[Cite as State v. Echols, 2022-Ohio-1761.] COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 110756 v. :
DERRICK ECHOLS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: May 26, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-09-521604-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Callista Plemel, Assistant Prosecuting Attorney, for appellee.
Derrick Echols, pro se.
ANITA LASTER MAYS, P.J.:
Defendant-appellant Derrick Echols (“Echols”) appeals the trial
court’s denial of his “motion for a new trial to provide a final, appealable order disposing of all counts and specifications.” We affirm the trial court’s decision to
deny the motion.
I. Facts and Procedural History
In 2009, a grand jury indicted Echols on one count of aggravated
murder, one count of involuntary manslaughter, three counts of aggravated robbery,
and four counts of kidnapping, all with firearm specifications. In 2010, Echols
pleaded guilty to one count of involuntary manslaughter and one count of
aggravated robbery, both with three-year firearm specifications, and the rest of the
counts were nolled.
In 2013, Echols filed an appeal that was dismissed sua sponte for
failure to file a notice of timely appeal. That same year, Echols filed a motion for
leave to file a delayed appeal that was denied because there is no provision for
delayed appeals in postconviction relief cases, which are civil in nature. On July 8,
2021, Echols filed a motion requesting the trial court to provide a final appealable
order disposing of all counts and specifications pursuant to Crim.R. 32(C), and
R.C. 2505.02, with a de novo sentencing hearing. On July 16, 2021, the trial court
denied Echols’s motion. Judgment entry No. 117884379 (July 16, 2021).
Echols filed this appeal assigning one error for our review:
The trial court abused its discretion and denied appellant his Fourteenth Amendment due process right, and acted in a capricious and arbitrary manner, denying appellant’s motion for the trial court to provide him with a final appealable order disposing of all counts and specifications pursuant to Crim.R. 32(C) and R.C. 2505.02 with de novo sentencing hearing requested.
II. Res Judicata and Postconviction Petitions
A. Standard of Review
Crim.R. 32(C) addresses the judgment of conviction and provides
that it shall state the fact of conviction and the sentence. R.C. 2505.02 addresses
final appealable orders. Here, Echols seeks to use both to either vacate or correct
his sentence based on an alleged violation of a constitutional right. Despite its
caption, Echols’s motion for the trial court to provide him with a final appealable
order, “meets the definition of a motion for postconviction relief set forth in
R.C. 2953.21(A)(1).” State v. Osborn, 4th Dist. Adams No. 18CA1064, 2018-Ohio-
3866, ¶ 7. A trial court’s decision to deny a postconviction petition without a hearing
is reviewed under the abuse of discretion standard. State v. Crockett, 8th Dist.
Cuyahoga No. 103199, 2016-Ohio-220, ¶ 13, citing State v. Broom, 8th Dist.
Cuyahoga No. 96747, 2012-Ohio-587, ¶ 13; State v. Abdussatar, 8th Dist. Cuyahoga
No. 92439, 2009-Ohio-5232, ¶ 15. “The term ‘abuse of discretion’ connotes more
than an error of law or judgment; it implies that the court’s attitude is unreasonable,
arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450
N.E.2d 1140 (1983).
B. Law and Analysis [Cite as State v. Echols, 2022-Ohio-1761.] In Echols’s sole assignment error, he argues that the trial court
abused its discretion when it denied his postconviction motion for a final appealable
order. Echols’s claim is barred by res judicata. “‘[T]he doctrine of res judicata bars
claims that were raised or could have been raised on direct appeal.’” State v.
Johnson, 2019-Ohio-2332, 138 N.E.3d 560, ¶ 21 (8th Dist.), quoting State v.
Fountain, 8th Dist. Cuyahoga Nos. 92772 and 92874, 2010-Ohio-1202, ¶ 9. See also
State v. Pointer, 8th Dist. Cuyahoga No. 85195, 2005-Ohio-3587, ¶ 12 (“It is well
established that, pursuant to the doctrine of res judicata, a defendant cannot raise
an issue in a motion for post-conviction relief if he could have raised, or did raise,
the issue on direct appeal.”).
Echols first filed an appeal in 2013, but it was dismissed for failure to
timely file a notice of appeal. App.R. 4(A)(1) states, “Subject to the provisions of
App.R. 4(A)(3), a party who wishes to appeal from an order that is final upon its
entry shall file the notice of appeal required by App.R. 3 within 30 days of that
entry.” Echols could have raised this issue on direct appeal within 30 days of the
judgment, but instead he waited three years from final judgment of the trial court.
Echols then filed a postconviction motion with the trial court 11 years after his
conviction. “R.C. 2953.21 states that a motion for post-conviction relief must be filed
within 180 days after the expiration of the time for filing an appeal.” State v. Baker,
8th Dist. Cuyahoga No. 78453, 2001 Ohio App. LEXIS 1305, *4 (Mar. 22, 2001). However,
[a] petition for post-conviction relief can be considered after the deadline if the petitioner shows (1) he was unavoidably prevented from discovery of the facts upon which his petition is based or the United States Supreme Court has recognized a new right that applies retroactively to appellant; and (2) but for the constitutional error, appellant would not have pleaded guilty. R.C. 2953.23.
Id.
The record reveals that Echols has not demonstrated that he was
unavoidably prevented from discovery of the facts upon which his petition is based.
Additionally, Echols has not shown that the United States Supreme Court has
recognized a new right that applies retroactively to him. Echols instead argues that
the trial court erred by failing to dismiss or nolle the felony murder specifications
associated with his sentence, including the firearm specifications. Echols’s
argument is without merit.
Reviewing this case, Echols is arguing a sentencing error.
“‘[S]entences based on an error, including sentences in which a trial court fails to
impose a statutorily mandated term,’ are voidable, not void.” State v. Rogers, 8th
Dist. Cuyahoga No. 109805, 2021-Ohio-2262, ¶ 12, quoting State v. Henderson, 161
Ohio St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776, ¶ 1; see also State v. Harper, 160
Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, ¶ 4. “We conclude that sentences
based on an error, including sentences in which a trial court fails to impose a
statutorily mandated term, are voidable if the court imposing the sentence has jurisdiction over the case and the defendant.” Henderson, at ¶ 1. A void judgment is
rendered by a court without jurisdiction. Id. at ¶ 17. However, Echols is now barred
from raising this error by res judicata. Harper at ¶ 41.
“In Harper and Henderson, the Ohio Supreme Court made clear that
voidable sentences cannot be challenged via a postconviction proceeding.” Rogers
at ¶ 13. “If a sentencing error renders a defendant’s sentence voidable, the error
must be challenged on direct appeal.” Id., citing Henderson at ¶ 1, 27, 43; see also
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[Cite as State v. Echols, 2022-Ohio-1761.] COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 110756 v. :
DERRICK ECHOLS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: May 26, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-09-521604-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Callista Plemel, Assistant Prosecuting Attorney, for appellee.
Derrick Echols, pro se.
ANITA LASTER MAYS, P.J.:
Defendant-appellant Derrick Echols (“Echols”) appeals the trial
court’s denial of his “motion for a new trial to provide a final, appealable order disposing of all counts and specifications.” We affirm the trial court’s decision to
deny the motion.
I. Facts and Procedural History
In 2009, a grand jury indicted Echols on one count of aggravated
murder, one count of involuntary manslaughter, three counts of aggravated robbery,
and four counts of kidnapping, all with firearm specifications. In 2010, Echols
pleaded guilty to one count of involuntary manslaughter and one count of
aggravated robbery, both with three-year firearm specifications, and the rest of the
counts were nolled.
In 2013, Echols filed an appeal that was dismissed sua sponte for
failure to file a notice of timely appeal. That same year, Echols filed a motion for
leave to file a delayed appeal that was denied because there is no provision for
delayed appeals in postconviction relief cases, which are civil in nature. On July 8,
2021, Echols filed a motion requesting the trial court to provide a final appealable
order disposing of all counts and specifications pursuant to Crim.R. 32(C), and
R.C. 2505.02, with a de novo sentencing hearing. On July 16, 2021, the trial court
denied Echols’s motion. Judgment entry No. 117884379 (July 16, 2021).
Echols filed this appeal assigning one error for our review:
The trial court abused its discretion and denied appellant his Fourteenth Amendment due process right, and acted in a capricious and arbitrary manner, denying appellant’s motion for the trial court to provide him with a final appealable order disposing of all counts and specifications pursuant to Crim.R. 32(C) and R.C. 2505.02 with de novo sentencing hearing requested.
II. Res Judicata and Postconviction Petitions
A. Standard of Review
Crim.R. 32(C) addresses the judgment of conviction and provides
that it shall state the fact of conviction and the sentence. R.C. 2505.02 addresses
final appealable orders. Here, Echols seeks to use both to either vacate or correct
his sentence based on an alleged violation of a constitutional right. Despite its
caption, Echols’s motion for the trial court to provide him with a final appealable
order, “meets the definition of a motion for postconviction relief set forth in
R.C. 2953.21(A)(1).” State v. Osborn, 4th Dist. Adams No. 18CA1064, 2018-Ohio-
3866, ¶ 7. A trial court’s decision to deny a postconviction petition without a hearing
is reviewed under the abuse of discretion standard. State v. Crockett, 8th Dist.
Cuyahoga No. 103199, 2016-Ohio-220, ¶ 13, citing State v. Broom, 8th Dist.
Cuyahoga No. 96747, 2012-Ohio-587, ¶ 13; State v. Abdussatar, 8th Dist. Cuyahoga
No. 92439, 2009-Ohio-5232, ¶ 15. “The term ‘abuse of discretion’ connotes more
than an error of law or judgment; it implies that the court’s attitude is unreasonable,
arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450
N.E.2d 1140 (1983).
B. Law and Analysis [Cite as State v. Echols, 2022-Ohio-1761.] In Echols’s sole assignment error, he argues that the trial court
abused its discretion when it denied his postconviction motion for a final appealable
order. Echols’s claim is barred by res judicata. “‘[T]he doctrine of res judicata bars
claims that were raised or could have been raised on direct appeal.’” State v.
Johnson, 2019-Ohio-2332, 138 N.E.3d 560, ¶ 21 (8th Dist.), quoting State v.
Fountain, 8th Dist. Cuyahoga Nos. 92772 and 92874, 2010-Ohio-1202, ¶ 9. See also
State v. Pointer, 8th Dist. Cuyahoga No. 85195, 2005-Ohio-3587, ¶ 12 (“It is well
established that, pursuant to the doctrine of res judicata, a defendant cannot raise
an issue in a motion for post-conviction relief if he could have raised, or did raise,
the issue on direct appeal.”).
Echols first filed an appeal in 2013, but it was dismissed for failure to
timely file a notice of appeal. App.R. 4(A)(1) states, “Subject to the provisions of
App.R. 4(A)(3), a party who wishes to appeal from an order that is final upon its
entry shall file the notice of appeal required by App.R. 3 within 30 days of that
entry.” Echols could have raised this issue on direct appeal within 30 days of the
judgment, but instead he waited three years from final judgment of the trial court.
Echols then filed a postconviction motion with the trial court 11 years after his
conviction. “R.C. 2953.21 states that a motion for post-conviction relief must be filed
within 180 days after the expiration of the time for filing an appeal.” State v. Baker,
8th Dist. Cuyahoga No. 78453, 2001 Ohio App. LEXIS 1305, *4 (Mar. 22, 2001). However,
[a] petition for post-conviction relief can be considered after the deadline if the petitioner shows (1) he was unavoidably prevented from discovery of the facts upon which his petition is based or the United States Supreme Court has recognized a new right that applies retroactively to appellant; and (2) but for the constitutional error, appellant would not have pleaded guilty. R.C. 2953.23.
Id.
The record reveals that Echols has not demonstrated that he was
unavoidably prevented from discovery of the facts upon which his petition is based.
Additionally, Echols has not shown that the United States Supreme Court has
recognized a new right that applies retroactively to him. Echols instead argues that
the trial court erred by failing to dismiss or nolle the felony murder specifications
associated with his sentence, including the firearm specifications. Echols’s
argument is without merit.
Reviewing this case, Echols is arguing a sentencing error.
“‘[S]entences based on an error, including sentences in which a trial court fails to
impose a statutorily mandated term,’ are voidable, not void.” State v. Rogers, 8th
Dist. Cuyahoga No. 109805, 2021-Ohio-2262, ¶ 12, quoting State v. Henderson, 161
Ohio St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776, ¶ 1; see also State v. Harper, 160
Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, ¶ 4. “We conclude that sentences
based on an error, including sentences in which a trial court fails to impose a
statutorily mandated term, are voidable if the court imposing the sentence has jurisdiction over the case and the defendant.” Henderson, at ¶ 1. A void judgment is
rendered by a court without jurisdiction. Id. at ¶ 17. However, Echols is now barred
from raising this error by res judicata. Harper at ¶ 41.
“In Harper and Henderson, the Ohio Supreme Court made clear that
voidable sentences cannot be challenged via a postconviction proceeding.” Rogers
at ¶ 13. “If a sentencing error renders a defendant’s sentence voidable, the error
must be challenged on direct appeal.” Id., citing Henderson at ¶ 1, 27, 43; see also
Harper at ¶ 4-5, 43 (“cautioning ‘prosecuting attorneys, defense counsel, and pro se
defendants’ that they must challenge sentencing errors on direct appeal from the
judgment of conviction”). Rogers at id. Therefore, the trial court is without
jurisdiction to review Echols’s claimed sentencing error.
A sentence is void when a sentencing court lacks jurisdiction over the subject matter of the case or personal jurisdiction over the accused. When the sentencing court has jurisdiction to act, sentencing errors in the imposition of postrelease control render the sentence voidable, not void, and the sentence may be set aside if successfully challenged on direct appeal.
Harper at ¶ 42.
Thus, Echols cannot use a postconviction motion to challenge his
sentence because his sentence is voidable and should have been challenged on direct
appeal. Therefore, Echols’s 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.
_________________________________ ANITA LASTER MAYS, PRESIDING JUDGE
CORNELIUS J. O’SULLIVAN, JR., J., and JAMES A. BROGAN, J.,* CONCUR
*(Sitting by assignment: James A. Brogan, J., retired, of the Second District Court of Appeals.)