)