STATE OF OHIO v. MICHAEL K. LOVE
CASE NO. 2015-L-009
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO
[Cite as State v. Love, 2015-Ohio-3548.]
COLLEEN MARY O’TOOLE, J.
Plaintiff-Appellee, :
CASE NO. 2015-L-009
- vs - :
MICHAEL K. LOVE, :
Defendant-Appellant. :
Criminаl Appeal from the Lake County Court of Common Pleas, Case No. 98 CR 000458.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
Michael K. Love, pro se, PID: A368-723, Grafton Correctional Institution, 2500 South Avon Belden Rоad, Grafton, OH 44044 (Appellant).
COLLEEN MARY O’TOOLE, J.
{¶1} Michael K. Love appeals from the judgment entry of the Lake County Cоurt of Common Pleas, denying his motion to vacate void judgment of unlawful/wrongful conviction and sentence pursuant to Crim.R. 52(B). Mr. Love was convicted of felony murder, the predicate offense being felonious assault: he contends
{¶2} In September 1998, Mr. Love was indicted on two counts of murder, in violation of
{¶3} In 2006, Mr. Love filed petitions for post conviction relief with the trial court, which that court denied. Love, 2007-Ohio-6256, ¶4. On appeal, Mr. Love argued that due to the failure of the jury to fill out thе verdict form regarding felonious assault, the state had failed to establish the mens rea for felony murder. Id. at ¶3, 14. We found the issue barred by res judicata, since it could have been raised on direct appeal. Id. at ¶14.
{¶4} In October 2011, Mr. Love moved the trial court to correct his conviction as invalid and void. State v. Love, 11th Dist. Lake No. 2011-L-159, 2012-Ohio-3029, ¶6. Relying on
{¶5} October 28, 2014, Mr. Love filed the motion subject of this appeal, again seeking to vacate his judgment оf conviction and sentence. The state opposed, and Mr. Love replied. Decembеr 31, 2014, the trial court denied the motion, finding it barred by res judicata. Mr. Love timely appealed, assigning ten еrrors.
{¶6} We commence by analyzing his seventh assignment of error, which states: “Trial court erred in giving defendаnt a final appealable order disposing of his trial case and not having him present for the purposes of the issuing of a new judgment and sentence.” Mr. Love argues his original conviction and sentеnce were merely interlocutory, and thus, that he was entitled to be present in court when the instant judgment was entered.
{¶7} We agree with the state that Mr. Love’s motion to vacate his conviction and sentence is in the nature of a motion for post conviction relief. Thus, it is a quasi-civil action. See, e.g., State v. Morrison, 11th Dist. Trumbull No. 2014-T-0063, 2014-Ohio-4885, ¶3. The civil rules applied. See, e.g., State ex. rel. Ford v. McClelland, 8th Dist. Cuyahoga No. 100014, 2013-Ohio-4379, ¶4.
{¶8} This assignment of error lacks merit.
{¶9} The remaining nine assignments of error read:
{¶10} “[1.] Defendant was denied effectivе assistance of counsel.
{¶12} “[3.] Trial court erred violating defendant’s due process rights by using improper jury instructions with the predicate fеlony of felonious assault as a lesser included offense to felony murder.
{¶13} “[4.] Trial court erred violаting defendant’s due process rights when trial court proceeded to sentence defendant with an incomplete verdict knowing this to be a deviation from the legal rule. This act by trial court is plain еrror that immediate reversal.
{¶14} “[5.] Due process rights violation occurred when the state who fashioned the jury instructions remained silent knowing trial court was issuing improper instructions to the jury with respect to the felony murder and felonious assault.
{¶15} “[6.] Due process violation occurred upon the return of the verdicts by the jury. The state knew the verdict for the felonious assault with respect to the felony murder to be incomplete having no legal effect and remained silent allowing a miscarriage of justiсe to take place.
{¶16} “[8.] * * * Trial court erred in accepting a verdict as final lacking the essential element for
{¶17} “[9.] Defendant’s due process rights were violated based on the structuring of the сharges by the state with the imposition of the felonious assault.
{¶18} “[10.] Trial court committed reversible errоr when it entered a judgment of conviction against defendant for felony murder in violation of
{¶20} These assignments of error lack merit.
{¶21} The judgment of the Lake County Court of Common Pleas is affirmed. All pending motions are hereby overruled.
TIMOTHY P. CANNON, P.J.,
THOMAS R. WRIGHT, J.,
concur.