STATE OF OHIO v. ANTHONY MAURICE WALKER
C.A. No. 29151
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
February 20, 2019
[Cite as State v. Walker, 2019-Ohio-605.]
COUNTY OF SUMMIT APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 1990-05-0801
Dated: February 20, 2019
CALLAHAN, Presiding Judge.
{1} Appellant, Anthony Maurice Walker, appeals an order that denied his “Motion for Relief from: ‘Dormant Judgment.‘” This Court affirms.
I.
{2} In 1990, Mr. Walker pleaded guilty to aggravated murder with a death penalty specification, rape, and aggravated burglary. The trial court sentenced him to life in prison with parole eligibility after 30 years for the aggravated murder conviction and to sentences of 10-25 years on each of the other convictions. Mr. Walker did not file a direct appeal. On May 24, 2017, Mr. Walker filed a “Motion to Arrest Judgment, Pursuant to
{3} The trial court denied his motions related to sentencing, and Mr. Walker apрealed. This Court noted that the trial court had not yet resolved his “Motion for Relief from: ‘Dormant Judgment‘” and dismissed Mr. Walker‘s appeal to the extent that hе attempted to argue the merits of that motion. State v. Walker, 9th Dist. Summit No. 28836, 2018-Ohio-1146, ¶ 6-8. This Court concluded that Mr. Walker‘s arguments related to his sentence were barred by res judicata because he failed to challenge his sentence by pursuing a direct appeal. Id. at ¶ 15.
{4} On April 16, 2018, the trial court denied Mr. Walker‘s two pending motions: the “Motion to Arrest Judgment” and the “Motion for Relief from: ‘Dormant Judgment.‘” Mr. Walker filed this appeal.1
II.
ASSIGNMENT OF ERROR NO. 1
WHERE A SENTENCING JOURNAL ENTRY IMPOSES DISTINCTLY CONFLICTED SENTENCE[S] FOR THE SAME OFFENSE, DUE PROCESS IS OFFENDED; THE SENTENCE IS ‘DECLARED VOID’ BY OPERATION OF LAW; AND IT MUST BE VACATED AS A MATTER OF LAW THEREFORE.
ASSIGNMENT OF ERROR NO. 2
WHERE A JUDGMENT HAS NOT BEEN EXECUTED WITHIN THE TIME LIMITATION PRESCRIBED IN: O.R.C. SECTION 2325.15, I.E., ‘WITHIN FIVE YEARS,’ SUCH JUDGMENT (WITH RESPECT TO THE CORRELATIVE COURT COSTS, FINES, AND FEES) IS A ‘DORMANT JUDGMENT,’ FOR WANT OF EXECUTION AND ENFORCEABILITY, AND MAY NOT BE REVIVED A[B]SENT A SHOW CAUSE HEARING PURSUANT TO THE PROVISIONS OF STATE V. MAGRUDER, 2008 OHIO APP. LEXIS 1827[.]
{6} Mr. Walker‘s second assignment of error argues that because his sentence is vоid for the reasons mentioned in his first assignment of error, it follows that the judgment for costs of his prosecution is dormant.
{7} This Court must first consider the nature of the motion аt issue in this appeal.
Any person who has been convicted of a criminal offense or adjudicated a delinquent child and who claims that there wаs such a denial or infringement of the person‘s rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States * * * may file a petition in the court that imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief.
Faced with an irregular motion, this Court may construe the motion “into whatever category necessary to identify and establish the criteria by which the motion should be judged.” State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, ¶ 12. A petition for postconviction relief can be
{8}
(a) Either the petitiоner shows that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim fоr relief, or, subsequent to the period prescribed in division (A)(2) of section 2953.21 of the Revised Code or to the filing of an earlier petition, the United States Supreme Court recognized a new federal or state right that applies retroactively to persons in the petitioner‘s situation, and the petitiоn asserts a claim based on that right [and]
(b) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasоnable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted or, if the claim challenges a sеntence of death that, but for constitutional error at the sentencing hearing, no reasonable factfinder would have found the petitioner eligiblе for the death sentence.
{9} Mr. Walker was sentenced in 1990—five years before the amendment of Ohio‘s postconviction statute. Compare State v. Swihart, 9th Dist. Medina No. 06CA0091-M, 2007-Ohio-763, ¶ 6. Consequently, Mr. Walker was permitted to file a petition for postconviction relief within one year of the effective date of the amendment, or by September 21, 1996. See 1995 Am.Sub.S.B. No. 4, Section 3; Swihart at ¶ 6. His “Motion for Relief from: ‘Dormant Judgment‘” was filed almost twenty-one years after that date and was “clearly untimely.” See Swihart at ¶ 7. His motion did not explain why he was unavoidably prevented from discovering the facts upon which it was based, and it did not identify a retroactive right that has been rеcognized by the United States Supreme Court. See Morales at ¶ 8. Accordingly, the trial court did not err by denying Mr. Walker‘s “Motion for Relief from: ‘Dormant Judgment.‘”
{10} Mr. Walker‘s second assignment of error is overruled.
III.
{11} Mr. Walker‘s assignments of errоr are overruled. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
Immеdiately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
LYNNE S. CALLAHAN
FOR THE COURT
CARR, J.
HENSAL, J.
CONCUR.
APPEARANCES:
ANTHONY M. WALKER, pro se, Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant Prosecuting Attorney, for Appellee.