[Cite as State v. Lawrence, 2021-Ohio-2105.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO,
Plaintiff-Appellee, : No. 109951 v. :
HOWARD LAWRENCE, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: June 24, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-570740-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, Brandon A. Piteo, and Mary M. Frey, Assistant Prosecuting Attorneys, for appellee.
Friedman | Gilbert | Gerhardstein, and Mary Catherine Corrigan; Allison F. Hibbard, for appellant.
EMANUELLA D. GROVES, J.:
Defendant-appellant Howard Lawrence (“Lawrence”) appeals the
trial court’s denial of his motion to vacate a void judgment. For the reasons set
forth below, we affirm. Factual and Procedural History
In January 2013, emanating from a shooting incident that occurred
on December 15, 2012, a grand jury returned a multicount indictment against
Lawrence for two counts of aggravated murder with one- and three-year firearm
specifications; one count of aggravated robbery with one- and three-year firearm
specifications, notice of prior conviction, and repeat violent offender
specifications; one count of murder with one- and three-year firearm
specifications; three counts of felonious assault with one- and three-year firearm
specifications, notice of prior conviction, a repeat violent offender specification;
one count of kidnaping with one- and three-year firearm specifications, notice of
prior conviction and repeat violent offender specifications, and one count of
having weapons while under disability.
Lawrence pled not guilty at the arraignment and subsequently
waived his right to a jury trial relating to the charge for having weapons while
under disability, as well as to the notice of prior conviction and to the repeat
violent offender specifications connected to the other counts. The jury found
Lawrence guilty of aggravated robbery and felonious assault, along with the
attendant one- and three-year firearm specifications as charged in both counts.
Separately, the trial court found Lawrence guilty of having weapons while under
disability, the notice of prior conviction, and the repeat violent offender
specifications as charged. The jury found Lawrence not guilty of the remaining
counts. The trial court imposed a 21-year prison sentence. Both Lawrence
and the state appealed with the state’s appeal limited to a portion of the sentence
the trial court imposed. In our consolidated disposition, in State v. Lawrence,
8th Dist. Cuyahoga Nos. 100371 and 100387, 2014-Ohio-4797, we affirmed
Lawrence’s convictions but remanded the case to the trial court to impose
sentence on multiple firearm specifications and for correction of the record. Id.
at ¶ 17, 37.
In accordance with our remand, at Lawrence’s resentencing, the
trial court imposed the three-year firearm specification to be served consecutively
to the previously imposed 21-year prison sentence.
In April 2020, Lawrence filed a pro se motion styled “motion to
vacate void judgment.” In the motion, Lawrence argued he was entitled to relief
under R.C. 2945.73(B) because a valid probation holder did not exist, thus the
triple-count provision was applicable, and he was not brought to trial as required
by R.C. 2945.71 and 2945.72. Lawrence stated that in June 2013, he filed a motion
to dismiss for violation of speedy trial that divested the trial court of its basic
statutory jurisdiction to bring him to trial. The state filed its brief in opposition
to Lawrence’s motion to vacate a void judgment. The trial court denied
Lawrence’s motion.
Lawrence now appeals assigning the following sole error for review:
Assignment of Error The trial court erred by denying the defendant’s motion to vacate a void judgment. In his sole assignment of error, Lawrence argues the trial court
erred when it denied his motion to vacate a void judgment.
Preliminarily, we note, a motion to vacate a void judgment is
treated as a petition for postconviction relief under R.C. 2953.21(A)(1) because it
(1) is filed subsequent to a direct appeal, (2) claimed a denial of constitutional
rights, (3) seeks to render the judgment void, and (4) asks for a vacation of the
judgment and sentence. State v. Parker, 8th Dist. Cuyahoga No. 109804, 2021-
Ohio-509, ¶ 20, citing State v. Robinson, 8th Dist. Cuyahoga No. 109159, 2020-
Ohio-4470, ¶ 9, citing State v. Reynolds, 79 Ohio St.3d 158, 160-161, 679 N.E.2d
1131 (1997); see also State v. Meincke, 8th Dist. Cuyahoga No. 96407, 2011-Ohio-
6473, ¶ 8. Thus, for the purposes of this appeal, we construe Lawrence’s motion
to vacate a void judgment as a petition for postconviction relief.
R.C. 2953.21 through 2953.23 sets forth how a convicted defendant
may seek to have the trial court’s judgment or sentence vacated or set aside
pursuant to a petition for postconviction relief. A defendant’s petition for
postconviction relief is a collateral civil attack on his or her criminal conviction.
State v. Atahiya, 8th Dist. Cuyahoga No. 109726, 2021-Ohio-1488, ¶ 13, citing
State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 48.
The statute affords relief from judgment where the petitioner’s
rights in the proceedings that resulted in his conviction were denied to such an
extent the conviction is rendered void or voidable under the Ohio or United States
Constitutions. Id., citing R.C. 2953.21(A); State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph four of the syllabus. A postconviction petition,
however, does not provide a petitioner a second opportunity to litigate the
conviction. State v. Curry, 8th Dist. Cuyahoga No. 108088, 2019-Ohio-5338,
¶ 12, citing State v. Hessler, 10th Dist. Franklin No. 01AP-1011, 2002-Ohio-3321,
¶ 32.
The standard for appellate review of postconviction proceedings is
abuse of discretion. State v. Jackson, 8th Dist. Cuyahoga No. 108558, 2020-
Ohio-4914, ¶ 45, citing Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.
77, ¶ 58. 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. Id. The
term “‘abuse of discretion’ * * * implies that the court’s attitude is unreasonable,
arbitrary or unconscionable.” State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d
144 (1980); see also Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d
1140 (1983).
Lawrence’s claim in the motion to vacate a void judgment is
undergirded by the allegation that his right to a speedy trial was violated. As
such, we find his claim is barred by the doctrine of res judicata. 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 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. Straley, 159 Ohio St.3d 82, 2019-Ohio-5206, 147 N.E.3d 623, ¶ 35,
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[Cite as State v. Lawrence, 2021-Ohio-2105.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO,
Plaintiff-Appellee, : No. 109951 v. :
HOWARD LAWRENCE, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: June 24, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-570740-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, Brandon A. Piteo, and Mary M. Frey, Assistant Prosecuting Attorneys, for appellee.
Friedman | Gilbert | Gerhardstein, and Mary Catherine Corrigan; Allison F. Hibbard, for appellant.
EMANUELLA D. GROVES, J.:
Defendant-appellant Howard Lawrence (“Lawrence”) appeals the
trial court’s denial of his motion to vacate a void judgment. For the reasons set
forth below, we affirm. Factual and Procedural History
In January 2013, emanating from a shooting incident that occurred
on December 15, 2012, a grand jury returned a multicount indictment against
Lawrence for two counts of aggravated murder with one- and three-year firearm
specifications; one count of aggravated robbery with one- and three-year firearm
specifications, notice of prior conviction, and repeat violent offender
specifications; one count of murder with one- and three-year firearm
specifications; three counts of felonious assault with one- and three-year firearm
specifications, notice of prior conviction, a repeat violent offender specification;
one count of kidnaping with one- and three-year firearm specifications, notice of
prior conviction and repeat violent offender specifications, and one count of
having weapons while under disability.
Lawrence pled not guilty at the arraignment and subsequently
waived his right to a jury trial relating to the charge for having weapons while
under disability, as well as to the notice of prior conviction and to the repeat
violent offender specifications connected to the other counts. The jury found
Lawrence guilty of aggravated robbery and felonious assault, along with the
attendant one- and three-year firearm specifications as charged in both counts.
Separately, the trial court found Lawrence guilty of having weapons while under
disability, the notice of prior conviction, and the repeat violent offender
specifications as charged. The jury found Lawrence not guilty of the remaining
counts. The trial court imposed a 21-year prison sentence. Both Lawrence
and the state appealed with the state’s appeal limited to a portion of the sentence
the trial court imposed. In our consolidated disposition, in State v. Lawrence,
8th Dist. Cuyahoga Nos. 100371 and 100387, 2014-Ohio-4797, we affirmed
Lawrence’s convictions but remanded the case to the trial court to impose
sentence on multiple firearm specifications and for correction of the record. Id.
at ¶ 17, 37.
In accordance with our remand, at Lawrence’s resentencing, the
trial court imposed the three-year firearm specification to be served consecutively
to the previously imposed 21-year prison sentence.
In April 2020, Lawrence filed a pro se motion styled “motion to
vacate void judgment.” In the motion, Lawrence argued he was entitled to relief
under R.C. 2945.73(B) because a valid probation holder did not exist, thus the
triple-count provision was applicable, and he was not brought to trial as required
by R.C. 2945.71 and 2945.72. Lawrence stated that in June 2013, he filed a motion
to dismiss for violation of speedy trial that divested the trial court of its basic
statutory jurisdiction to bring him to trial. The state filed its brief in opposition
to Lawrence’s motion to vacate a void judgment. The trial court denied
Lawrence’s motion.
Lawrence now appeals assigning the following sole error for review:
Assignment of Error The trial court erred by denying the defendant’s motion to vacate a void judgment. In his sole assignment of error, Lawrence argues the trial court
erred when it denied his motion to vacate a void judgment.
Preliminarily, we note, a motion to vacate a void judgment is
treated as a petition for postconviction relief under R.C. 2953.21(A)(1) because it
(1) is filed subsequent to a direct appeal, (2) claimed a denial of constitutional
rights, (3) seeks to render the judgment void, and (4) asks for a vacation of the
judgment and sentence. State v. Parker, 8th Dist. Cuyahoga No. 109804, 2021-
Ohio-509, ¶ 20, citing State v. Robinson, 8th Dist. Cuyahoga No. 109159, 2020-
Ohio-4470, ¶ 9, citing State v. Reynolds, 79 Ohio St.3d 158, 160-161, 679 N.E.2d
1131 (1997); see also State v. Meincke, 8th Dist. Cuyahoga No. 96407, 2011-Ohio-
6473, ¶ 8. Thus, for the purposes of this appeal, we construe Lawrence’s motion
to vacate a void judgment as a petition for postconviction relief.
R.C. 2953.21 through 2953.23 sets forth how a convicted defendant
may seek to have the trial court’s judgment or sentence vacated or set aside
pursuant to a petition for postconviction relief. A defendant’s petition for
postconviction relief is a collateral civil attack on his or her criminal conviction.
State v. Atahiya, 8th Dist. Cuyahoga No. 109726, 2021-Ohio-1488, ¶ 13, citing
State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 48.
The statute affords relief from judgment where the petitioner’s
rights in the proceedings that resulted in his conviction were denied to such an
extent the conviction is rendered void or voidable under the Ohio or United States
Constitutions. Id., citing R.C. 2953.21(A); State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph four of the syllabus. A postconviction petition,
however, does not provide a petitioner a second opportunity to litigate the
conviction. State v. Curry, 8th Dist. Cuyahoga No. 108088, 2019-Ohio-5338,
¶ 12, citing State v. Hessler, 10th Dist. Franklin No. 01AP-1011, 2002-Ohio-3321,
¶ 32.
The standard for appellate review of postconviction proceedings is
abuse of discretion. State v. Jackson, 8th Dist. Cuyahoga No. 108558, 2020-
Ohio-4914, ¶ 45, citing Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.
77, ¶ 58. 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. Id. The
term “‘abuse of discretion’ * * * implies that the court’s attitude is unreasonable,
arbitrary or unconscionable.” State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d
144 (1980); see also Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d
1140 (1983).
Lawrence’s claim in the motion to vacate a void judgment is
undergirded by the allegation that his right to a speedy trial was violated. As
such, we find his claim is barred by the doctrine of res judicata. 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 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. Straley, 159 Ohio St.3d 82, 2019-Ohio-5206, 147 N.E.3d 623, ¶ 35,
quoting Perry at id., paragraph nine of the syllabus. The Ohio Supreme Court has
also held that the doctrine of res judicata bars a defendant from asserting in a
motion for postconviction relief any issue that could have been raised on direct
appeal. State v. Reynolds, 79 Ohio St.3d 158, 161, 679 N.E.2d 1131 (1997), citing
State v. Duling, 21 Ohio St.2d 13, 254 N.E.2d 670 (1970).
In this matter, on June 19, 2013, while represented by counsel,
Lawrence filed a pro se motion to dismiss for lack of a speedy trial. In the motion,
Lawrence argued that he was entitled to the triple-count provision for the days he
remained in jail on a probation violation. The state filed a brief in opposition and
argued that under either the triple-count provision or the one-for-one count,
Lawrence’s motion should be denied. The trial court found that the one-for-one
count applied and denied the motion. Thereafter, Lawrence proceeded to trial
where, as previously mentioned, he was convicted.
However, in his direct appeal, Lawrence abandoned the claimed
speedy trial violation. Because Lawrence could have raised this claim in his direct
appeal, but failed to do so, res judicata precludes him from raising his speedy trial
claim. Russell v. Mitchell, 84 Ohio St.3d 328, 1999-Ohio 489, 703 N.E.2d 1249,
citing State ex rel. Richard v. Seidner, 77 Ohio St.3d 68, 69, 671 N.E.2d 28 (1996).
Issues properly raised in a petition for postconviction relief are
only those that could not have been raised on direct appeal because the evidence
supporting such issues is outside the record. State v. Jordan, 8th Dist. Cuyahoga No. 109345, 2021-Ohio-701, ¶ 22, citing State v. Milanovich, 42 Ohio St.2d 46,
50, 325 N.E.2d 540 (1975). Thus, a trial court may dismiss a petition based on res
judicata if an issue was or should have been raised on direct appeal. Jordan at
id., citing State v. Dowell, 8th Dist. Cuyahoga No. 86232, 2006-Ohio-110, ¶ 10,
citing Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph seven of the
syllabus.
As a result, the trial court did not abuse its discretion when it denied
the petition for postconviction relief, albeit styled a motion to vacate a void
judgment.
Accordingly, we overrule the sole assignment of error.
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
Cuyahoga County 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.
______ EMANUELLA D. GROVES, JUDGE
LARRY A. JONES, SR., P.J., and KATHLEEN ANN KEOUGH, J., CONCUR