STATE OF OHIO, v. KENYATTA COLLINS
CASE NO. 16 MA 0045
STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
February 22, 2017
2017-Ohio-648
Hon. Carol Ann Robb, Hon. Gene Donofrio, Hon. Cheryl L. Waite
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 2012 CR 892. JUDGMENT: Affirmed.
For Plaintiff-Appellee: Atty. Paul J. Gains, Mahoning County Prosecutor; Atty. Ralph M. Rivera, Assistant Prosecuting Attorney, 21 West Boardman St., 6th Floor, Youngstown, Ohio 44503
For Defendant-Appellant: Kenyatta Collins, pro se, Inmate No. 651-971, Trumbull Correctional Camp, P.O. Box 640, 5701 Burnett Road, Leavittsburg, Ohio 44430
ROBB, P.J.
{¶1} Defendant-Appellant Kenyatta Collins appeals the judgment of the Mahoning County Common Pleas Court overruling his “Motion To Vacate Non-Cognizable Offense.” He asserts his conviction of attempted murder is void. He relies on the Ohio Supreme Court‘s Nolan case. However, Nolan was a pronouncement on the non-cognizable charge of “attempted felony murder.” In that case, the attempt statute was improperly applied to the type of murder defined by division (B) of
STATEMENT OF THE CASE
{¶2} On August 14, 2012, Appellant asked the victim to meet him at a club in Youngstown. When the victim arrived, he was robbed and shot. Appellant was indicted for: attempted murder under
{¶3} On the day trial was to begin, Appellant entered a guilty plea to attempted murder under
{¶5} After ten months without a ruling, Appellant filed an original action in this court against the trial judge. The judge filed an answer arguing Appellant had no clear right to have his conviction vacated and had an adequate legal remedy through a direct appeal. On March 21, 2016, we ordered the trial court to issue a ruling on Appellant‘s March 11, 2015 motion. See State ex rel. Collins v. Sweeney, 7th Dist. No. 16 MA 0007, 2016-Ohio-1171, ¶ 6-10 (noting the judge‘s argument misconstrued the type of relief sought in the mandamus action: “he is simply seeking to have the trial court rule on his March 11, 2015 motion“), citing State ex rel. Culgan v. Collier, 135 Ohio St. 3d 436, 2013-Ohio-1762, 988 N.E.2d 564.
{¶6} On April 1, 2016, the trial court overruled Appellant‘s motion to vacate his attempted murder conviction. The court‘s entry noted, “The State of Ohio objects to said Motion.” As Appellant points out, however, the docket shows the state never responded to his March 11, 2015 motion. Appellant filed a timely notice of appeal from the trial court‘s April 1, 2016 judgment.
MURDER & ATTEMPT STATUTES
{¶7} Pursuant to
{¶8} The offense described by division (B) is more specifically known as “felony murder.” See, e.g., State v. Fry, 125 Ohio St. 3d 163, 2010-Ohio-1017, 926 N.E.2d 1239, ¶ 43. There is no mens rea component contained in the felony murder
{¶9} The general attempt statute provides: “No person, purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of an offense, shall engage in conduct that, if successful, would constitute or result in the offense.”
ASSIGNMENT OF ERROR: APPLICATION OF NOLAN
{¶10} Appellant‘s sole assignment of error alleges:
“THE TRIAL COURT DENIED APPELLANT DUE PROCESS OF LAW AND EQUAL PROTECTION UNDER THE LAW, WHEN THAT COURT FAILED TO VACATE VOID JUDGMENT ON NON-COGNIZABLE OFFENSE.”
{¶11} Appellant asks this court to apply the Ohio Supreme Court‘s Nolan holding to his attempted murder conviction. In Nolan, the Court reviewed an “attempted felony murder” conviction under the attempt statute and division (B) of the murder statute. State v. Nolan, 141 Ohio St. 3d 454, 2014-Ohio-4800, 25 N.E.3d 1016. The Court concluded it is not possible to commit “attempted felony murder” in Ohio. Id. at ¶ 5. In accordance: “Attempted felony murder is not a cognizable crime in Ohio.” Id. at syllabus. The Supreme Court explained how an attempt offense requires the mens rea of purposely or knowingly. See id. at ¶ 6-7, 10, citing
intent to kill need not be proven for the state to obtain a conviction for felony murder, so that a person can be convicted of that offense even though the death was unintended. Thus, this case devolves to an anfractuous question: Can a person be guilty of attempting to cause an
unintended death? We conclude that the court of appeals correctly determined that it is impossible to purposely or knowingly cause an unintended death. Accordingly, we hold that attempted felony murder is not a cognizable crime in Ohio.
Id. at ¶ 10.
{¶12} The state initially contends Appellant‘s argument is barred by the doctrine of res judicata as he could have raised this argument via direct appeal but failed to appeal from his conviction. Under the doctrine of res judicata, a defendant who was represented by counsel is barred from raising an issue in a petition for post-conviction relief if the defendant raised or could have raised the issue at trial or on direct appeal. See, e.g., State v. Szefcyk, 77 Ohio St. 3d 93, 95, 671 N.E.2d 233 (1996), syllabus; State v. Perry, 10 Ohio St. 2d 175, 180, 226 N.E.2d 104 (1967).
{¶13} To counter this argument, Appellant relies on the proposition that a void judgment can be attacked at any time. “A void judgment is a nullity and open to collateral attack at any time.” Lingo v. State, 138 Ohio St. 3d 427, 2014-Ohio-1052, 7 N.E.3d 1188, ¶ 46 (“The statement that void judgments are not open to collateral attack and that attacks on void judgments can be defeated by the doctrine of res judicata is mistaken.“). See also State v. Holdcroft, 137 Ohio St. 3d 526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 7 (a void sanction can be reviewed at any time); Westmoreland v. Valley Homes Mut. Hsg. Corp., 42 Ohio St. 2d 291, 294, 328 N.E.2d 406 (1975) (a court has inherent authority to vacate a void judgment), citing Staff Note to
{¶14} Appellant then asserts that a conviction for a non-cognizable offense is void. He fails to cite a case directly supporting this conclusion; however, we note the Eleventh District has held: “Although the trial court had subject matter jurisdiction over the case, because attempted felony murder is not a cognizable crime in Ohio, the trial court lacked authority to sentence appellant and to enter an order of conviction on Count 2. Therefore, his conviction of that offense is void.” State v. Bozek, 11th Dist. No. 2015-P-0018, 2016-Ohio-1305, ¶ 21 (where the defendant was
{¶15} As the state points out, the Ohio Supreme Court‘s Nolan case has no application to Appellant‘s case. As reviewed supra, Nolan dealt with a conviction of an attempt to commit a murder under
{¶16} That the attempted murder may have occurred contemporaneously with Appellant‘s commission of an aggravated robbery does not detract from the separate offense of attempted murder. See State v. Maple, 9th Dist. No. 28031, 2016-Ohio-5024, ¶ 5 (“Nolan‘s rationale does not apply because it is possible to attempt to purposely cause the death of another while committing a different felony.“) In other words, the state was not merely accusing Appellant of attempting to cause a death as a proximate result of the aggravated robbery. Rather, he was accused of and pled guilty to an attempt to purposely cause a death.
{¶17} In summary, Nolan merely held that an attempt to commit murder under division (B) of
Donofrio, J., concurs.
Waite, J., concurs.