Opinion
No. 108940
04-02-2020
STATE OF OHIO, Plaintiff-Appellee, v. THOMAS PONDEXTER, Defendant-Appellant.
Appearances: Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Gregory J. Ochocki, Assistant Prosecuting Attorney, for appellee. Thomas Pondexter, pro se.
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-03-434868-ZA
Appearances:
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Gregory J. Ochocki, Assistant Prosecuting Attorney, for appellee. Thomas Pondexter, pro se. PATRICIA ANN BLACKMON, J.:
{¶ 1} Defendant-appellant, Thomas Pondexter, appeals from the trial court's denial of his motion to vacate his 2003 robbery conviction. He assigns the following error for our review:
The trial court erred when it failed to vacate the October 3, 2003 sentencing entry for lack of subject-matter jurisdiction.
{¶ 2} Having reviewed the record and the pertinent law, we affirm the decision of the trial court.
{¶ 3} On March 11, 2003, Pondexter was indicted for aggravated robbery in violation of R.C. 2911.01 with one-year and three-year firearm specifications, notice of prior conviction, and repeat violent offender specifications. The matter was scheduled for trial on September 22, 2003. On that day, Pondexter appeared in court with counsel. According to the court's docket, the prosecuting attorney "advise[d the] court that because of a flaw in the grand jury procedure, the indictment is amended to read robbery R.C. 2911.02 F-2, with 1 and 3 year firearm specs. /repeat violent offender spec. and NPC." Pondexter's counsel raised no objection to the amendment of the indictment from aggravated robbery in violation of R.C. 2911.01 to robbery in violation of R.C. 2911.02.
{¶ 4} After a jury trial, Pondexter was convicted of robbery with one-year and three-year firearm specifications. He was sentenced to a total of ten years imprisonment with a five-year mandatory period of postrelease control. On direct appeal, this court noted that the indictment was amended to robbery prior to trial "because of an apparent flaw in the grand jury proceedings," but no error was assigned or recognized in relation to this amendment. See State v. Pondexter, 8th Dist. Cuyahoga No. 83576, 2004-Ohio-3869, ¶ 8, fn. 1. This court affirmed Pondexter's conviction, but remanded for imposition of a three-year term of postrelease control. Id.
{¶ 5} In April 2019, Pondexter filed a motion to vacate his conviction, arguing that it is void due to the amendment of the indictment. Citing the Ohio Supreme Court's 1980 decision in State v. Merriweather, 64 Ohio St.2d 57, 59, 413 N.E.2d 790 (1980), Pondexter further argued that robbery under R.C. 2911.02 is not a lesser included offense of aggravated robbery under R.C. 2911.01. The trial court denied the motion to vacate, and Pondexter now appeals.
Petition for Postconviction Relief
{¶ 6} Pondexter argues that the trial court erred in denying his motion to vacate. He maintains that his conviction is void due to the amendment of his indictment from aggravated robbery under R.C. 2911.01 to robbery under R.C. 2911.02.
{¶ 7} Under R.C. 2953.21, a petitioner may obtain postconviction relief "only if the court can find that there was such a denial or infringement of the rights of the prisoner as to render the judgment void or voidable under the Ohio Constitution or the United States Constitution." State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph four of the syllabus. A postconviction petition is a means to reach constitutional issues that would otherwise be impossible to reach because the evidence supporting those issues is not contained in the record. State v. Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d 67 (1994); State v. Smith, 8th Dist. Cuyahoga No. 93534, 2010-Ohio-1869, ¶ 11. It does not provide a petitioner a second opportunity to litigate his or her conviction. Id. at ¶ 12.
{¶ 8} The postconviction relief statute allows only a limited time to file a petition for postconviction relief and provides that the petition "shall be filed no later than three hundred sixty-five days after the date on which the trial transcript is filed in the court of appeals in the direct appeal of the judgment of conviction or adjudication" challenged by the petition. R.C. 2953.21(A)(2). This restriction is jurisdictional. R.C. 2953.23(A). However, R.C. 2953.23(A) permits a prisoner to file an untimely, successive petition for postconviction relief only where the motion meets the requirements of R.C. 2953.23(A)(1). State v. Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, 121 N.E.3d 351, ¶ 21-22; State v. Teitelbaum, 10th Dist. Franklin No. 19AP-137, 2019-Ohio-3175, ¶ 12. The required showing is as follows:
(1) Both of the following apply:R.C. 2953.23(A)(1).
(a) Either the petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for 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 petition asserts a claim based on that right.
(b) The petitioner shows 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 the petitioner was convicted or, if the claim challenges a sentence of death that, but for constitutional error at the sentencing hearing, no reasonable factfinder would have found the petitioner eligible for the death sentence.
{¶ 9} Res judicata is applicable to postconviction proceedings. State v. Szefcyk, 77 Ohio St.3d 93, 95, 671 N.E.2d 233 (1996). Under this doctrine, a defendant who was represented by counsel is barred from raising an issue in a petition for postconviction relief if the defendant raised or could have raised the issue at trial or on direct appeal. Id. at syllabus. However, if the court's judgment is void, then the "sentence may be reviewed at any time, on direct appeal or by collateral attack." State v. Reed, 8th Dist. Cuyahoga No. 108498, 2019-Ohio-4471, ¶ 18, quoting State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 30.
{¶ 10} Pursuant to R.C. 2953.21(C), a trial court may deny a petition for postconviction relief without holding an evidentiary hearing where the petition, the supporting affidavits, the documentary evidence, the files, and the records do not demonstrate that petitioner set forth sufficient operative facts to establish substantive grounds for relief. State v. Calhoun, 86 Ohio St.3d 279, 281, 1999-Ohio-102, 714 N.E.2d 905.
{¶ 11} Pondexter insists that the pretrial amendment of the indictment from aggravated robbery in violation of R.C. 2911.01 to robbery in violation of R.C. 2911.02 renders his conviction void because the Merriweather Court held that robbery under R.C. 2911.02 is not a lesser included offense of aggravated robbery under R.C. 2911.01. Id., 64 Ohio St.2d 57, 413 N.E.2d 790.
{¶ 12} However, "Merriweather construed 1972 Am.Sub.H.B. No. 511, 134 Ohio Laws, Part II, 1922." State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889, ¶ 33. Further, Evans held that "[r]obbery as defined in R.C. 2911.02(A)(2) is a lesser included offense of aggravated robbery as defined in R.C. 2911.01(A)(1)." Id., at paragraph one of the syllabus.
{¶ 13} Moreover, regarding the issue of the pretrial amendment of the indictment, Crim.R. 7(A) states in pertinent part:
A felony that may be punished by death or life imprisonment shall be prosecuted by indictment. All other felonies shall be prosecuted by indictment, except that after a defendant has been advised by the court of the nature of the charge against the defendant and of the defendant's right to indictment, the defendant may waive that right in writing and in open court.
{¶ 14} This court has previously held that a defendant waives his right to an indictment where he was in the courtroom, did not object to the state's amendment prior to trial, and indicated to the trial court that he understood the proceedings. State v. Baxter, 8th Dist. Cuyahoga No. 106187, 2018-Ohio-2237, ¶ 10-13, citing State v. Owens, 181 Ohio App.3d 725, 2009-Ohio-1508, 910 N.E.2d 1059, ¶ 69 (7th Dist.) Accord Middletown v. Blevins, 35 Ohio App.3d 65, 67, 519 N.E.2d 846 (12th Dist.1987) (where the state amends the charge to an offense which is neither the same offense in identity nor a lesser included offense, the defendant must be served with the new charging instrument "unless the defendant agrees to waive service of another charging instrument"); State v. Jackson, 78 Ohio App.3d 479, 483, 605 N.E.2d 426 (2d Dist.1992) ("an unconsented to amendment which changes the name or identity of the offense alleged" is forbidden by Crim.R. 7(D)).
{¶ 15} Similarly, under Crim.R. 12(C)(2), defenses and objections based on defects in the indictment must be raised before trial. Where a defendant fails to object to the form of the indictment before trial as required by Crim.R. 12(C), he waives all but plain error. State v. Frazier, 73 Ohio St.3d 323, 332, 652 N.E.2d 1000 (1995); State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, ¶ 26-28.
{¶ 16} Here, the record clearly demonstrates that the indictment was amended prior to trial, and Pondexter's counsel raised no objection to the amendment from aggravated robbery in violation of R.C. 2911.01 to robbery in violation of "R.C. 2911.02."
{¶ 17} In accordance with the foregoing, Pondexter's conviction is not void. Moreover, res judicata applies, since this argument could have been raised in Pondexter's direct appeal. Accord State v. Love, 11th Dist. Lake No. 2009-L-040, 2009-Ohio-5216, ¶ 33. The trial court did not err in denying Pondexter's motion to vacate his sentence.
{¶ 18} Judgment is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. /s/_________
PATRICIA ANN BLACKMON, JUDGE EILEEN A. GALLAGHER, J., CONCURS;
SEAN C. GALLAGHER, P.J., CONCURS
IN JUDGMENT ONLY WITH SEPARATE OPINION SEAN C. GALLAGHER, P.J., CONCURRING IN JUDGMENT ONLY:
{¶ 19} I concur in judgment only. Pondexter was convicted in 2003, and he waited until 2019 to file a motion to vacate what he deems to be a void conviction. At this stage of the proceedings, Pondexter only had two options to invoke the trial court's continuing jurisdiction: file a motion to vacate a void conviction, or file a successive or belated petition for postconviction relief.
{¶ 20} R.C. 2953.23, however, is inapplicable. That statutory section permits an offender to file a successive or belated petition for postconviction relief only if he was unavoidably prevented from discovering facts that would have affected the verdict at trial or the "United States Supreme Court recognized a new federal or state right that applies retroactively." Pondexter is not advancing such a claim, and therefore, R.C. 2953.23 and the related doctrine of res judicata can be disregarded.
{¶ 21} Pondexter contends that the trial court lacked subject-matter jurisdiction because of a defect in the amending of the indictment and a favorable conclusion would render his conviction void. To the contrary, it is well settled that arguments challenging the sufficiency or validity of an indictment are "nonjurisdictional in nature" and therefore should be raised in the direct appeal of a criminal conviction. State ex rel. Rackley v. Sloan, 150 Ohio St.3d 11, 2016-Ohio-3416, 78 N.E.3d 819, ¶ 9, quoting State ex rel. Raglin v. Brigano, 82 Ohio St.3d 410, 1998-Ohio-222, 696 N.E.2d 585. Any decision deeming the amended indictment to be invalid renders the conviction voidable, not void. Because Pondexter's argument does not implicate the voidness doctrine, the trial court did not err in denying the motion to vacate the void judgment — it lacked jurisdiction to offer Pondexter any relief based on the arguments advanced. For these reasons, I agree with the decision to affirm.