STATE OF OHIO, PLAINTIFF-APPELLEE vs. CALVIN L. ALEXANDER, DEFENDANT-APPELLANT
No. 105969
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
March 29, 2018
2018-Ohio-1198
BEFORE: E.T. Gallagher, P.J., Stewart, J., and Blackmon, J.
JOURNAL ENTRY AND OPINION; JUDGMENT: AFFIRMED; Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case Nos. CR-13-579939-A and CR-13-580048-A
Mark Stanton
Cuyahoga County Public Defender
BY: Jeffrey Gamso
Assistant Public Defender
Courthouse Square, Suite 200
310 Lakeside Avenue
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O‘Malley
Cuyahoga County Prosecutor
BY: Anthony Thomas Miranda
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Calvin L. Alexander, appeals from the trial court‘s judgment denying his pro se motion to “nullify the judgment entry of convictions.” He raises the following assignment of error for review:
The trial court committed error when it denied Mr. Alexander‘s motion without appointing counsel to represent him and without explanation.
{¶2} After careful review of the record and relevant case law, we affirm the trial court‘s judgment.
I. Procedural History
{¶3} At a single hearing held in March 2015, Alexander entered into a plea agreement with the state in Cuyahoga C.P. Nos. CR-13-579939-A and CR-13-580048-A. In Case No. CR-13-579939-A, Alexander pleaded guilty to one count of having weapons while under disability in violation of
{¶4} In Case No. CR-13-580048-A, Alexander pleaded guilty to four counts of aggravated robbery in violation of
{¶6} In Case No. CR-13-580048-A, Alexander was sentenced to a total of 11 years in prison. The trial court ordered the 11-year prison term to run concurrently with the sentence imposed on the underlying offenses in Case Nо. CR-13-579939-A, but consecutive to the one-year prison term imposed on the firearm specification in Case No. CR-13-579939-A.
{¶7} Alexander did not file a direct appeal from his convictions and sentence. Instead, Alexander filed a pro se motion to discharge his convictions in March 2015, alleging that his speedy trial rights were violated. In September 2015, the trial court denied Alexander‘s motion.
{¶8} In May 2017, Alexander filed a pro se “motion tо nullify judgment entry of conviction and discharge defendant.” In the motion, Alexander argued the judgment entries of conviction in Case Nos. CR-13-579939-A and CR-13-580048-A contain deficiencies and fail to comply with the mandatory requirements оf
{¶10} Alexander now appeals from the trial court‘s judgment.
II. Law and Analysis
{¶11} In his sole assignment of error, Alexander argues the trial court erred by denying his motion to nullify the judgment entries of conviction without appointing counsel to represent him and without explanation.
{¶12} “Where a criminal defendant, subsequent to his or her direct appeal, files a motion seeking vacation or correction of his or her sentence on the basis that his or her constitutional rights have been violated, such a motion is a petition for postconviction relief as defined in
{¶13} This court reviews the trial court‘s decision granting or denying a postconviction relief petition for an аbuse of discretion. State v. Kent, 8th Dist. Cuyahoga No. 94562, 2010-Ohio-6368, ¶ 8, citing State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 45. A trial court is not obligated to hold a hearing on a petition for postconviction relief if the record and the petition fail to show that the defendant is entitled to relief. State v. Williams, 8th Dist. Cuyahoga No. 99357, 2013-Ohio-2706, ¶ 14, citing State v. Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905 (1999).
{¶15} In this case, however, Alexander‘s untimely petition asserts that his sentences are void because the judgment entries of conviction in Case Nos. CR-13-579939-A and CR-13-580048-A are defective. In State v. Boswell, 121 Ohio St.3d 575, 2009-Ohio-1577, 906 N.E.2d 422, the Ohio Supreme Court held that a reviewing court has an obligation to recognize void sentences, vacate them, and order resentencing. Id. at ¶ 12. Relying on Boswell, this court has stated:
[P]resumably, [the Ohio Supreme Court‘s decisiоn] means that a trial court, confronted with an untimely or successive petition for postconviction relief that challenges a void sentence, must ignore the procedural irregularities of the petitiоn [and vacate the sentence if necessary].
State v. Meincke, 8th Dist. Cuyahoga No. 96407, 2011-Ohio-6473, ¶ 13, quoting State v. Holcomb, 184 Ohio App.3d 577, 2009-Ohio-3187, 921 N.E.2d 1077, ¶ 19 (9th Dist.). In these circumstances, appellate courts, including this court, have addressed the merits of otherwise untimely petitions to determine if any alleged errors rendered the defendant‘s sentence void. See State v. Bandy, 8th Dist. Cuyahoga Nos. 101785 and 101786,
{¶16} On appeal, Alexander argues the judgment entries of conviction in Case Nos. CR-13-579939-A and CR-13-580048-A are “fatally defective and void” because they fail to specify “(1) the fact of conviction, (2) the verdict, (3) that the court gave him an opportunity to present mitigating evidence, (4) that the court gave him an opportunity to allocute, or (5) that the court infоrmed him of his appellate rights, or that he requested an appeal and appointment of counsel for that appeal.”
{¶17}
{¶18} In this case, а review of the judgment entries of conviction demonstrates that in each instance, the trial court memorialized Alexander‘s guilty pleas and set forth his prison sentence in detail. In addition, each entry contаins the judge‘s signature, and the clerk of court‘s time stamp.
{¶19} Alexander does not dispute that the trial court sufficiently set forth his sentence in each journal entry. However, without expounding, Alexander broadly complains that the entries did not contain “the fact of the conviction or verdict.”
{¶20} This court rejected a similar claim in State v. Rogers, 8th Dist. Cuyahoga No. 99246, 2013-Ohio-3246. In Rogers, this court held that by stating in its journal entry that the defendant had entered a plea of guilty, the trial court satisfied the requirement that a judgment set forth “the fact of conviction.” Id. at ¶ 19, citing State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163. See also State v. Taylor, 8th Dist. Cuyahoga No. 104313, 2016-Ohio-8057, ¶ 8.
{¶21} Following the clear precedent of this court, we find the trial court satisfied the requirement that a judgment set forth “the fact of conviction” by stating in each journal entry that Alexander “plead guilty” to the offenses specified therein. Contrаry to Alexander‘s position, the trial court was not also required to make a specific finding of guilt or render a guilty verdict in order to comply with
{¶22} With respect to Alexander‘s remaining challenges to the contеnts of the judgment entries of conviction, we recognize that
{¶24} Next, Alexander asserts that his purported sentence is void due to the trial court‘s failure to оrder a presentence investigation. He contends that the trial court‘s inaction “prevented him from receiving a sentence of community control and violated his rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and its progeny.” We are not persuaded by Alexander‘s argument.
{¶26} Based on the foregoing, we find the record and petition do not identify an error that would render Alexander‘s sentences void. Accordingly, the trial court did not abuse its discretion in denying the petition for pоstconviction relief without holding a hearing.
{¶27} Alexander‘s sole assignment of error is overruled.
{¶28} Judgment affirmed.
It is ordered that appellees recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the 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.
EILEEN T. GALLAGHER, PRESIDING JUDGE
MELODY J. STEWART, J., and
PATRICIA ANN BLACKMON, J., CONCUR