State v. Little

S
[Cite as State v. Little, 2021-Ohio-1446.]


STATE OF OHIO                       )                     IN THE COURT OF APPEALS
                                    )ss:                  NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                    )

STATE OF OHIO                                             C.A. No.        20CA011662

         Appellee

         v.                                               APPEAL FROM JUDGMENT
                                                          ENTERED IN THE
TERRY LITTLE                                              COURT OF COMMON PLEAS
                                                          COUNTY OF LORAIN, OHIO
         Appellant                                        CASE No.   07CR074162

                                   DECISION AND JOURNAL ENTRY

Dated: April 26, 2021



         TEODOSIO, Judge.

         {¶1}     Appellant, Terry Little, appeals from the judgment of the Lorain County Court of

Common Pleas denying his motion to correct a void sentence. This Court affirms.

                                                     I.

         {¶2}     In a prior appeal, this Court set out the pertinent facts and procedural history of this

case as follows:

         In 2009, Little was convicted of aggravated murder and numerous additional
         offenses. His convictions stemmed from the death of Lewis Turner, who was shot
         and killed on July 30, 2007. The trial court imposed a total sentence of 30 years to
         life in prison. Little filed a direct appeal to this Court and his convictions were
         affirmed. State v. Little, 9th Dist. Lorain No. 10CA009758, 2011-Ohio-768
         [(“Little I”)].

         While his appeal was pending, Little filed a petition for post-conviction relief. The
         trial court issued a journal entry with findings of fact and conclusions of law
         denying the petition.

         Several years later, on August 11, 2017, Little filed a pro se motion for leave to file
         a motion for new trial in addition to a pro se motion for new trial based on newly
                                                  2


       discovered evidence. After reviewing the record and the applicable law, the trial
       court denied the motion for new trial.

State v. Little, 9th Dist. Lorain No. 17CA011210, 2018-Ohio-5267, ¶ 2-4 (“Little II”). Mr. Little

appealed the trial court’s denial of his motion for a new trial, and this Court affirmed.

Id. at ¶ 16.

{¶3}

   On July 17, 2020, Mr. Little filed a pro se “Motion to Correct Void Sentence;

Failure to Properly Impose Post-Release Control Pursuant to R.C. 2929.191” with the trial court,

arguing that the court had improperly imposed post-release control in this matter. The trial court

denied the motion in a journal entry filed on July 23, 2020. The court explained that while it

improperly advised Mr. Little of post-release control at his December 23, 2009, sentencing

hearing, the error was corrected when the court properly advised him of post-release control at his

January 6, 2010, resentencing hearing. Also on January 6, 2010, the court filed a journal entry

nunc pro tunc to record the correction to the judgment of conviction, in accordance with R.C.

2929.191.

       {¶4}    Mr. Little now appeals from the trial court’s judgment denying his motion to correct

a void sentence and raises two assignments of error for this Court’s review. We have consolidated

his assignments of error because they require the same analysis.

                                                 II.

                               ASSIGNMENT OF ERROR ONE

       TRIAL COURT ERRED IN FAILING TO TRACK THE STATUTORY
       LANGUAGE SET FORTH IN R.C. 2967.28(F)(4)(c) TO PROPERLY IMPOSE
       POST-RELEASE CONTROL.

                               ASSIGNMENT OF ERROR TWO

       [THE] TRIAL COURT * * * FAILED TO INCLUDE THE MAXIMUM TERM
       OF POST[-]RELEASE CONTROL IMPOSED IN CASE NUMBER 07CR074147
       IN THE SENTENCING JOURNAL ENTRY OF CASE NUMBER
       07CR074162[,] WHICH WOULD HAVE SUSTAINED FOR THE
                                                   3


       AGGREGATE TERM OF POST[-]RELEASE CONTROL[;] THEREFORE [IT]
       DID NOT COMPLY WITH CRIM.R.32(C).

       {¶5}    In his first and second assignments of error, Mr. Little argues that the trial court

erred in its imposition of post-release control and erred in denying his motion to correct a void

sentence. We disagree.

        {¶6}    At the outset, we must first consider the nature of Mr. Little’s motion to correct a

void sentence. “Courts may recast irregular motions 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. Pursuant to Former R.C. 2953.21(A)(1)(a):

       Any person who has been convicted of a criminal offense * * * and who claims that
       there was 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.

A vaguely titled motion may be treated as a petition for post-conviction relief under R.C.

2953.21(A)(1) when the motion was filed after a direct appeal, alleges a denial of constitutional

rights, seeks to render the judgment void or voidable, and requests that the judgment and sentence

be vacated. State v. Nichols, 9th Dist. Summit No. 29228, 2019-Ohio-3084, ¶ 8; State v. Reynolds,

79 Ohio St. 3d 158

, 160 (1997). Mr. Little’s motion to correct a void sentence meets these

requirements and may therefore be considered appropriately as a petition for post-conviction relief.

       {¶7}    Because Mr. Little filed a direct appeal from his convictions, and his case did not

involve a sentence of death, he was required to file his petition for post-conviction relief “no later

than three hundred sixty-five days after the date on which the trial transcript is filed in the court of
                                                   4


appeals in the direct appeal of the judgment of conviction * * *.” Former R.C. 2953.21(A)(2).1

The trial transcript was filed in Mr. Little’s direct appeal on August 6, 2010. Mr. Little did not file

his petition in the trial court, however, until July 17, 2020, almost a full decade past the statutory

deadline. His petition for post-conviction relief was therefore untimely. Apart from being

untimely, it was also successive, as Mr. Little previously filed a petition for post-conviction relief

in this case on July 29, 2010, during the pendency of his direct appeal. See Little II at ¶ 3.

        {¶8}    A trial court may not entertain untimely or successive petitions for post-conviction

relief unless the petitioner satisfies certain requirements. See R.C. 2953.23(A)(1). First, he must

show either that (1) he was “unavoidably prevented” from discovering the facts he relies on, or (2)

subsequent to the 365-day deadline, “the United States Supreme Court recognized a new federal

or state right that applies retroactively to persons in [his] situation, and the petition asserts a claim

based on that right.” R.C. 2953.23(A)(1)(a). Second, he must show “by clear and convincing

evidence that, but for constitutional error at trial, no reasonable factfinder would have found the

petitioner guilty of the offense of which he was convicted * * *.” R.C. 2953.23(A)(1)(b).

        {¶9}    Mr. Little has made no attempt to satisfy the requirements of R.C. 2953.23(A)(1).

“[A] petitioner’s failure to satisfy R.C. 2953.23(A) deprives a trial court of jurisdiction to

adjudicate the merits of an untimely or successive post[-]conviction petition.” State v. Apanovitch,

155 Ohio St. 3d 358

, 2018-Ohio-4744, ¶ 36. Consequently, the trial court lacked authority to

entertain Mr. Little’s untimely and successive petition, and properly denied it. See Nichols at ¶

13.


        1
         Although Mr. Little was convicted in December of 2009, he filed his petition on July 17,
2020, so the amended versions of the post-conviction relief statutes that became effective on April
6, 2017, apply in this case. See, e.g., State v. Morris, 9th Dist. Summit No. 29419, 2019-Ohio-
5404, ¶ 6, fn. 1.
                                                   5


       {¶10} Mr. Little’s claim that his sentence is void does not change this result. See State v.

Brown, 9th Dist. Summit No. 29667, 2020-Ohio-4671, ¶ 12. “A sentence is only void ‘when a

sentencing court lacks jurisdiction over the subject-matter of the case or personal jurisdiction over

the accused.’”

Id., quoting State v.

Harper, 

160 Ohio St. 3d 480

, 2020-Ohio-2913, ¶ 42. Mr.

Little’s argument is therefore properly characterized as one asserting that his sentence is voidable,

not void. See Brown at ¶ 12.

       {¶11} Even assuming arguendo that the trial court had authority to entertain Mr. Little’s

petition, his claims would nonetheless be precluded by the doctrine of res judicata. See Nichols at

¶ 14. Pursuant to the doctrine of res judicata:

       [A] final judgment of conviction bars a convicted defendant who was represented
       by counsel from raising and litigating in any proceeding except an appeal from that
       judgment, any defense or any claimed lack of due process that was raised or could
       have been raised by the defendant at the trial, which resulted in that judgment of
       conviction, or on an appeal from that judgment.

State v. Perry, 

10 Ohio St. 2d 175

(1967), paragraph nine of the syllabus. Mr. Little’s argument

that the trial court failed to properly impose post-release control should have been made in his

direct appeal and is now barred by res judicata. See Harper at ¶ 43 (“[A]ny claim that the trial

court has failed to properly impose post[-]release control in the sentence must be brought on appeal

from the judgment of conviction or the sentence will be subject to res judicata.”).

       {¶12} For the above reasons, Mr. Little’s first and second assignments of error are both

overruled.

                                                  III.

       {¶13} Mr. Little’s first and second assignments of error are overruled. The judgment of

the Lorain Count Court of Common Pleas is affirmed.

                                                                                Judgment affirmed.
                                                 6




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately 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.




                                                     THOMAS A. TEODOSIO
                                                     FOR THE COURT



CARR, P. J.
SUTTON, J.
CONCUR.


APPEARANCES:

TERRY LITTLE, pro se, Appellant.

J. D. TOMLINSON, Prosecuting Attorney, and BRIAN P. MURPHY, Assistant Prosecuting
Attorney, for Appellee.

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