STATE OF OHIO, PLAINTIFF-APPELLEE vs. RICHARD SWANSON, DEFENDANT-APPELLANT
No. 106566
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
RELEASED AND JOURNALIZED: October 11, 2018
2018-Ohio-4111
BEFORE: Boyle, J., E.T. Gallagher, P.J., and Laster Mays, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-96-339267-ZA
Richard Swanson, pro se
Inmate No. 573484
Marion Correctional Institution
P.O. Box 57
Marion, Ohio 43301
ATTORNEYS FOR APPELLEE
Michael C. O‘Malley
Cuyahoga County Prosecutor
BY: Mary McGrath
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Richard Swanson, appeals the trial court‘s denial of his motion to correct a void judgment. He raises seven assignments of error for our review:
- The trial court erred by not giving the Defendant-Appellant a “Notification of a Right to Appeal After Entering a Guilty Plea” which fails
Crim.R. 32(B)(2) and (3). - Sentence in CR-96-339267 is declared a “void judgment” and doesn‘t compo[r]t with “mandatory provisions of law.”
- The sentence in CR-96-339267 is not consistent with the “mandatory provisions” in
2953.02 . - The sentence in CR-96-339267 fails the “mandatory provisions” in
2505.02(B)(2) . - Defendant-appellant‘s sentence in CR-96-339267 is in violation of
Ohio Constitution Article IV Section 3(B)(2) . - The case in CR-96-339267 violates the
U.S. Constitution 14th Amendment Section 1 due process rights. - The Defendant-Appellant wants this “appeal” heard under the doctrines of
2953.08(G)(2)(b) for such a sentence is “contrary to law.”
{¶2} Finding that the trial court lacked jurisdiction, we reverse the trial court‘s order.
I. Procedural History and Factual Background
{¶3} In August 1996, in Cuyahoga C.P. No. CR-96-339267, Swanson pleaded guilty to an amended count of aggravated robbery, a first-degree felony in violation of
{¶4} In June 1998, Swanson filed a motion to modify or reduce his sentence in Case No. CR-96-339267. The trial court denied Swanson‘s motion, finding that it was “premature” and stating that “defendant may refile the motion when he is returned to Cuyahoga County to begin his term of probation.”
{¶5} In August 1998, after Swanson completed his prison sentence for Cuyahoga C.P. Nos. CR-88-230707 and CR-96-335423, the trial court set Swanson‘s probation conditions for his five-year probation term for Case No. CR-96-339267. In September 1998, a capias was issued for Swanson at the request of his probation officer. In December 1998, Swanson appeared before the trial court who found Swanson violated his probation by “absconding from Harbor Light on September 9, 1998, and conviction of theft in Warrensville Heights.” As a result, the trial court revoked Swanson‘s probation and imposed its original sentence of 5 to 25 years of incarceration.
{¶7} Approximately 13 years later, on July 24, 2012, Swanson filed a motion to correct sentence. As part of his motion, Swanson argued that the trial court failed to advise him of his right to appeal pursuant to
{¶8} In October 2014,
Swanson filed an original action in the Marion County Court of Common Pleas based on alleged errors in his sentencing entries and claiming his release dates had been miscalculated in CR-96-339267, CR-88-230707, and CR-96-335423. The trial court dismissed his action finding he had failed to establish that his maximum sentence had expired. The Third District Court of Appeals affirmed on the basis of res judicata, and because the record supported the trial court‘s conclusion that Swanson failed to demonstrate that his maximum sentence had expired among other procedural grounds that supported dismissal of his habeas corpus petition.
Swanson v. Griffin, 8th Dist. Cuyahoga No. 103605, 2016-Ohio-3065, ¶ 6.
{¶9} In October 2015, Swanson sought “a writ of mandamus to compel [the trial court] to correct alleged plain errors in the sentencing journal entry filed in State v. Swanson, Cuyahoga C.P. No. CR-96-339267.” Griffin at ¶ 1. We denied Swanson‘s writ on May 18, 2016, awarding the respondent summary judgment because Swanson failed to “establish[] the requirements for mandamus relief.” Id. at ¶ 8.
{¶11} It is from this judgment that Swanson now appeals.
II. Law and Analysis
{¶12} This court has consistently maintained
“[a] motion that is not filed pursuant to a specific rule of criminal procedure ‘must be categorized by a court in order for the court to know the criteria by which the motion should be judged.’ Where a criminal defendant, subsequent to a direct appeal, files a motion seeking vacation or correction of his or her sentence on the basis that his or her constitutional rights have been violated, such a motion is a petition for postconviction relief as defined in
R.C. 2953.21 .”
State v. Marks, 8th Dist. Cuyahoga No. 99474, 2013-Ohio-3734, ¶ 3, quoting State v. Alexander, 8th Dist. Cuyahoga No. 95995, 2011-Ohio-1380; see also State v. Reynolds, 79 Ohio St.3d 158, 160-161, 679 N.E.2d 1131 (1997); State v. Kelly, 8th Dist. Cuyahoga No. 97673, 2012-Ohio-2930, ¶ 11; State v. Meincke, 8th Dist. Cuyahoga No. 96407, 2011-Ohio-6473, ¶ 8.
{¶14} A defendant, however, must file any motion to be considered pursuant to
{¶15}
{¶16} Here, we are bound to conclude the trial court was without jurisdiction to consider Swanson‘s petition for postconviction relief because the record shows that he cannot satisfy one of those threshold requirements.
{¶17} First, Swanson does not claim that he was unavoidably prevented from discovering facts upon which he relied in his petition. Further, he could not show that “no reasonable factfinder would have found him guilty but for constitutional error at trial” because he pleaded guilty. See State v. Rackley, 8th Dist. Cuyahoga No. 102962, 2015-Ohio-4504, ¶ 17 (“Rackley pleaded guilty, and thus,
{¶18} Even overlooking the procedural issues with Swanson‘s petition, his arguments still fail. He argues that the trial court failed to notify him of his appellate rights at his sentencing hearing in September 1996. Yet, Swanson filed an appeal in July 1999. Despite an order granting him an extension of time to file an appellate brief, Swanson failed to file one, and as a result, we dismissed his appeal. Because this issue could have been raised on direct appeal, it is barred by res judicata. See State v. Lozada, 8th Dist. Cuyahoga No. 81151, 2003-Ohio-1721, ¶ 12, citing Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (“Postconviction relief is not a vehicle for appealing claims which could have been raised on direct appeal of a conviction.“).
{¶19} Accordingly, we reverse the trial court‘s order. Upon remand, we instruct the trial court to vacate its order and dismiss Swanson‘s petition for lack of jurisdiction.
It is ordered that appellee recover from appellant the costs herein taxed.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
MARY J. BOYLE, JUDGE
EILEEN T. GALLAGHER, P.J., and
ANITA LASTER MAYS, J., CONCUR