State v. Andrews

2022 Ohio 4209

Opinion

[Cite as State v. Andrews, 2022-Ohio-4209.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 111455 v. :

CE’MATIZEA ANDREWS, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: November 23, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-632567-B

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Frank Romeo Zeleznikar, Assistant Prosecuting Attorney, for appellee.

Ce’Matizea Andrews, pro se.

CORNELIUS J. O’SULLIVAN, JR., J.:

Defendant-appellant Ce’Matizea Andrews, pro se, appeals the trial

court’s February 17, 2022 judgment denying his motion for resentencing. After a

careful review of the facts and pertinent law, we affirm the trial court’s judgment.

Factual and Procedural History In October 2018, appellant and six co-defendants were charged in a

multi-count indictment. Appellant was charged with the following 13 crimes: one

count of aggravated murder (Count 1), one count of murder (Count 2), four counts

of attempted murder (Counts 3-6), one count of discharge of a firearm on or near

prohibited premises (Count 7), four counts of felonious assault (Counts 8-11), one

count of improperly handling firearms in a motor vehicle (Count 12), and one count

of having weapons while under disability (Count 14). Many of the counts included

one-, three-, and five-year firearm specifications.

The facts giving rise to the charges were set forth in appellant’s direct

appeal as follows:

The charges arose out of a shootout that occurred in the area of Lee Road and Harvard Avenue in Cleveland on June 20, 2018, resulting in the death of a nine-year-old girl, S.N. S.N. was sitting in the backseat of her mother’s vehicle, waiting for her mother to retrieve her brother from a nearby boxing club. [Appellant] initiated the shootout, firing a gun out of the window of a moving vehicle at a group of males with whom [appellant] had a verbal altercation earlier that day. Although no one was struck by [appellant’s] gunfire, when members of the group returned fire on [appellant], a bullet struck S.N. in the head, killing her.

State v. Andrews, 8th Dist. Cuyahoga No. 110047, 2021-Ohio-1719, ¶ 3.

After negotiations with the state, appellant pled guilty to an amended

Count 1, involuntary manslaughter in violation of R.C. 2903.04(A), a first-degree

felony, with three-and five-year firearm specifications and amended Count 8,

attempted felonious assault in violation of R.C. 2923.02 and 2903.11, a third-degree

felony. The remaining counts against appellant were dismissed. Amended Count 1

related to the death of S.N., the nine-year old victim. Amended Count 8 related to the attempted felonious assault of three males at whom appellant had fired. As part

of the plea agreement, the parties agreed to a jointly recommended sentence of

18 to 22 years and that appellant would not be subject to judicial release.

The trial court sentenced appellant to an aggregate prison term of

22 years, which consisted of 19 years on amended Count 1 (eight years on the two

firearm specifications to be served prior to and consecutive to 11 years on the

underlying offense) and a consecutive 36-month sentence on amended Count 8.

Appellant filed a direct appeal, challenging his sentence. The

transcripts were filed with this court on November 30, 2020. This court affirmed

appellant’s sentence. See Andrews, 8th Dist. Cuyahoga No. 110047, 2021-Ohio-

1719, at ¶ 1, 21.

On December 22, 2021, appellant, pro se, filed a motion for

resentencing in the trial court. The trial court treated the motion as a petition for

postconviction relief and denied it without a hearing because it was not compliant

with R.C. 2953.23 and did not raise substantive grounds for relief. In this appeal,

appellant raises the following assignment of error for our review: “A trial court

commits error when it fails to consider that Defendant-Appellant’s ‘Defendant’s pro

se Motion for Resentencing’ is different and separate from a postconviction relief

proceeding where the trial court should be aware of this filing.”

Law and Analysis

Motion for Resentencing Properly Treated as Petition for Postconviction Relief In his assignment of error, appellant contends that the trial court erred

in treating his motion as a petition for postconviction relief. We disagree.

It is well established that “‘[c]ourts may recast irregular motions into

whatever category necessary to identify and establish the criteria by which the

motion should be judged.’” State v. Caldwell, 2d Dist. Montgomery No. 24333,

2012-Ohio-1091, ¶ 3, quoting State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545,

882 N.E.2d 431, ¶ 12, citing State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, 773

N.E.2d 522, ¶ 10. “Where a criminal defendant, subsequent to his or her 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. Reynolds, 79

Ohio St.3d 158, 679 N.E.2d 1131 (1997), syllabus.

R.C. 2953.21 states, in pertinent part, that:

[a]ny 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. * * *.

R.C. 2953.21(A)(1)(a).

In Reynolds, the court applied R.C. 2953.21(A)(1) to a “Motion to

Correct or Vacate Sentence” in order to determine whether the motion qualified as

a petition for postconviction relief. The court concluded that the motion was a

petition for postconviction relief despite its styling, because it: “(1) [was] filed subsequent to Reynolds’s direct appeal, (2) claimed a denial of constitutional rights,

(3) sought to render the judgment void, and (4) asked for vacation of the judgment

and sentence.” Id. at 160.

This court has consistently used the analysis set forth in Reynolds

when determining whether an irregular motion is properly construed as a petition

for postconviction relief. See State v. Jones, 8th Dist. Cuyahoga No. 110855, 2022-

Ohio-1674, ¶ 8; State v. Rackley, 8th Dist. Cuyahoga No. 102962, 2015-Ohio-4504,

¶ 9; State v. Jones, 8th Dist. Cuyahoga No. 99391, 2013-Ohio-3434, ¶ 8; and State

v. Hicks, 8th Dist. Cuyahoga No. 99119, 2013-Ohio-1904, ¶ 7.

In this case, appellant’s “motion to resentence”: (1) was filed after he

had already filed a direct appeal, (2) claimed a denial of his constitutional right to

effective assistance of counsel, (3) sought to render the trial court’s judgment

voidable, and (4) asked for the court to vacate his conviction and sentence.

Therefore, we conclude that appellant’s motion fell under the definition of a

petition for postconviction relief as found in R.C. 2953.21(A)(1)(a). Accordingly,

the trial court correctly construed the motion as a petition for postconviction relief.

Appellant cites to several cases in support of his position that his

motion was not a petition for postconviction relief.1 Those cases are distinguishable

from this case, as they all concern the vacation of sentences because of errors in the

imposition of postrelease control. Moreover, the relevance of those cases is moot

1 The cases are: State v. Scott, 6th Dist. Erie No. E-09-048, 2010-Ohio-297; State v. Holcomb, 184 Ohio App.3d 577, 2009-Ohio-3187, 921 N.E.2d 1077 (9th Dist.); and State v. Wheeler, 9th Dist. Summit No. 24488, 2009-Ohio-3557. in light of the Ohio Supreme Court’s decision in State v. Harper, 160 Ohio St.3d

480, 2020-Ohio-2913, 159 N.E.3d 248, which held that when a sentencing court

has jurisdiction over the subject matter of the case or personal jurisdiction over the

defendant, errors in the imposition of postrelease control renders the sentence

voidable, not void, and the sentence may be set aside if successfully challenged on

direct appeal. Thus, appellant’s reliance on those cases is misplaced.

Petition Properly Denied as Untimely and Barred Under the Doctrine of Res Judicata

The trial court properly denied the petition as noncompliant with

R.C. 2953.23 and barred under the doctrine of res judicata.

A petition for postconviction relief is a collateral civil attack on a

criminal judgment, not an appeal of the judgment. State v. Bell, 8th Dist. Cuyahoga

No. 105000, 2017-Ohio-7168, ¶ 10. Postconviction relief is not a constitutional

right; it is a narrow remedy that gives the petitioner no more rights than those

granted by statute. State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905

(1999). It is a means to resolve constitutional claims that cannot be addressed on

direct appeal because the evidence supporting the claims is outside the record.

State v. Milanovich, 42 Ohio St.2d 46, 325 N.E.2d 540 (1975).

A criminal defendant seeking to challenge his or her conviction

through a petition for postconviction relief is not automatically entitled to an

evidentiary hearing. Calhoun at 282, citing State v. Cole, 2 Ohio St.3d 112, 443

N.E.2d 169 (1982). Before granting an evidentiary hearing on the petition, the trial court must determine whether there are substantive grounds for relief, i.e., whether

there are grounds to believe there was such a denial or infringement of the rights of

the petitioner so as to render the judgment void or voidable under the Ohio or

United States Constitutions. Calhoun at 283. In determining whether there are

substantive grounds for relief, the court must consider the petition, the supporting

affidavits, and the documentary evidence, as well as all the files and records

pertaining to the proceedings. R.C. 2953.21(D).

A trial court’s decision granting or denying a postconviction petition

filed pursuant to R.C. 2953.21 should be upheld absent an abuse of discretion. State

v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58. The trial

court does not abuse its discretion in dismissing a petition without a hearing if

(1) the petitioner fails to set out sufficient operative facts to establish substantive

grounds for relief, or (2) the operation of res judicata prohibits the claims made in

the petition. State v. Abdussatar, 8th Dist. Cuyahoga No. 92439, 2009-Ohio-5232,

¶ 15.

R.C. 2953.21(A)(2) provides that a petition for postconviction relief

must 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 * * *.” The transcript was filed in this court in appellant’s

direct appeal on November 30, 2020. Appellant filed his petition on December 22,

2021; therefore, appellant’s petition was untimely. R.C. 2953.23(A)(1) authorizes a trial court to address the merits of an

untimely filed petition for postconviction relief only if both of the following apply:

(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.

R.C. 2953.23(A)(1)(a) and (b).

Appellant is unable to satisfy either requirement. He was not

unavoidably prevented from discovering facts, no new right retroactively applies to

his case, and he has not demonstrated by clear and convincing evidence that, but

for a constitutional error, no reasonable factfinder would have found him guilty.

Therefore, his petition was untimely, not subject to exception, and the trial court

properly dismissed it without a hearing.

Moreover, even if his petition were timely, the doctrine of res judicata

bars appellant from raising his claim of ineffective assistance of counsel. 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 any proceeding except an appeal of 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, 226 N.E.2d 104 (1967), paragraph nine of the

syllabus.

In sum, res judicata bars the further litigation of issues that were or

could have been raised previously in a direct appeal. State v. Leek, 8th Dist.

Cuyahoga No. 74338, 2000 Ohio App. LEXIS 2909 (June 21, 2000), citing Perry

at id. The evidence supporting appellant’s ineffective assistance of counsel claim is

contained within the record and, thus, any ineffective assistance of counsel claim

should have been brought on direct appeal. Because appellant did not do so, he is

now precluded by res judicata from raising the issue. Accordingly, the trial court

did not abuse its discretion in denying appellant’s ineffective assistance of counsel

claim as untimely filed and barred by res judicata.

The sole assignment of error is overruled.

Judgment 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. ______________________________ CORNELIUS J. O’SULLIVAN, JR., JUDGE

FRANK DANIEL CELEBREZZE, III, P.J., and EILEEN A. GALLAGHER, J., CONCUR