STATE OF OHIO, Plaintiff-Appellee, - vs - MARK D. BORECKY, Defendant-Appellant.
CASE NO. 2019-L-078
ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO
July 20, 2020
2020-Ohio-3697
THOMAS R. WRIGHT, J.
Civil Appeal from the Lake County Court of Common Pleas, Case No. 2005 CR 000727. Judgment: Affirmed.
Mark D. Borecky, pro se, 314 East 246th Street, Euclid, Ohio 44123 (Defendant-Appellant).
THOMAS R. WRIGHT, J.
{¶1} Appellant, Mark D. Borecky appeals the trial court‘s July 10, 2019 judgment overruling his postconviction petition. We affirm.
{¶2} Borecky pleaded guilty to rape, a first-degree felony in violation of
{¶3} Borecky moved for postconviction relief on June 17, 2019 contending his conviction is void because the trial court lacked jurisdiction, pursuant to
{¶4} Borecky raises one assigned error:
{¶5} “The Lake County Common Pleas Court never acquired the proper subject matter jurisdiction when the state proceeded by way of information due to the mandatory nature of
{¶6} Borecky reiterates his argument presented to the trial court that his conviction is void. We disagree.
{¶7} “‘[I]n general, a void judgment is one that has been imposed by a court that lacks subject-matter jurisdiction over the case or the authority to act. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 27. Unlike a void judgment, a voidable judgment is one rendered by a court that has both jurisdiction and authority to act, but the court‘s judgment is invalid, irregular, or erroneous.‘” State v. Straley, 2019-Ohio-5206, ¶ 25 quoting State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 12.
{¶8} And unlike a voidable sentence, “a void sentence may be reviewed at any time, on direct appeal or by collateral attack * * *.” State v. Straley, 2019-Ohio-5206, supra, ¶ 24. “[A] voidable judgment, although imposed irregularly or erroneously, has the effect of a proper legal order unless it is successfully challenged on direct appeal.” Geauga Sav. Bank v. McGinnis, 11th Dist. Trumbull No. 2010-T-0052, 2010-Ohio-6247, ¶ 18.
{¶9} Whether a court of common pleas possesses subject matter jurisdiction is a question of law that we review de novo. State v. Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, 121 N.E.3d 351, reconsideration denied, 154 Ohio St.3d 1467, 2018-Ohio-5210, 114 N.E.3d 217.
{¶10} Borecky contends that he was facing life imprisonment, and as such, he had to be charged and prosecuted via indictment as opposed to information, and that this renders his conviction void.
{¶11} A complaint was originally filed in municipal court stating that Borecky was facing life in prison based on his alleged violation of
{¶12} Borecky then waived his right to prosecution by indictment and was charged by information with one count of rape in violation of
{¶13} Borecky‘s argument is based on
“A felony that may be punished by death or life imprisonment shall be prosecuted by indictment. All other felonies shall be prosecuted by indictment, except that after a defendant has been advised by the court of the nature of the charge against the defendant and of the defendant‘s right to indictment, the defendant may waive that right in writing and in open court.”
{¶15} His argument also relies on
“Any criminal offense which is not punishable by death or life imprisonment may be prosecuted by information filed in the common pleas court by the prosecuting attorney if the defendant, after he has been advised by the court of the nature of the charge against him and of his rights under the constitution, is represented by counsel or has affirmatively waived counsel by waiver in writing and in open court, waives in writing and in open court prosecution by indictment.”
{¶17} Borecky did not waive his right to be prosecuted by indictment for rape in violation of
{¶18} Thus, his conviction is not void, and his assigned error lacks merit.
{¶19} The trial court also held that Borecky‘s postconviction petition was untimely. We agree.
{¶20} “‘[W]hether a court of common pleas possesses subject-matter jurisdiction to entertain an untimely petition for postconviction relief is a question of law, which
{¶21} The failure to timely file a petition for postconviction relief deprives a trial court of jurisdiction to address the petition. State v. Waulk, 4th Dist. Ross No. 15CA3501, 2016-Ohio-5018, ¶ 12, citing State v. Beaver, 131 Ohio App.3d 458, 722 N.E.2d 978 (11th Dist.1998).
{¶22} The statute governing petitions for postconviction relief,
{¶23} “Except as otherwise provided in section 2953.23 of the Revised Code, a petition under division (A)(1) of this section shall be filed no later than three hundred sixty-five days after the date on which the trial transcript is filed in the court of appeals in the direct appeal of the judgment of conviction or adjudication * * *.”
{¶24}
{¶25} Moreover, Borecky‘s petition was filed June 17, 2019, which is well beyond 365 days after the transcript of proceedings was filed in the court of appeals in his direct appeal in May of 2006. Thus, Borecky‘s postconviction petition was untimely as a matter of law, and as such, the trial court lacked jurisdiction to address it. State v. Apanovitch,
{¶26} Finally, the argument Borecky raises is based on matters of record at the time of conviction, i.e., the information charging him with rape and the complaint filed in the municipal court. Because Borecky could have raised this argument on direct appeal, res judicata bars him from raising it now. State v. Steffen, 70 Ohio St.3d 399, 410, 1994-Ohio-111, 639 N.E.2d 67 (1994) (“Postconviction review is a narrow remedy, since res judicata bars any claim that was or could have been raised at trial or on direct appeal.“); State v. Sankey, 11th Dist. Ashtabula No. 2019-A-0037, 2019-Ohio-2870, ¶ 9.
{¶27} Based on the foregoing, the trial court‘s decision is affirmed.
TIMOTHY P. CANNON, P.J.,
MATT LYNCH, J.,
concur.