[Cite as State v. Jennings, 2020-Ohio-4766.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2019-CA-84 : v. : Trial Court Case No. 2012-CR-845 : LEMARR JENNINGS : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
...........
OPINION
Rendered on the 2nd day of October, 2020.
JOHN M. LINTZ, Atty. Reg. No. 0097715, Assistant Prosecuting Attorney, Clark County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee
LEMARR JENNINGS, Inmate No. 678-848, North Central Correctional Complex, P.O. Box 1812, Marion, Ohio 43302 Defendant-Appellant, Pro Se
.............
WELBAUM, J. -2-
{¶ 1} Defendant-appellant, Lemarr Jennings, appeals pro se from the judgment of
the Clark County Court of Common Pleas dismissing his motion for relief from judgment.
For the reasons outlined below, the judgment of the trial court will be affirmed.
Facts and Course of Proceedings
{¶ 2} On January 22, 2013, Jennings pled guilty to one count of possessing
cocaine, one count of possessing heroin, and one count of having a weapon while under
disability. The trial court accepted Jennings’ guilty plea and sentenced him to a total,
aggregate term of 20 years in prison. The trial court also suspended Jennings’ driver’s
license for five years, ordered the forfeiture of certain property, and required Jennings to
pay a fine and court costs. Following an appeal, this court affirmed Jennings’ conviction
in State v. Jennings, 2d Dist. Clark No. 2013 CA 60, 2014-Ohio-2307.
{¶ 3} On November 5, 2019, five years after his direct appeal, Jennings filed a pro
se motion for relief from judgment. In the motion, Jennings claimed that his conviction
was void and should be vacated because: (1) at his plea hearing, he never specifically
stated on the record that he was entering a guilty plea; and (2) the grand jury foreman
failed to sign the true bill attached to his indictment. Construing Jennings’ motion as a
petition for post-conviction relief, the trial court issued a judgment on November 21, 2019,
dismissing the motion on the ground that the claims raised therein were barred by the
doctrine of res judicata. Jennings now appeals from that judgment, raising two
assignments of error for review.
First Assignment of Error -3-
{¶ 4} Under his first assignment of error, Jennings contends that the trial court
erred by dismissing his motion because his conviction was void as a result of his not
entering a guilty plea at his plea hearing. Specifically, Jennings claims that responding:
“Yes, sir,” to the trial court’s question: “Are you pleading guilty voluntarily?” was
insufficient to enter a guilty plea and warrants vacating his conviction. Upon review, we
find that Jennings’ argument fails for several reasons, which we have outlined below.
(1) Jennings’ motion is an untimely petition for post-conviction relief that the
trial court lacked jurisdiction to consider.
{¶ 5} As a preliminary matter, we note that the trial court properly construed
Jennings’ motion for relief from judgment as a petition for post-conviction relief. This is
because Jennings’ motion was filed subsequent to his direct appeal and sought to have
his conviction vacated based on a constitutional claim relating to the validity of his guilty
plea. See State v. Housley, 2d Dist. Miami No. 2019-CA-12, 2020-Ohio-1143, ¶ 15,
citing State v. Reynolds, 79 Ohio St.3d 158, 160, 679 N.E.2d 1131 (1997) (“When a
motion is filed subsequent to a direct appeal * * *, claims the denial of constitutional rights,
seeks to render the judgment of conviction void, and asks for vacation of the judgment
and sentence, the motion is properly construed as a petition for post[-]conviction relief.”).
{¶ 6} When, as in this case, a direct appeal from a conviction has been taken, a
petition for post-conviction relief must be filed no later than 365 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[.]” R.C. 2953.21(A)(2). A trial court lacks jurisdiction to
consider an untimely petition for post-conviction relief, unless the untimeliness is excused -4-
under R.C. 2953.23(A). State v. Current, 2d Dist. Champaign No. 2012-CA-33, 2013-
Ohio-1921, ¶ 16.
{¶ 7} “Pursuant to R.C. 2953.23(A)(1)(a), a defendant may not file an untimely or
successive petition for post-conviction relief unless (1) the defendant was unavoidably
prevented from discovering the facts upon which he or she relies to present the claim, or
(2) the United States Supreme Court recognizes a new federal or state right that applies
retroactively to his or her situation and the petition asserts a claim based on that right.”
State v. Baker, 2d Dist. Montgomery No. 27596, 2017-Ohio-8602, ¶ 13. “The petitioner
must also show by clear and convincing evidence that, if not for the constitutional error
from which he suffered, no reasonable factfinder would have found him guilty.” Id., citing
R.C. 2953.23(A)(1)(b).
{¶ 8} In this case, Jennings’ petition for post-conviction relief was filed over 5 years
after the trial transcript was filed as part of his direct appeal. At no point did Jennings
argue that the untimeliness of his petition was excused under R.C. 2953.23(A).
However, even if Jennings had made such an argument, it would have failed, because
the record indicates that Jennings was not unavoidably prevented from discovering the
facts underlying the claim concerning his guilty plea. The pertinent facts concerning that
claim were apparent from the record of the plea hearing. The claim concerning
Jennings’ guilty plea is also not based on any new federal or state right. Therefore, the
untimeliness of Jennings’ petition for post-conviction relief was not excused under R.C.
2953.23(A), which means that the trial court lacked jurisdiction to consider the petition.
(2) Jennings’ claim is barred by the doctrine of res judicata. -5-
{¶ 9} In addition to being untimely, Jennings’ claim concerning his guilty plea was
also barred by the doctrine of res judicata. “Res judicata bars the assertion of claims
against a valid, final judgment of conviction that have been raised or could have been
raised on appeal.” State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d
9, ¶ 59, citing State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine
of the syllabus. “ ‘When a petitioner seeks post[-]conviction relief on an issue that was
raised or could have been raised on direct appeal, the petition is properly denied by the
application of the doctrine of res judicata.’ ” State v. Dixon, 2d Dist. Montgomery No.
27991, 2019-Ohio-230, ¶ 17, quoting State v. Jennison, 5th Dist. Coshocton No. 2015-
CA-0003, 2015-Ohio-3204, ¶ 9, citing State v. Tucker, 8th Dist. Cuyahoga No. 84595,
2005-Ohio-109, ¶ 11. (Other citation omitted.)
{¶ 10} Here, Jennings’ claim concerning his alleged failure to enter a guilty plea
would have been apparent from the record of his plea hearing. Jennings, therefore,
could have raised the claim in the direct appeal from his conviction. Because he failed
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[Cite as State v. Jennings, 2020-Ohio-4766.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2019-CA-84 : v. : Trial Court Case No. 2012-CR-845 : LEMARR JENNINGS : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
...........
OPINION
Rendered on the 2nd day of October, 2020.
JOHN M. LINTZ, Atty. Reg. No. 0097715, Assistant Prosecuting Attorney, Clark County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee
LEMARR JENNINGS, Inmate No. 678-848, North Central Correctional Complex, P.O. Box 1812, Marion, Ohio 43302 Defendant-Appellant, Pro Se
.............
WELBAUM, J. -2-
{¶ 1} Defendant-appellant, Lemarr Jennings, appeals pro se from the judgment of
the Clark County Court of Common Pleas dismissing his motion for relief from judgment.
For the reasons outlined below, the judgment of the trial court will be affirmed.
Facts and Course of Proceedings
{¶ 2} On January 22, 2013, Jennings pled guilty to one count of possessing
cocaine, one count of possessing heroin, and one count of having a weapon while under
disability. The trial court accepted Jennings’ guilty plea and sentenced him to a total,
aggregate term of 20 years in prison. The trial court also suspended Jennings’ driver’s
license for five years, ordered the forfeiture of certain property, and required Jennings to
pay a fine and court costs. Following an appeal, this court affirmed Jennings’ conviction
in State v. Jennings, 2d Dist. Clark No. 2013 CA 60, 2014-Ohio-2307.
{¶ 3} On November 5, 2019, five years after his direct appeal, Jennings filed a pro
se motion for relief from judgment. In the motion, Jennings claimed that his conviction
was void and should be vacated because: (1) at his plea hearing, he never specifically
stated on the record that he was entering a guilty plea; and (2) the grand jury foreman
failed to sign the true bill attached to his indictment. Construing Jennings’ motion as a
petition for post-conviction relief, the trial court issued a judgment on November 21, 2019,
dismissing the motion on the ground that the claims raised therein were barred by the
doctrine of res judicata. Jennings now appeals from that judgment, raising two
assignments of error for review.
First Assignment of Error -3-
{¶ 4} Under his first assignment of error, Jennings contends that the trial court
erred by dismissing his motion because his conviction was void as a result of his not
entering a guilty plea at his plea hearing. Specifically, Jennings claims that responding:
“Yes, sir,” to the trial court’s question: “Are you pleading guilty voluntarily?” was
insufficient to enter a guilty plea and warrants vacating his conviction. Upon review, we
find that Jennings’ argument fails for several reasons, which we have outlined below.
(1) Jennings’ motion is an untimely petition for post-conviction relief that the
trial court lacked jurisdiction to consider.
{¶ 5} As a preliminary matter, we note that the trial court properly construed
Jennings’ motion for relief from judgment as a petition for post-conviction relief. This is
because Jennings’ motion was filed subsequent to his direct appeal and sought to have
his conviction vacated based on a constitutional claim relating to the validity of his guilty
plea. See State v. Housley, 2d Dist. Miami No. 2019-CA-12, 2020-Ohio-1143, ¶ 15,
citing State v. Reynolds, 79 Ohio St.3d 158, 160, 679 N.E.2d 1131 (1997) (“When a
motion is filed subsequent to a direct appeal * * *, claims the denial of constitutional rights,
seeks to render the judgment of conviction void, and asks for vacation of the judgment
and sentence, the motion is properly construed as a petition for post[-]conviction relief.”).
{¶ 6} When, as in this case, a direct appeal from a conviction has been taken, a
petition for post-conviction relief must be filed no later than 365 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[.]” R.C. 2953.21(A)(2). A trial court lacks jurisdiction to
consider an untimely petition for post-conviction relief, unless the untimeliness is excused -4-
under R.C. 2953.23(A). State v. Current, 2d Dist. Champaign No. 2012-CA-33, 2013-
Ohio-1921, ¶ 16.
{¶ 7} “Pursuant to R.C. 2953.23(A)(1)(a), a defendant may not file an untimely or
successive petition for post-conviction relief unless (1) the defendant was unavoidably
prevented from discovering the facts upon which he or she relies to present the claim, or
(2) the United States Supreme Court recognizes a new federal or state right that applies
retroactively to his or her situation and the petition asserts a claim based on that right.”
State v. Baker, 2d Dist. Montgomery No. 27596, 2017-Ohio-8602, ¶ 13. “The petitioner
must also show by clear and convincing evidence that, if not for the constitutional error
from which he suffered, no reasonable factfinder would have found him guilty.” Id., citing
R.C. 2953.23(A)(1)(b).
{¶ 8} In this case, Jennings’ petition for post-conviction relief was filed over 5 years
after the trial transcript was filed as part of his direct appeal. At no point did Jennings
argue that the untimeliness of his petition was excused under R.C. 2953.23(A).
However, even if Jennings had made such an argument, it would have failed, because
the record indicates that Jennings was not unavoidably prevented from discovering the
facts underlying the claim concerning his guilty plea. The pertinent facts concerning that
claim were apparent from the record of the plea hearing. The claim concerning
Jennings’ guilty plea is also not based on any new federal or state right. Therefore, the
untimeliness of Jennings’ petition for post-conviction relief was not excused under R.C.
2953.23(A), which means that the trial court lacked jurisdiction to consider the petition.
(2) Jennings’ claim is barred by the doctrine of res judicata. -5-
{¶ 9} In addition to being untimely, Jennings’ claim concerning his guilty plea was
also barred by the doctrine of res judicata. “Res judicata bars the assertion of claims
against a valid, final judgment of conviction that have been raised or could have been
raised on appeal.” State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d
9, ¶ 59, citing State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine
of the syllabus. “ ‘When a petitioner seeks post[-]conviction relief on an issue that was
raised or could have been raised on direct appeal, the petition is properly denied by the
application of the doctrine of res judicata.’ ” State v. Dixon, 2d Dist. Montgomery No.
27991, 2019-Ohio-230, ¶ 17, quoting State v. Jennison, 5th Dist. Coshocton No. 2015-
CA-0003, 2015-Ohio-3204, ¶ 9, citing State v. Tucker, 8th Dist. Cuyahoga No. 84595,
2005-Ohio-109, ¶ 11. (Other citation omitted.)
{¶ 10} Here, Jennings’ claim concerning his alleged failure to enter a guilty plea
would have been apparent from the record of his plea hearing. Jennings, therefore,
could have raised the claim in the direct appeal from his conviction. Because he failed
to do so, res judicata now bars Jennings from raising the claim five years later in his
petition for post-conviction relief.
(3) Jennings entered a guilty plea on the record.
{¶ 11} A review of the plea hearing transcript reveals that the trial court complied
with all the requirements under Crim.R. 11 for accepting a valid guilty plea. At the plea
hearing, the trial court specifically asked Jennings: “Are you pleading guilty voluntarily?”
to which Jennings responded, “Yes, sir.” Plea Hearing Tr. p. 6. Jennings argues that
his response was insufficient to enter a guilty plea because he never uttered the word -6-
“guilty.” However, this court can find no authority for the proposition that a defendant
must use any specific language when entering a guilty plea. Upon review, we find that
Jennings’ responses to the trial court’s questions at the plea hearing sufficiently indicated
that he was entering a guilty plea to one count of possessing cocaine, one count of
possessing heroin, and one count of having a weapon while under disability. This
conclusion is supported by the fact that Jennings signed a plea form the same day as the
plea hearing stating that he was entering a guilty plea to the aforementioned charges.
{¶ 12} For all the foregoing reasons, Jennings’ first assignment of error is
overruled.
Second Assignment of Error
{¶ 13} Under his second assignment of error, Jennings contends that the trial court
should have granted his motion for relief from judgment and vacated his conviction due
to a defect in his indictment. Specifically, Jennings claims that his indictment was
defective because the grand jury foreman failed to sign the true bill. Jennings believes
that such a defect rendered his conviction void. We disagree.
{¶ 14} Despite Jennings’ claim otherwise, the record indicates that the grand jury
foreman signed the true bill attached to Jennings’ indictment. See Indictment (Dec. 17,
2012). However, even if there were a defect in the indictment, it is well settled that “a
guilty plea waives the right to claim error rising from a defective indictment.” State v.
Boyle, 2d Dist. Greene No. 2018-CA-12, 2018-Ohio-3284, ¶ 8, citing State v. Barton, 108
Ohio St.3d 402, 2006-Ohio-1324, 844 N.E.3d 307, ¶ 73. Therefore, because Jennings
entered a guilty plea to the charges in question, he waived his right to challenge any -7-
defect in the indictment.
{¶ 15} Furthermore, “the question of whether an indictment is defective is a matter
that is only capable of being raised on direct appeal.” Id. at ¶ 9, citing State v. Lowery,
2d Dist. Montgomery No. 24198, 2011-Ohio-2827, ¶ 21. “This court has held that the
issue of the sufficiency of an indictment must be raised on direct appeal and cannot be
addressed in a collateral attack.” Id., citing State v. Howe, 2d Dist. Montgomery No.
23423, 2010-Ohio-1621, ¶ 20. (Other citation omitted.) Since Jennings failed to
challenge the sufficiency of the indictment during the trial court proceedings or on direct
appeal, the issue concerning the alleged defect in the indictment was barred by the
doctrine of res judicata. See id., citing Lowery at ¶ 21, citing State v. Tucker, 2d Dist.
Montgomery No. 23408, 2010-Ohio-2642, ¶ 6.
{¶ 16} For the foregoing reasons, Jennings’ second assignment of error is
Conclusion
{¶ 17} Having overruled both assignments of error raised by Jennings, the
judgment of the trial court is affirmed.
TUCKER, P.J. and HALL, J., concur.
Copies sent to:
John M. Lintz Lemarr Jennings Hon. Douglas M. Rastatter