STATE OF OHIO v. ANDRE CALDWELL
Appellate Case No. 24333
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
March 16, 2012
2012-Ohio-1091
HALL, J.
Trial Court Case No. 09-CR-1702; (Criminal Appeal from Common Pleas Court)
Attorney for Plaintiff-Appellee
TYLER D. STARLINE, Atty. Reg. #0078552, Finlay, Johnson & Beard, Ltd., 260 North Detroit Street, Xenia, Ohio 45385
Attorney for Defendant-Appellant
HALL, J.
{¶ 1} In February 1996, Andre Caldwell was convicted of third-degree felony
{¶ 2} In two assignments of error, Caldwell alleges that the trial court erred by dismissing the motion to vacate and erred by implicitly denying it.2 The principal issue in the first allegation is whether the trial court‘s treating the motion as a statutory petition for postconviction relief was proper. We conclude that it was and, furthermore, that it was untimely. The principal issue in the second allegation is whether either Bodyke, as applied in State v. Gingell, 128 Ohio St.3d 444, 2011-Ohio-1481, 947 N.E.2d 192, or State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, decided during the pendency of this appeal, rendered Caldwell‘s failure-to-verify conviction void. We conclude that these decisions rendered his conviction not void but voidable.
A. The Petition for Postconviction Relief
{¶ 3} “Courts may recast irregular motions into whatever category necessary to identify and establish the criteria by which the motion should be judged.” State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12, citing State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, 773 N.E.2d 522, ¶ 10 (“Our decision in [State v.] Reynolds[, 79 Ohio St.3d 158, 679 N.E.2d 1131 (1997)] set forth a means by which courts can classify such irregular motions.“). The Ohio Supreme Court has found that a motion meets the definition of a petition for postconviction relief in
{¶ 4} But Caldwell filed the motion to vacate too late. Because he did not appeal, Caldwell had 180 days after the time ended for filing an appeal in which to file a petition—which he did not do—subject to two exceptions—neither of which applies here. See
{¶ 5} Furthermore, even if the motion had been timely filed, it likely would have been
{¶ 6} Applying res judicata in these types of situations promotes the principle of finality. In State v. Szefcyk, 77 Ohio St.3d 93, 671 N.E.2d 233 (1996), the defendant was convicted of involuntary manslaughter, a conviction that was predicated on minor-misdemeanor traffic violations. The defendant timely appealed the involuntary-manslaughter conviction, arguing that a minor misdemeanor cannot serve as the predicate offense. The appellate court affirmed, and the Ohio Supreme Court declined to hear his appeal. A couple of years later, in another case, the Court held that a minor misdemeanor may not serve as a predicate offense under the involuntary-manslaughter statute. Based on this holding, the defendant filed a petition for postconviction relief. The Court denied relief. The Court held that the defendant could not use a postconviction-relief petition to relitigate the predicate-offense issue that he had fully litigated simply because a subsequent decision changed the law. Id. at 95, citing State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph seven of the syllabus. (Duling approved and followed this paragraph of Perry‘s syllabus. See Duling, 21 Ohio St.2d at paragraph two of the syllabus.) This holding, said the Court, “underscores the importance of finality of judgments of conviction.” Id. The Court then explained the public-policy basis:
Public policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest, and that matters once tried shall be considered forever settled as between the parties. We have stressed that “[the] doctrine of res judicata is not a mere matter of practice or procedure inherited from a more technical time than ours. It is a rule of fundamental and substantial justice, ‘of public policy and of private peace,’ which should be cordially regarded and enforced by the courts.” Id., quoting Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 401, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981).
{¶ 7} Whether because his motion was untimely or because the constitutionality of his conviction is barred by res judicata, the trial court correctly determined that Caldwell is not entitled to postconviction relief.
{¶ 8} The first assignment of error is overruled.
B. The Court‘s Inherent Authority to Vacate Void Judgments
{¶ 9} Caldwell‘s primary contention is that his conviction is void. He argues that the trial court should have granted his motion to vacate under its inherent power to vacate a void judgment. See Cincinnati School Dist. Bd. of Edn. v. Hamilton Cty. Bd. of Revision, 87 Ohio St.3d 363, 368, 721 N.E.2d 40 (2000), citing Patton v. Diemer, 35 Ohio St.3d 68, 518 N.E.2d 941 (1988), paragraph four of the syllabus (“The authority to vacate a void judgment * * * constitutes an inherent power possessed by Ohio courts.“). If the conviction was determined to be void, the timing of Caldwell‘s motion is inconsequential. It would have been void then, and void now. But, Caldwell‘s judgment of conviction is not void; it‘s only voidable.
1. Background
{¶ 10} A few months after Caldwell‘s 1996 corruption-of-a-minor conviction, Megan‘s Law went into effect, significantly changing Ohio‘s sex-offender-registration-and-notification law. Sometime before he was released from prison in December 1999, Caldwell was classified under Megan‘s Law as a sexually oriented offender. Megan‘s Law required Caldwell to verify his residence address annually for ten years. In January 2008, the AWA replaced Megan‘s Law, and under the AWA, Caldwell was reclassified as a Tier-II sex offender. Caldwell did not appeal his reclassification. The AWA requires Tier-II offenders to verify their residence address every 180 days for 25 years. In June 2009, Caldwell pleaded guilty to a charge of failing to verify his address, and he was sentenced to three years in prison. Caldwell did not appeal this conviction.
{¶ 11} After the time expired for direct appeal, and the 180-day period he had to file for postconviction relief ended, the Ohio Supreme Court decided the trio of cases that Caldwell cites. In June 2010, Bodyke held that the AWA‘s reclassification provisions were unconstitutional because they violated the separation-of-powers doctrine by requiring the attorney general to reclassify sex offenders who had already been classified by court order and whose classification had already been adjudicated by a court. As a remedy, the Court severed the provisions, saying that, “after severance, they may not be enforced.” (Emphasis added.) Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, at ¶ 66. That is, the provisions “may not be applied to offenders previously adjudicated by judges under Megan‘s Law.” (Emphasis added.) Id. “And,” continued the Court, “the classifications and community-notification and registration orders imposed previously by judges are reinstated.” (Emphasis added.) Id. In January 2011, the Court applied Bodyke‘s holding in Gingell. For a 1981 rape conviction, the Gingell defendant was originally classified under Megan‘s Law as a
{¶ 12} 2. The finality of Caldwell‘s conviction
{¶ 13} Caldwell urges us to follow our decision in State v. Eads, 2d Dist. Montgomery App. No. 24696, 2011-Ohio-6307, in which we vacated a defendant‘s convictions for violating AWA registration requirements. In Eads, we held that, under Williams, because the defendant had committed his underlying sex offense before the AWA went into effect, his AWA classification was void. But we did not expressly hold that the defendant‘s conviction was void. And even if this could be inferred, Eads must be distinguished from the present case based on a key procedural difference: Eads was a direct appeal; the present case is a collateral attack. In Eads this author‘s concurrence agreed that a defendant may “raise the issue of the Megan‘s Law-Adam Walsh switch in the direct appeal of their conviction for violation of their registration requirements.” Id. at ¶ 33 (Hall, J., concurring). But it was pointed out that the
{¶ 14} The Ohio Supreme Court (and this Court) has said that “‘“in cases where the court has undoubted jurisdiction of the subject matter, and of the parties, [although] the action of the trial court * * * involv[es] an erroneous exercise of jurisdiction [ie. an error of law], which might be taken advantage of by direct appeal, or by direct attack, yet the judgment or decree is not void though it might be set aside for the irregular or erroneous exercise of jurisdiction if appealed from. It may not be called into question collaterally.“‘” (Emphasis sic.) State v. Filiaggi, 86 Ohio St.3d 230, 240, 714 N.E.2d 867 (1999), quoting In re Waite, 188 Mich.App. 189, 200, 468 N.W.2d 912 (1991), quoting Jackson City Bank & Trust Co. v. Fredrick, 271 Mich. 538, 544-546, 260 N.W. 908 (1935); State v. Wilfong, 2d Dist. Clark App. No. 2000-CA-75, 2001 WL 256326, *3-4 (Mar. 16, 2001) (quoting the same). Therefore, because Caldwell‘s pre-Bodyke, pre-Williams conviction for violating the AWA‘s registration requirements is, at best, an erroneous exercise of jurisdiction, meaning a legal error, it may not be collaterally attacked.
{¶ 15} Our conclusion here is not inconsistent with this Court‘s recent decision in State v. Montgomery, 2d Dist. Montgomery App. No. 24450, 2012-Ohio-391. In Montgomery, the defendant was convicted of rape in 1987 and later adjudicated a sexually-oriented offender under Megan‘s Law, which required him to verify his address annually. When the AWA was enacted, the defendant was automatically reclassified as a Tier-III sex offender and required to verify his address every 90 days. In July 2009, the defendant violated his verification duty. He pleaded guilty to a charge of failure to verify and was sentenced to three years in prison. He did
{¶ 16} On appeal, this Court determined that Montgomery‘s motion to vacate was “more correctly” characterized as a Crim.R. 32.1 motion to withdraw a plea and that the conviction should be reversed. In support, the Montgomery case cited State v. Pritchett, 2d Dist. Montgomery App. No. 24183, 2011-Ohio-5978, in which the defendant filed, a year after his conviction under the AWA, a Crim.R. 32.1 motion to withdraw his plea based on Bodyke. The Pritchett decision had vacated Pritchett‘s sentence, holding that the sentence was void and saying that it would be a manifest injustice for the defendant to continue serving a void sentence. But the underlying conviction in Pritchett had been upheld based on the conclusion that Pritchett‘s failure to provide a new address was valid under either Megan‘s Law or the AWA registration requirements.
{¶ 17} Relying on Pritchett, Montgomery vacated that defendant‘s guilty plea, sentence, and conviction itself. But Montgomery arrived at this conclusion after “review[ing] Appellant‘s arguments under the law governing a postsentence motion to withdraw a plea rather than under the more restrictive rules governing Civ.R. 60(B) motions or petitions for postconviction relief.” Montgomery at ¶ 15. There was also a question of whether Montgomery could have been charged, at all, under either classification scheme. Id. at ¶ 23. Montgomery‘s motion to vacate was “more correctly” characterized by this court as a Crim.R. 32.1 motion to withdraw a plea. The trial court‘s judgment overruling Montgomery‘s motion had been based
{¶ 18} Caldwell‘s motion should not be reviewed under the same analysis. The trial court dismissed Caldwell‘s motion to vacate because it was untimely under the postconviction-relief statute. As we concluded above, the court‘s treatment of the motion as one for postconviction relief was a reasonable construction of the arguments made in the motion. The motion does not contain any factual material to demonstrate that Caldwell could not be charged, at all, for violation of reporting requirements. Accordingly, because we cannot simply disregard the definite and plainly proper characterization made by the trial court, Montgomery does not apply.
{¶ 19} The second assignment of error is overruled.
C. The Sentence
{¶ 20} Although Caldwell does not separately challenge his sentence, such a challenge is fairly implied. Caldwell‘s sentencing entry does not specifically state that he was sentenced to a mandatory three years in prison as a result of the version of
{¶ 21} We therefore affirm the trial court‘s conviction of Caldwell. But we vacate the sentence and remand this case so that Caldwell can be sentenced under former law.
DONOVAN, J., concurs.
FROELICH, J., concurring:
{¶ 22} I write separately only to stress that my concurrence is largely based on the record presented, or not presented, at the trial level by the Appellant. Further, the Ohio Supreme Court has accepted State v. Brunning, 8th Dist. Cuyahoga No. 95376, 2011-Ohio-1936 appeal accepted, 2011-Ohio-5129 (S.Ct. Case No. 2011-1066); State v. Campbell, 8th Dist. Cuyahoga No. 95348, 2011-Ohio-2281, appeal accepted, 2011-Ohio-6124 (S.Ct. Case No. 2011-1061); and State v. Gilbert, 8th Dist. Cuyahoga Nos. 95083 and 95084, 2011-Ohio-1928, appeal accepted, 2011-Ohio-6124 (S.Ct. Case No. 2011-1062); while not directly on point with this case, they hopefully will help clarify the quagmire that now exists for trial and appellate courts.
Mathias H. Heck, Jr.
Johnna M. Shia
Tyler D. Starline
Hon. Mary L. Wiseman