[Cite as State v. Rogers, 2021-Ohio-2575.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-200236 TRIAL NO. B-9906905 Plaintiff-Appellee, :
vs. : O P I N I O N.
KEVIN ROGERS, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Appeal Dismissed
Date of Judgment Entry on Appeal: July 28, 2021
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Kevin Rogers, pro se. OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Presiding Judge.
{¶1} Defendant-appellant Kevin Rogers appeals the Hamilton County Common Pleas Court’s judgment overruling his 2020 “Motion for Relief from
Judgment.” Because we lack jurisdiction to review that judgment, we dismiss the
appeal.
{¶2} Rogers was convicted in 2000 of murder, felonious assault, and aggravated robbery. He unsuccessfully challenged his convictions on direct appeal
and in postconviction motions filed with the common pleas court in 2o17, 2018, and
2020. State v. Rogers, 1st Dist. Hamilton No. C-000299, 2000 WL 1886627 (Dec.
29, 2000); State v. Rogers, 1st Dist. Hamilton No. C-170599 (Dec. 19, 2018); State v.
Rogers, 1st Dist. Hamilton No. C-190051 (Mar. 31, 2020).
{¶3} In his 2020 “Motion for Relief from Judgment,” Rogers sought relief from his convictions on the ground that he had been denied the effective assistance
of counsel in his direct appeal. He asserted that his appellate counsel had failed to
meet with him or to challenge on appeal the trial court’s jurisdiction, the legality of
his arrest, defects in his indictment, and trial counsel’s ineffectiveness in
investigating and presenting his defense at trial and in failing to pursue
postconviction relief.
{¶4} In this appeal, Rogers presents three assignments of error that may fairly be read together to challenge the denial of that motion. We conclude that the
common pleas court had no jurisdiction to entertain the motion, and that this court
has no jurisdiction to entertain this appeal.
No Common Pleas Court Jurisdiction {¶5} Rogers failed to designate in his motion a statute or rule under which the relief sought may be granted. This left the common pleas court to “recast” the
motion “into whatever category necessary to identify and establish the criteria by
2 OHIO FIRST DISTRICT COURT OF APPEALS
which the motion should be judged.” See State v. Schlee, 117 Ohio St.3d 153, 2008-
Ohio-545, 882 N.E.2d 431, ¶ 12 and syllabus.
{¶6} R.C. 2953.21 et seq., governing the proceedings upon a petition for postconviction relief, permit a common pleas court to grant relief from a conviction
based on a constitutional violation during the proceedings resulting in that
conviction. See R.C. 2953.21(A)(1). Rogers’s motion alleged a constitutional
violation during the appeal from his convictions. The appropriate vehicle for such a
claim is an appeal to the Ohio Supreme Court or an App.R. 26(B) application to this
court to reopen the direct appeal. See State v. Murnahan, 63 Ohio St.3d 60, 584
N.E.2d 1204 (1992), paragraphs one and two of the syllabus. Therefore, the
postconviction statutes did not confer upon the common pleas court jurisdiction to
entertain Rogers’s ineffective-appellate-counsel claim.
{¶7} Nor was Rogers’s motion reviewable under Crim.R. 32.1 as a motion to withdraw a guilty or no-contest plea or under Crim.R. 33 as a motion for a new trial,
because Rogers was convicted following a jury trial, not upon guilty or no-contest
pleas, and the motion did not seek a new trial. The motion was not reviewable under
R.C. Chapter 2731 as a petition for a writ of mandamus, under R.C. Chapter 2721 as a
declaratory judgment action, or under R.C. Chapter 2725 as a petition for a writ of
habeas corpus, because the motion did not satisfy those statutes’ procedural
requirements. See R.C. 2731.04, 2721.12(A), and 2725.04. And Crim.R. 57(B) did
not require the common pleas court to entertain the motion under Civ.R. 60(B),
because Rogers’s convictions were reviewable, and had been reviewed, under the
procedures provided for a direct appeal.
{¶8} Finally, the common pleas court could not have afforded Rogers relief from his convictions under its jurisdiction to correct a void judgment. See State ex
rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 18-
19 (holding that a court always has jurisdiction to correct a void judgment). A
3 OHIO FIRST DISTRICT COURT OF APPEALS
judgment of conviction is voidable, not void, if entered by a court having personal
and subject-matter jurisdiction. State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-
2913, 159 N.E.3d 248, ¶ 4. The trial court had personal jurisdiction by virtue of
Rogers’s appearance before the court under indictment on murder and felony
charges. And the trial court acted within its subject-matter jurisdiction in convicting
him of those offenses. Thus, appellate counsel’s alleged ineffectiveness, even if
demonstrated, would not have rendered Rogers’s convictions void. See id. at ¶ 23-
25.
No Appeals Court Jurisdiction {¶9} Moreover, this court has no jurisdiction to review the common pleas court’s judgment denying Rogers’s “Motion for Relief from Judgment.” Article IV,
Section 3(B)(2) of the Ohio Constitution, confers upon an intermediate appellate
court only “such jurisdiction as may be provided by law to review and affirm, modify,
or reverse judgments or final orders of the courts of record inferior to the court of
appeals within the district.”
{¶10} Under R.C. 2953.02 and 2953.08, a court of appeals has jurisdiction to review a judgment of conviction entered in a criminal case. Rogers appeals here not
from his judgment of conviction, but from the common pleas court’s entry denying
his postconviction motion for relief from his judgment of conviction.
{¶11} An appeals court also has jurisdiction under R.C. 2953.23(B) to review an order awarding or denying postconviction relief. But as we determined, the
postconviction statutes did not confer upon the common pleas court jurisdiction to
entertain Rogers’s motion. Accordingly, the entry denying the relief sought in that
motion was not appealable under R.C. 2953.23(B).
{¶12} An appeals court also has jurisdiction under R.C. 2505.03(A) to review and affirm, modify, or reverse a “final order, judgment or decree.” A “final order”
includes an order that “affects a substantial right” in “an action,” when that order “in
4 OHIO FIRST DISTRICT COURT OF APPEALS
effect determines the action and prevents a judgment,” R.C. 2505.02(B)(1), or when
that order is “made in a special proceeding,” that is, in “an action or proceeding that
is specially created by statute and that prior to 1853 was not denoted as an action at
law or a suit in equity.” R.C. 2505.02(B)(2) and (A)(2). A “final order” also includes
an order that “grants or denies a provisional remedy,” that is, a remedy in “a
proceeding ancillary to an action,” when that order “in effect determines the action
with respect to the provisional remedy and prevents a judgment in the action in favor
of the appealing party with respect to the provisional remedy,” and when “[t]he
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State v. Rogers, 2021-Ohio-2575.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-200236 TRIAL NO. B-9906905 Plaintiff-Appellee, :
vs. : O P I N I O N.
KEVIN ROGERS, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Appeal Dismissed
Date of Judgment Entry on Appeal: July 28, 2021
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Kevin Rogers, pro se. OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Presiding Judge.
{¶1} Defendant-appellant Kevin Rogers appeals the Hamilton County Common Pleas Court’s judgment overruling his 2020 “Motion for Relief from
Judgment.” Because we lack jurisdiction to review that judgment, we dismiss the
appeal.
{¶2} Rogers was convicted in 2000 of murder, felonious assault, and aggravated robbery. He unsuccessfully challenged his convictions on direct appeal
and in postconviction motions filed with the common pleas court in 2o17, 2018, and
2020. State v. Rogers, 1st Dist. Hamilton No. C-000299, 2000 WL 1886627 (Dec.
29, 2000); State v. Rogers, 1st Dist. Hamilton No. C-170599 (Dec. 19, 2018); State v.
Rogers, 1st Dist. Hamilton No. C-190051 (Mar. 31, 2020).
{¶3} In his 2020 “Motion for Relief from Judgment,” Rogers sought relief from his convictions on the ground that he had been denied the effective assistance
of counsel in his direct appeal. He asserted that his appellate counsel had failed to
meet with him or to challenge on appeal the trial court’s jurisdiction, the legality of
his arrest, defects in his indictment, and trial counsel’s ineffectiveness in
investigating and presenting his defense at trial and in failing to pursue
postconviction relief.
{¶4} In this appeal, Rogers presents three assignments of error that may fairly be read together to challenge the denial of that motion. We conclude that the
common pleas court had no jurisdiction to entertain the motion, and that this court
has no jurisdiction to entertain this appeal.
No Common Pleas Court Jurisdiction {¶5} Rogers failed to designate in his motion a statute or rule under which the relief sought may be granted. This left the common pleas court to “recast” the
motion “into whatever category necessary to identify and establish the criteria by
2 OHIO FIRST DISTRICT COURT OF APPEALS
which the motion should be judged.” See State v. Schlee, 117 Ohio St.3d 153, 2008-
Ohio-545, 882 N.E.2d 431, ¶ 12 and syllabus.
{¶6} R.C. 2953.21 et seq., governing the proceedings upon a petition for postconviction relief, permit a common pleas court to grant relief from a conviction
based on a constitutional violation during the proceedings resulting in that
conviction. See R.C. 2953.21(A)(1). Rogers’s motion alleged a constitutional
violation during the appeal from his convictions. The appropriate vehicle for such a
claim is an appeal to the Ohio Supreme Court or an App.R. 26(B) application to this
court to reopen the direct appeal. See State v. Murnahan, 63 Ohio St.3d 60, 584
N.E.2d 1204 (1992), paragraphs one and two of the syllabus. Therefore, the
postconviction statutes did not confer upon the common pleas court jurisdiction to
entertain Rogers’s ineffective-appellate-counsel claim.
{¶7} Nor was Rogers’s motion reviewable under Crim.R. 32.1 as a motion to withdraw a guilty or no-contest plea or under Crim.R. 33 as a motion for a new trial,
because Rogers was convicted following a jury trial, not upon guilty or no-contest
pleas, and the motion did not seek a new trial. The motion was not reviewable under
R.C. Chapter 2731 as a petition for a writ of mandamus, under R.C. Chapter 2721 as a
declaratory judgment action, or under R.C. Chapter 2725 as a petition for a writ of
habeas corpus, because the motion did not satisfy those statutes’ procedural
requirements. See R.C. 2731.04, 2721.12(A), and 2725.04. And Crim.R. 57(B) did
not require the common pleas court to entertain the motion under Civ.R. 60(B),
because Rogers’s convictions were reviewable, and had been reviewed, under the
procedures provided for a direct appeal.
{¶8} Finally, the common pleas court could not have afforded Rogers relief from his convictions under its jurisdiction to correct a void judgment. See State ex
rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 18-
19 (holding that a court always has jurisdiction to correct a void judgment). A
3 OHIO FIRST DISTRICT COURT OF APPEALS
judgment of conviction is voidable, not void, if entered by a court having personal
and subject-matter jurisdiction. State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-
2913, 159 N.E.3d 248, ¶ 4. The trial court had personal jurisdiction by virtue of
Rogers’s appearance before the court under indictment on murder and felony
charges. And the trial court acted within its subject-matter jurisdiction in convicting
him of those offenses. Thus, appellate counsel’s alleged ineffectiveness, even if
demonstrated, would not have rendered Rogers’s convictions void. See id. at ¶ 23-
25.
No Appeals Court Jurisdiction {¶9} Moreover, this court has no jurisdiction to review the common pleas court’s judgment denying Rogers’s “Motion for Relief from Judgment.” Article IV,
Section 3(B)(2) of the Ohio Constitution, confers upon an intermediate appellate
court only “such jurisdiction as may be provided by law to review and affirm, modify,
or reverse judgments or final orders of the courts of record inferior to the court of
appeals within the district.”
{¶10} Under R.C. 2953.02 and 2953.08, a court of appeals has jurisdiction to review a judgment of conviction entered in a criminal case. Rogers appeals here not
from his judgment of conviction, but from the common pleas court’s entry denying
his postconviction motion for relief from his judgment of conviction.
{¶11} An appeals court also has jurisdiction under R.C. 2953.23(B) to review an order awarding or denying postconviction relief. But as we determined, the
postconviction statutes did not confer upon the common pleas court jurisdiction to
entertain Rogers’s motion. Accordingly, the entry denying the relief sought in that
motion was not appealable under R.C. 2953.23(B).
{¶12} An appeals court also has jurisdiction under R.C. 2505.03(A) to review and affirm, modify, or reverse a “final order, judgment or decree.” A “final order”
includes an order that “affects a substantial right” in “an action,” when that order “in
4 OHIO FIRST DISTRICT COURT OF APPEALS
effect determines the action and prevents a judgment,” R.C. 2505.02(B)(1), or when
that order is “made in a special proceeding,” that is, in “an action or proceeding that
is specially created by statute and that prior to 1853 was not denoted as an action at
law or a suit in equity.” R.C. 2505.02(B)(2) and (A)(2). A “final order” also includes
an order that “grants or denies a provisional remedy,” that is, a remedy in “a
proceeding ancillary to an action,” when that order “in effect determines the action
with respect to the provisional remedy and prevents a judgment in the action in favor
of the appealing party with respect to the provisional remedy,” and when “[t]he
appealing party would not be afforded a meaningful or effective remedy by an appeal
following final judgment as to all proceedings, issues, claims, and parties in the
action.” R.C. 2505.02(A)(3) and (B)(4).
{¶13} The judgment overruling Rogers’s motion was not reviewable by this court under R.C. 2505.03(A) as a “final order.” The entry was not “made” in any
“special” statutory proceeding. See R.C. 2505.02(B)(2). Nor can the judgment be
said to have effectively determined or prevented a judgment in any proceeding, when
the motion was not filed in any action, or in any proceeding ancillary to an action,
then pending before the common pleas court. See R.C. 2505.02(B)(1) and (B)(4)(a).
Appeal Dismissed {¶14} This court has no jurisdiction to review the common pleas court’s judgment denying Rogers’s “Motion for Relief from Judgment.” Accordingly, we
dismiss this appeal.
Appeal dismissed.
CROUSE and HENDON, JJ., concur.
SYLVIA S. HENDON, retired, from the First Appellate District, sitting by assignment.
Please note:
The court has recorded its own entry on the date of the release of this opinion.