STATE OF OHIO, PLAINTIFF-APPELLEE, v. DARRION A. STEWART, DEFENDANT-APPELLANT.
CASE NO. 13-21-05
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY
July 6, 2021
[Cite as State v. Stewart, 2021-Ohio-2294.]
Appeal from Seneca County Common Pleas Court Trial Court No. 07 CR 0154
Judgment Affirmed
APPEARANCES:
Gene P. Murray for Appellant
Derek W. DeVine for Appellee
{1} Defendant-appellant, Darrion A. Stewart (“Stewart“), appeals the January 25, 2021 judgment entry of the Seneca County Court of Common Pleas denying his motion to vacate his conviction. We affirm.
{2} In 2008, Stewart was convicted of 23 drug-related counts. State v. Stewart, 3d Dist. Seneca No. 13-08-18, 2009-Ohio-3411, ¶ 34, 36. The trial court sentenced Stewart on May 14, 2008 to an aggregate sentence of 36 years and 11 months in prison, and Stewart appealed the trial court‘s judgment entry of conviction.1 Stewart at ¶ 1; (Doc. Nos. 192, 199).2 In that direct appeal, we affirmed the judgment of the trial court. Stewart at ¶ 109.
{3} On December 29, 2020, Stewart filed a motion to vacate his conviction arguing that his conviction is void because “the State cannot produce a case numbered motion docketed file for the warrant * * * .” (Emphasis sic.) (Doc. No. 220). On January 14, 2021, the State filed a memorandum in opposition to Stewart‘s motion to vacate. (Doc. No. 221). On January 25, 2021, the trial court denied Stewart‘s motion to vacate after concluding that his motion is untimely and barred by the doctrine of res judicata. (Doc. No. 212).
Assignment of Error
The Trial Court Abused its Discretion by Dismissing and Not Even Allowing a Hearing on Defendant-Appellant‘s Motion to Vacate Verdicts and Sentencings, and With Motion to Dismiss, When the Defendant-Appellant Finally and Long After Trial, Through No Fault of His Own, Became Aware of the State‘s Application for a Search Warrant, with a State Affidavit in Support Thereof, and With the State Search Warrant Itself, in an Unnumbered (and Thus Secret) Sealed Filing Which Could Not be Accessed or Otherwise Found by the Defense, and From Which the State Obtained Alleged Evidence Upon Which The Entire Indictment Against the Defendant-Appellant Was Based, Thereby Violating the Defendant-Appellant‘s Fundamental and Substantial Rights Under the Search and Seizure Warrant Requirements of the Fourth Amendment to the Constitution of the United States, and also Violating the Defendant‘s Fundamental and Substantial Rights as Guaranteed by the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States.
{5} In his assignment of error, Stewart argues that the trial court erred by denying his motion to vacate without an evidentiary hearing. In particular, he argues that his conviction is void because the State failed to provide “to the defense as discovery for trial * * * the motion for [the] search warrant, the affidavit in support of the [search warrant], the receipt for [the] property itemization, and the search warrant itself.” (Appellant‘s Brief at 2).
{6} Because it raises a question of jurisdiction, we review de novo the denial of a motion to vacate a void judgment. State v. Megarry, 4th Dist. Adams No. 17CA1051, 2018-Ohio-4242, ¶ 9; State v. Bigelow, 6th Dist. Lucas No. L-17-1306, 2018-Ohio-3508, ¶ 12; State v. Brown, 11th Dist. Lake No. 2017-L-038, 2017-Ohio-7963, ¶ 8. See also State v. Miles, 3d Dist. Hancock No. 5-18-06, 2018-Ohio-3317, ¶ 8. “De novo review is independent, without deference to the lower court‘s decision.” State v. Hudson, 3d Dist. Marion No. 9-12-38, 2013-Ohio-647, ¶ 27.
Analysis
{7} “Ohio‘s Criminal Rules and statutes provide for the direct review of criminal judgments through appeal, and collateral attacks through postconviction petitions, habeas corpus, and motions to vacate.” State v. Love, 7th Dist. Mahoning No. 17 MA 0039, 2018-Ohio-1140, ¶ 17, quoting Lingo v. State, 138 Ohio St.3d 427, 2014-Ohio-1052, ¶ 44. Thus, “[t]he authority to vacate a void judgment is ‘an inherent power possessed by Ohio courts.‘” Id. at ¶ 18, quoting Patton v. Diemer, 35 Ohio St.3d 68 (1988), paragraph four of syllabus, and citing Lingo at ¶ 48.
{8} A judgment rendered by a court lacking subject-matter jurisdiction is void and issues of voidness can be raised at any time. Id. at ¶ 18-19; Miles at ¶ 8. “Furthermore, the doctrine of res judicata can be surmounted where a judgment is void for lack of subject matter jurisdiction.” Love at ¶ 19, citing Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, ¶ 17, State Wilson, 73 Ohio St.3d 40, 44-45 (1995), fn. 6, and State v. Perry, 10 Ohio St.2d 175, 178-179 (1967).
{10} A trial court may not entertain an untimely or successive post-conviction petition unless the petitioner initially demonstrates either (1) he was unavoidably prevented from discovering the facts necessary for the claim for relief, or (2) the United States Supreme Court recognized a new federal or state right that applies retroactively to persons in the petitioner‘s situation.
{11} “Absent jurisdiction to consider a petition for post-conviction relief, a trial court is not required to hold an evidentiary hearing.” State v. Wesson, 9th Dist. Summit No. 28412, 2018-Ohio-834, ¶ 23, citing State v. Price, 9th Dist. Wayne No. 03CA0046, 2004-Ohio-961, ¶ 10.
{12} ““[T]he question whether a court of common pleas possesses subject-matter jurisdiction to entertain an untimely petition for postconviction relief is a question of law, which appellate courts review de novo.“” State v. Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, ¶ 24, quoting State v. Kane, 10th Dist. Franklin No. 16AP-781, 2017-Ohio-7838, ¶ 9.
{13} Here, Stewart does not allege an issue which would render his conviction void. See State v. Jones, 10th Dist. Franklin No. 20AP-300, 2020-Ohio-5525, ¶ 14. Specifically, Stewart alleges that the State neglected to provide him with a second search warrant, search-warrant affidavit, and itemization of the property seized as a result of that search warrant, which was executed at 112½ East North Street in Fostoria, Ohio in 2006. Nevertheless, Stewart‘s argument regarding that search warrant did not deprive the trial court of subject matter jurisdiction to issue the conviction and sentence in his case. In other words, arguments challenging
{14} Because Stewart does not allege any error that would render his conviction void, the trial court properly denied Stewart‘s motion to vacate without an evidentiary hearing as untimely and as barred by the doctrine of res judicata. Indeed, Stewart‘s petition was filed well beyond the statutory window set forth in
{15} Consequently, Stewart‘s argument is barred by the doctrine of res judicata. “Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in
{16} Stewart‘s assignment of error is overruled.
{17} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW, J., concurs.
MILLER, J., concurs in Judgment Only.
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