[Cite as State v. Werber, 2014-Ohio-609.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 100290
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
GREGORY WERBER
DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-501932
BEFORE: Jones, J., Boyle, A.J., and Kilbane, J.
RELEASED AND JOURNALIZED: February 20, 2014 FOR APPELLANT
Gregory Werber Inmate No. 540-806 Marion Correctional Institution P.O. Box 57 Marion, Ohio 43301-0057
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor
BY: Daniel T. Van Kevin R. Filiatraut Assistant County Prosecutors The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 LARRY A. JONES, SR., J.:
{¶1} Defendant-appellant, Gregory Werber, appeals the trial court’s denial of his
motion to vacate judgment. We affirm.
I. Procedural History
{¶2} In 2007, Werber was charged with drug trafficking, possession of drugs, and
possession of criminal tools. Werber entered a plea to drug trafficking in an amount
equal to or exceeding 5,000 grams but less than 20,000 grams. As part of the plea
agreement, Werber agreed to a five-year sentence. Werber appealed his plea, and this
court reversed and remanded because the trial court did not substantially comply with
Crim.R. 11(C). State v. Werber, 8th Dist. Cuyahoga No. 90888, 2008-Ohio-6482
(“Werber I”).
{¶3} On remand, Werber represented himself at a jury trial. The jury found
Werber guilty of two counts of drug trafficking and one count of possession of criminal
tools. The trial court merged Werber’s two drug trafficking counts and sentenced Werber
to eight years for drug trafficking and one year for possession of criminal tools, to be
served consecutively, for a total of nine years in prison. This court affirmed his
convictions in State v. Werber, 8th Dist. Cuyahoga No. 93716, 2010-Ohio-4883 (“Werber
II”).
{¶4} In 2011, Werber filed a writ of habeas corpus action in federal district court,
alleging 13 grounds for relief. The federal court ordered that Werber file a copy of the
transcript and exhibits from his state appeals. Werber filed the transcripts but was initially unsuccessful in his attempts to have the state submit its exhibits to the federal
court. Werber filed another notice of appeal with regard to his request for the exhibits
but they were eventually turned over. This court dismissed his appeal as moot. State v.
Werber, 8th Dist. Cuyahoga No. 97797, 2012-Ohio-2516 (“Werber III”), appeal not
accepted, 132 Ohio St.3d 1517, 2012-Ohio-4021, 974 N.E.2d 114.
{¶5} The federal district court denied Werber’s writ of habeas corpus. Werber v.
Milligan, N.D.Ohio No. 1:11CV400, 2012 U.S. Dist. LEXIS 58292 (Mar. 23, 2012), cert.
denied, Werber v. Bunting, __ U.S. __ , 134 S.Ct. 654, 187 L.Ed.2d 432 (2013).
{¶6} In 2012, Werber filed a motion titled “Motion For Relief From Judgment
Pursuant to Rule 60 of the Rules of Civil Procedure” with this court under 8th Dist.
Cuyahoga No. 90888. This court denied the motion, noting that his appeal was released
and journalized in December 2008. Werber appealed the denial to the Ohio Supreme
Court; the court did not accept his appeal for review. State v. Werber, 133 Ohio St.3d
1466, 2012-Ohio-5149, 977 N.E.2d 694.
{¶7} Werber then filed a motion in the trial court captioned “Defendant’s Motion to
Vacate Judgment Based on Newly Discovered Evidence of Fraud on the Courts, Pursuant
to Crim.R. 57(B) and Civ.R. 60(B)(5).” The trial court denied his motion.
{¶8} It is from the denial of this motion that Werber filed this pro se appeal, raising
the following assignments of error:
[I.] The trial court abused its discretion by not finding fraud on the court, fraud on Werber, and by not granting relief that returns Werber to the status quo ante this fraud, or other comparable or equitable relief.
[II.] The trial court abused its discretion by denying without a hearing Werber’s motion to vacate judgment based on newly discovered evidence of fraud on the courts.
[III.] The court of appeals is the proper forum to hear, remedy, and grant relief from this fraud on the courts, fraud on Werber, and the fraudulently obtained and erroneous appellate judgment entered on this court of appeals.
{¶9} We have combined the assignments of error for review.
II. Law and Analysis
{¶10} A vaguely titled motion, including a motion to correct or vacate a sentence,
may be construed as a petition for postconviction relief under R.C. 2953.21(A)(1) where
(1) the motion was filed subsequent to a direct appeal, (2) claimed a denial of
constitutional rights, (3) sought to render the judgment void, and (4) asked for a vacation
of the judgment and sentence. State v. Reynolds, 79 Ohio St.3d 158, 160-161, 679
N.E.2d 1131 (1997). After review, we find that Werber’s motion meets these four
requirements. Accordingly, we shall construe his motion to vacate as a petition for
postconviction relief.
{¶11} R.C. 2953.21 through 2953.23 set forth the means by which 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. 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 or her conviction were denied to such an extent the conviction is rendered void or voidable under
the Ohio or United States Constitutions. R.C. 2953.21(A); State v. Perry, 10 Ohio St.2d
175, 226 N.E.2d 104 (1967), paragraph four of the syllabus.
{¶12} R.C. 2953.21 provides that a postconviction petition must be filed within 180
days from the filing of the trial transcripts in the petitioner’s direct appeal. Therefore,
Werber’s petition was untimely filed. Pursuant to R.C. 2953.23(A)(1), the trial court may
entertain an untimely filed petition only if: (1) Werber was unavoidably prevented from
discovering the facts on which the petition is predicated, or (2) the United States Supreme
Court has recognized a new federal or state law that would apply retroactively to Werber
and he asserts a claim based on that new right.
{¶13} The crux of Werber’s claim on appeal is that the court reporter who
transcribed his original plea falsified the plea transcript by changing the amount of money
he was required to forfeit as part of his plea agreement. As a result, he was induced to
argue for a reversal of his plea and proceed with a trial when this court vacated his plea.
He further argues that the court reporter covered up the falsified transcript with a new
corrected transcript and an “anonymous whistleblower” court reporter sent him the
corrected transcript pages in prison, which is how he discovered the new evidence. As
such, Werber argues, a fraud has been committed upon him and the courts. Finally,
Weber claims the trial court erred when it summarily denied his motion without holding a
hearing.
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[Cite as State v. Werber, 2014-Ohio-609.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 100290
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
GREGORY WERBER
DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-501932
BEFORE: Jones, J., Boyle, A.J., and Kilbane, J.
RELEASED AND JOURNALIZED: February 20, 2014 FOR APPELLANT
Gregory Werber Inmate No. 540-806 Marion Correctional Institution P.O. Box 57 Marion, Ohio 43301-0057
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor
BY: Daniel T. Van Kevin R. Filiatraut Assistant County Prosecutors The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 LARRY A. JONES, SR., J.:
{¶1} Defendant-appellant, Gregory Werber, appeals the trial court’s denial of his
motion to vacate judgment. We affirm.
I. Procedural History
{¶2} In 2007, Werber was charged with drug trafficking, possession of drugs, and
possession of criminal tools. Werber entered a plea to drug trafficking in an amount
equal to or exceeding 5,000 grams but less than 20,000 grams. As part of the plea
agreement, Werber agreed to a five-year sentence. Werber appealed his plea, and this
court reversed and remanded because the trial court did not substantially comply with
Crim.R. 11(C). State v. Werber, 8th Dist. Cuyahoga No. 90888, 2008-Ohio-6482
(“Werber I”).
{¶3} On remand, Werber represented himself at a jury trial. The jury found
Werber guilty of two counts of drug trafficking and one count of possession of criminal
tools. The trial court merged Werber’s two drug trafficking counts and sentenced Werber
to eight years for drug trafficking and one year for possession of criminal tools, to be
served consecutively, for a total of nine years in prison. This court affirmed his
convictions in State v. Werber, 8th Dist. Cuyahoga No. 93716, 2010-Ohio-4883 (“Werber
II”).
{¶4} In 2011, Werber filed a writ of habeas corpus action in federal district court,
alleging 13 grounds for relief. The federal court ordered that Werber file a copy of the
transcript and exhibits from his state appeals. Werber filed the transcripts but was initially unsuccessful in his attempts to have the state submit its exhibits to the federal
court. Werber filed another notice of appeal with regard to his request for the exhibits
but they were eventually turned over. This court dismissed his appeal as moot. State v.
Werber, 8th Dist. Cuyahoga No. 97797, 2012-Ohio-2516 (“Werber III”), appeal not
accepted, 132 Ohio St.3d 1517, 2012-Ohio-4021, 974 N.E.2d 114.
{¶5} The federal district court denied Werber’s writ of habeas corpus. Werber v.
Milligan, N.D.Ohio No. 1:11CV400, 2012 U.S. Dist. LEXIS 58292 (Mar. 23, 2012), cert.
denied, Werber v. Bunting, __ U.S. __ , 134 S.Ct. 654, 187 L.Ed.2d 432 (2013).
{¶6} In 2012, Werber filed a motion titled “Motion For Relief From Judgment
Pursuant to Rule 60 of the Rules of Civil Procedure” with this court under 8th Dist.
Cuyahoga No. 90888. This court denied the motion, noting that his appeal was released
and journalized in December 2008. Werber appealed the denial to the Ohio Supreme
Court; the court did not accept his appeal for review. State v. Werber, 133 Ohio St.3d
1466, 2012-Ohio-5149, 977 N.E.2d 694.
{¶7} Werber then filed a motion in the trial court captioned “Defendant’s Motion to
Vacate Judgment Based on Newly Discovered Evidence of Fraud on the Courts, Pursuant
to Crim.R. 57(B) and Civ.R. 60(B)(5).” The trial court denied his motion.
{¶8} It is from the denial of this motion that Werber filed this pro se appeal, raising
the following assignments of error:
[I.] The trial court abused its discretion by not finding fraud on the court, fraud on Werber, and by not granting relief that returns Werber to the status quo ante this fraud, or other comparable or equitable relief.
[II.] The trial court abused its discretion by denying without a hearing Werber’s motion to vacate judgment based on newly discovered evidence of fraud on the courts.
[III.] The court of appeals is the proper forum to hear, remedy, and grant relief from this fraud on the courts, fraud on Werber, and the fraudulently obtained and erroneous appellate judgment entered on this court of appeals.
{¶9} We have combined the assignments of error for review.
II. Law and Analysis
{¶10} A vaguely titled motion, including a motion to correct or vacate a sentence,
may be construed as a petition for postconviction relief under R.C. 2953.21(A)(1) where
(1) the motion was filed subsequent to a direct appeal, (2) claimed a denial of
constitutional rights, (3) sought to render the judgment void, and (4) asked for a vacation
of the judgment and sentence. State v. Reynolds, 79 Ohio St.3d 158, 160-161, 679
N.E.2d 1131 (1997). After review, we find that Werber’s motion meets these four
requirements. Accordingly, we shall construe his motion to vacate as a petition for
postconviction relief.
{¶11} R.C. 2953.21 through 2953.23 set forth the means by which 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. 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 or her conviction were denied to such an extent the conviction is rendered void or voidable under
the Ohio or United States Constitutions. R.C. 2953.21(A); State v. Perry, 10 Ohio St.2d
175, 226 N.E.2d 104 (1967), paragraph four of the syllabus.
{¶12} R.C. 2953.21 provides that a postconviction petition must be filed within 180
days from the filing of the trial transcripts in the petitioner’s direct appeal. Therefore,
Werber’s petition was untimely filed. Pursuant to R.C. 2953.23(A)(1), the trial court may
entertain an untimely filed petition only if: (1) Werber was unavoidably prevented from
discovering the facts on which the petition is predicated, or (2) the United States Supreme
Court has recognized a new federal or state law that would apply retroactively to Werber
and he asserts a claim based on that new right.
{¶13} The crux of Werber’s claim on appeal is that the court reporter who
transcribed his original plea falsified the plea transcript by changing the amount of money
he was required to forfeit as part of his plea agreement. As a result, he was induced to
argue for a reversal of his plea and proceed with a trial when this court vacated his plea.
He further argues that the court reporter covered up the falsified transcript with a new
corrected transcript and an “anonymous whistleblower” court reporter sent him the
corrected transcript pages in prison, which is how he discovered the new evidence. As
such, Werber argues, a fraud has been committed upon him and the courts. Finally,
Weber claims the trial court erred when it summarily denied his motion without holding a
hearing.
{¶14} Werber’s claim fails because it is both moot and barred by the doctrine of res judicata. Under the doctrine of res judicata, “a valid, final judgment rendered upon the
merits bars all subsequent actions based upon any claim arising out of the transaction or
occurrence that was the subject matter of the previous action.” State v. Patrick, 8th Dist.
Cuyahoga No. 99418, 2013-Ohio-5020, ¶ 7, citing Grava v. Parkman Twp., 73 Ohio
St.3d 379, 382, 653 N.E.2d 226 (1995).
{¶15} Werber made this same argument previously to this court and it was denied.
After Werber II was released and Werber’s motion for reconsideration was denied, Werber
filed a motion with this court to “Correct Falsified Transcript By Remand For New Trial.”
In Motion No. 438930, this court found “any issues involving the original plea ordered
vacated by this court are rendered moot by appellant’s subsequent trial.” Werber II.
{¶16} Werber has also made the same claim to the federal court where it has been
denied. In Werber, N.D.Ohio No. 1:11CV400, 2012 U.S. Dist. LEXIS 58292, *44 (Mar.
23, 2012), one of Werber’s grounds for relief related to “the alleged falsification of the
transcript of the guilty plea hearing submitted in Werber II.” The magistrate judge found:
The plea hearing had no bearing on the outcome of Werber II. Werber overlooks that he prevailed on the challenge to his guilty plea in his first appeal, Werber I, and that his guilty plea and conviction were subsequently vacated. Ground One is moot because his current imprisonment is not based on his guilty plea. Instead, his imprisonment is the result of his subsequent conviction by a jury. Werber, supra at *44-*45.
{¶17} In the district court opinion adopting the magistrate’s decision, the court
opined that Werber’s claim regarding the falsified transcript “became moot when his guilty
plea and conviction were overturned and vacated.” Werber v. Milligan, N.D.Ohio No. 1:11CV400, 2012 U.S. Dist. LEXIS 58291, *5 (Apr. 25, 2012).
{¶18} In this appeal, Werber is raising the same claim with regard to the alleged
falsified transcript. Werber’s original plea of guilty and conviction were vacated and he
was subsequently tried and convicted by a jury. He can no longer attack his original plea;
any arguments about his original plea and conviction are moot.
{¶19} Werber also contends the trial court erred by not holding an evidentiary
hearing on his motion. But a court may dismiss a postconviction petition without an
evidentiary hearing if the petition shows that the petitioner is not entitled to relief. R.C.
2953.21(C); State v. Piasecki, 8th Dist. Cuyahoga No. 98952, 2013-Ohio-1191, ¶ 21.
Therefore, the trial court did not err when it did not hold a hearing on Werber’s motion.
{¶20} The assignments of error are overruled.
{¶21} Judgment affirmed.
It is ordered that appellee recover of 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 Court of Common Pleas 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.
LARRY A. JONES, SR., JUDGE
MARY J. BOYLE, A.J., and MARY EILEEN KILBANE, J., CONCUR