STATE OF OHIO, Plaintiff-Appellee, vs. BRANDON CARTER, Defendant-Appellant.
APPEAL NO. C-170655; TRIAL NO. B-1500483
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
May 8, 2019
2019-Ohio-1749
Criminal Appeal From: Hamilton County Court of Common Pleas; Judgment Appealed From Is: Affirmed as Modified
Brandon Carter, pro se.
MYERS, Judge.
{¶1} Defendant-appellant Brandon Carter appeals the Hamilton County Common Pleas Court’s judgment overruling his “Motion for Relief from Judgment Fraud upon the Court Pursuant to
{¶2} Carter was indicted on two counts of aggravated robbery, two counts of robbery, three counts of felonious assault, and a single count of improperly handling firearms in a motor vehicle. In 2015, a jury found Carter guilty of robbery as charged in count two of the indictment, but deadlocked on the remaining charges. The trial court sentenced him on count two and entered judgment accordingly. In 2016, facing retrial on the deadlocked charges, Carter pled guilty to robbery as a lesser-included offense of the aggravated robbery charged in count three, in exchange for dismissal of the remaining charges. On direct appeal, we affirmed his 2015 conviction. State v. Carter, 2017-Ohio-1328, 88 N.E.3d 513 (1st Dist.), appeal not accepted, 150 Ohio St.3d 1444, 2017-Ohio-7843, 82 N.E.3d 1176. He did not appeal his 2016 conviction.
{¶3} In 2017, Carter filed with the common pleas court motions captioned “Motion for Relief from Judgment Fraud upon the Court Pursuant to
{¶4} In this appeal from the overruling of his motions, Carter presents four assignments of error.
Motion for Relief from Judgment
{¶5} Assignments of error one through three challenge the common pleas court’s failure to conduct a hearing on or to grant the relief sought in his “Motion for Relief from Judgment.” The challenge is meritless.
{¶6} Motion reviewable under postconviction statutes. In his motion, Carter sought relief from his 2015 and 2016 convictions under
{¶7} No jurisdiction to entertain late challenge to 2015 conviction. The postconviction statutes did not confer upon the common pleas court jurisdiction to entertain Carter’s postconviction challenge to his 2015 robbery conviction.
{¶8} Res judicata bars challenge to 2016 conviction. Carter also sought in his motion relief from his 2016 conviction upon his guilty plea to robbery as a lesser-included offense of the aggravated robbery charged in count three. He asserted that ordering a retrial on the deadlocked counts without discharging the jury as required by
{¶9} His postconviction challenge to his 2016 conviction was timely asserted.
{¶10} But the challenge was barred under the doctrine of res judicata. To prevail on a postconviction claim, the petitioner must demonstrate a denial or infringement of his rights in the proceedings resulting in his conviction that rendered the conviction void or voidable under the state or federal constitution.
{¶11} A postconviction claim is subject to dismissal without a hearing if the petitioner has failed to support the claim with evidentiary material setting forth sufficient operative facts to demonstrate substantive grounds for relief.
{¶12} Under the doctrine of res judicata, a judgment of conviction bars a defendant from raising in any proceeding, other than a direct appeal from that judgment, any claim “that was raised or could have been raised” in the direct appeal. State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus. Thus, res judicata bars a postconviction claim that could fairly have been determined in the direct appeal, based upon the trial record and without resort to evidence outside the record. Id.; State v. Cole, 2 Ohio St.3d 112, 114, 443 N.E.2d 169 (1982).
{¶13} Carter’s challenge in his motion to his 2016 conviction was not supported by, nor did it depend for its resolution upon evidence outside the record of the proceedings leading to that conviction. Because that challenge could fairly have been determined on direct appeal, it was subject to dismissal without an evidentiary hearing, under the doctrine of res judicata. See Perry at paragraph nine of the syllabus.
Motion for Recusal
{¶14} In his fourth assignment of error, Carter asserts that the common pleas court, having served as the trial judge in the proceedings leading to his
{¶15}
{¶16} In its 1978 decision in Beer v. Griffith, 54 Ohio St.2d 440, 441-442, 377 N.E.2d 775 (1978), the Ohio Supreme Court reversed an appeals court’s decision declaring a trial court’s judgment void on the ground that the trial judge was disqualified from hearing the case. Citing the constitutional and statutory provisions for disqualification of a common pleas court judge, the Supreme Court held that the court of appeals was “without authority to pass upon disqualification or to void the judgment of the trial court upon that basis,” because “only the Chief Justice or his designee may hear disqualification matters.” Beer at 441-442.
{¶17} This court has followed Beer to hold that a court of appeals has no “authority” or “jurisdiction” to decide the matter of disqualification of a judge for bias or prejudice. See, e.g., Taft, Stettinius, & Hollister, LLP v. Calabrese, 2016-Ohio-4713, 69 N.E.3d 72, ¶ 29 (1st Dist.) (overruling an assignment of error contending that the trial judge had been biased and should have recused, because a court of appeals has no “authority” to determine whether a trial judge was biased or prejudiced); Goddard v. Children’s Hosp. Med. Ctr., 141 Ohio App.3d 467, 469-470, 751 N.E.2d 1062 (1st Dist. 2000) (holding that a court of appeals has no
{¶18} In 2012, the Ohio Supreme Court in State ex rel. Hough v. Saffold, 131 Ohio St.3d 54, 2012-Ohio-28, 960 N.E.2d 451 (2012), denied Hough’s petition for writs of mandamus and procedendo to compel the common pleas court to issue a final appealable order overruling Hough’s motion for recusal from his case. The Supreme Court cited its decision in Beer and our decision in Goddard to hold that Hough was “not entitled to a final, appealable order on the judge’s denial of his motion to recuse herself, because a court of appeals lacks jurisdiction to review these decisions.” Hough at ¶ 1-2.
{¶19} In 2014, the Ohio Supreme Court reaffirmed its holding in Beer in State v. Osie, 140 Ohio St.3d 131, 2014-Ohio-2966, 16 N.E.3d 588. Osie contended that his trial judge should have recused because his pecuniary relationship with the defense’s mitigation specialist created an appearance of impropriety. The Supreme Court overruled that proposition of law, holding that the constitution “vests exclusive authority to pass on disqualification matters in the chief justice or her designee,” and that a party who fails to file an
{¶21} A similar distinction underlay our 2017 decision in State v. Loudermilk, 2017-Ohio-7378, 96 N.E.3d 1037 (1st Dist.). In Loudermilk, we addressed on the merits, but overruled, an assignment of error alleging that judicial bias had denied the appellant a fair trial. We noted that “[t]he term ‘judicial bias’ has developed two related but independent meanings,” one relating to “the formal process used to remove a judge from hearing a case because the judge has an interest in the matter or is prejudiced in favor of one party,” and a second, alleged by Loudermilk, occurring “when a judge’s conduct in overseeing a case prevents a party from receiving a fair trial.” Id. at ¶ 17. We concluded that the court has “the authority to review a claim of judicial bias as it impacts the outcome of the case.” Id. at ¶ 19.
{¶22} Nevertheless, the Ohio Supreme Court has continued to read the constitution to vest in the chief justice or the chief justice’s designee the “exclusive” or “sole” authority to pass on the matter of disqualification of a common pleas court judge. State v. Jackson, 149 Ohio St.3d 55, 2016-Ohio-5488, 73 N.E.3d 414, ¶ 34; Osie at ¶ 62, citing Beer at 441-442. And we have consistently followed Beer to hold
{¶23} In his fourth assignment of error in this appeal from the overruling of his “Motion for Recusal,” Carter does not allege that any claimed judicial bias is inextricably intertwined with another claim. He challenges the common pleas court judge’s failure to disqualify herself from deciding his postconviction motion for relief from his convictions. We have no jurisdiction to review the matter of disqualification of a common pleas court judge. Accordingly, we do not reach the merits of the fourth assignment of error.
{¶24} Due-process, double-jeopardy, and judicial-bias challenges would not have rendered the convictions void. Finally, a court always has jurisdiction to correct a void judgment. See State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 18-19. But the challenges presented in Carter’s motions, even if demonstrated, would not have rendered his convictions void. See State v. Wurzelbacher, 1st Dist. Hamilton No. C-130011, 2013-Ohio-4009, ¶ 8; State v. Grant, 1st Dist. Hamilton No. C-120695, 2013-Ohio-3421, ¶ 9-16 (holding that a judgment of conviction is void only to the extent that a sentence is unauthorized by statute or does not include a statutorily mandated term or if the trial court lacks subject-matter jurisdiction or the authority to act); see also Dunbar v. State, 136 Ohio St.3d 181, 2013-Ohio-2163, 992 N.E.2d 1111, ¶ 14-15 (noting the “traditional[]” rule that, except with certain sentencing errors, a judgment is not void unless “a court acts without subject-matter
We Affirm
{¶25} We do not reach the merits of Carter’s fourth assignment of error, because we have no jurisdiction to review his challenge on appeal to the overruling of his “Motion for Recusal.” We overrule assignments of error one through three, because Carter’s “Motion for Relief from Judgment” was subject to dismissal without a hearing. Accordingly, upon the authority of
Judgment affirmed as modified.
MOCK, P.J., and ZAYAS, J., concur.
Please note: The court has recorded its own entry on the date of the release of this opinion.