[Cite as State v. Damron, 2010-Ohio-6459.]




                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                      ROSS COUNTY

State of Ohio,                               :                 Case No. 10CA3158

        Plaintiff-Appellee,                  :

        v.                                   :                 DECISION AND
                                                               JUDGMENT ENTRY
James E. Damron,                             :
                                                               Released 12/28/10
     Defendant-Appellant.       :
______________________________________________________________________
                            APPEARANCES:

James E. Damron, Ross Correctional Institute, Chillicothe, Ohio, pro se Appellant.

Michael M. Ater, Ross County Prosecuting Attorney, and Richard W. Clagg, Ross
County Assistant Prosecuting Attorney, Chillicothe, Ohio, for Appellee.
______________________________________________________________________
Harsha, J.

        {¶1}    James Damron appeals from the entry of the Ross County Court of

Common Pleas denying his pro se “motion for void judgment.” The state charged and

convicted Damron of felonious assault in 2005. He later filed a delayed appeal to this

Court and we affirmed his conviction. In 2009 Damron filed the motion for “void

judgment” in which he set forth new claims contesting his conviction, as well as the

same or similar claims he presented in his direct appeal.

        {¶2}    We construe Damron’s motion for “void judgment” as an untimely petition

for postconviction relief under R.C. 2953.23(A) and conclude it could be dismissed

without conducting a hearing.

        {¶3}    Damron’s petition also raises several arguments that he raised or could

have raised on direct appeal. Under the doctrine of res judicata, the court could not
Ross App. No. 10CA3158                                                                                  2


review those issues in the context of a postconviction proceeding, so summary rejection

was appropriate.

          {¶4}    Finally, Damron contends that the state violated his rights under the

Double Jeopardy Clause by imposing administrative prison sanctions on him while he

was serving time for the underlying conviction. However, administrative sanctions

imposed in prison are not “criminal punishment” for purposes of the Double Jeopardy

Clause and thus we reject this argument as well.

          {¶5}      Accordingly, we affirm the decision of the trial court.

                                             I. Summary of the Case

          {¶6}    While incarcerated at the Ross Correctional Institution in 2005, Damron

fought with an inmate. Following a jury trial, the court convicted him of felonious

assault. Damron appealed his conviction to this Court and we affirmed, rejecting his

arguments that: (1) his conviction was against the manifest weight of the evidence; (2)

the trial court failed to exclude two allegedly inadmissible hearsay statements; and (3)

his trial counsel provided ineffective assistance. See State v. Damron, Ross App. No.

06CA2903, 2007-Ohio-1187.

          {¶7}    Damron later filed a discretionary appeal, which the Supreme Court of

Ohio did not accept. Finally, Damron filed a federal writ of habeas corpus, which the

district court apparently rejected.1

          {¶8}    In 2009, Damron filed a “motion for void judgment,” alleging errors that

occurred before, during, and after his trial. Damron principally claimed that his

indictment was defective. This argument was the only issue Damron presented at

length in his motion and the only argument presented that could arguably provide for a
1
    Damron’s subsequent appeals are not in our record but he referred to them in his appellate brief.
Ross App. No. 10CA3158                                                                      3


“void judgment.” A judgment is “void” when a court that issues it lacks subject-matter

jurisdiction over the action. Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806

N.E.2d 992, at ¶12. “The effect of determining that a judgment is void is well

established. It is as though such proceedings had never occurred; the judgment is a

mere nullity and the parties are in the same position as if there had been no judgment.”

State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, at ¶12, quoting

Romito v. Maxwell (1967), 10 Ohio St.2d 266, 267, 227 N.E.2d 223 (per curiam)

(internal citations omitted).2 A defective indictment could potentially “render” a judgment

void, while non-structural errors occurring at trial would typically not. See, e.g., State v.

Coldwell (1982), 3 Ohio App.3d 283, 285, 445 N.E.2d 257.

          {¶9}    Damron also briefly complained that: (1) his conviction was against the

manifest weight of the evidence; (2) the trial court admitted inadmissible hearsay; (3)

various violations of his Constitutional rights occurred; (4) he received ineffective

assistance of counsel; and (5) the trial court failed to instruct the jurors on lesser

included offenses.

          {¶10} The trial court denied this motion on the basis that “defendant’s arguments

could have been raised on direct appeal but were not.” Thereafter, Damron filed this

appeal.

                                        II. Assignments of Error

          Assignment of Error No. 1

          CONVICTION IS AGAINST THE MANIFEST WEIGHT OF EVIDENCE.

          Assignment of Error No. 2



2
    Bezak mistakenly indicates that it quotes Romito at 267-268.
Ross App. No. 10CA3158                                                                         4


       THE STATE USED PREJUDICIAL TESTIMONY THAT SHOULD HAVE BEEN
       CLASSIFIED AS INADMISSIBLE TESTIMONY.

       Assignment of Error No. 3

       THE CHARGES FILED AGAINST THE DEFENDANT/APPELLANT IN THE
       INDICTMENT ARE IN VIOLATION OF DUE PROCESS, FIFTH, EIGHTH AND
       FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION
       AND SECTION 16 ARTICLE 1 OF THE OHIO CONSTITUTION CAUSED BY
       INEFFECTIVE COUNSEL.

       Assignment of Error No. 4

       THE FAILURE TO INCLUDE A LESSER INCLUDED OFFENSE FOR THE JURY
       TO CONSIDER AMOUNTS TO PLAIN ERROR.

          III. The “Void Judgment” Motion is a Petition for Postconviction Relief

       {¶11} Damron’s “motion for void judgment” is actually best deemed a petition for

postconviction relief. See State v. Reynolds, 79 Ohio St.3d 158, 1997-Ohio-304, 679

N.E.2d 1131, at syllabus (holding that a post direct appeal motion seeking to vacate a

conviction on constitutional grounds is treated as a petition for postconviction relief).

Under R.C. 2953.21(A), an individual convicted of a criminal offense may petition the

court that previously imposed sentence to vacate the judgment if the defendant alleges

that the judgment is void or voidable. Postconviction relief is available only for errors of

constitutional-dimension, i.e., errors that effectively deprived the trial court of jurisdiction

to convict the defendant. State v. Perry (1967), 10 Ohio St.2d 175, 178-179, 226

N.E.2d 104; State v. Powell (1993), 90 Ohio App.3d 260, 264, 629 N.E.2d 13; see, also,

Katz and Gianelli, Ohio Criminal Law (2007), Section 81:2. Postconviction relief is the

appropriate method to address unconstitutional errors based upon evidence outside of

the trial record. Id.
Ross App. No. 10CA3158                                                                       5


       {¶12} In his motion for “void judgment,” Damron alleged that his indictment was

defective, thus rendering his conviction void (an argument that he does not renew on

appeal). Damron also re-raised arguments that he presented to this court in his direct

appeal and asserted new arguments based on matters that he did not (but could have)

raised on direct appeal. This latter fact notwithstanding, we believe that the trial court

should have construed Damron’s “motion for void judgment” as an untimely petition for

postconviction relief under R.C. 2953.23(A). Applying that statute we conclude a

summary denial of the motion was appropriate.

               A. Damron Failed to Establish Grounds to File a Delayed Petition

       {¶13} Under R.C. 2953.21(A)(2), a defendant must file a petition for

postconviction relief no later than 180 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.” If a

defendant fails to file an appeal, the 180 days begins to run upon expiration of the 30-

day period for filing a timely appeal. Id. The total time limit remains the same if the

defendant files a delayed appeal. “[D]efendants who file a delayed appeal are treated

the same as defendants who file no appeal at all; both are given two hundred ten days

from the date of conviction to bring a petition, one hundred eighty days plus the original

thirty-day appeal period.” State v. Bird (2000), 138 Ohio App.3d 400, 406, 741 N.E.2d

560.

       {¶14} The court convicted Damron on December 20, 2005. He filed notice of his

delayed direct appeal in this case on May 31, 2006. The 210th day following December

20, 2005 was July 18, 2006. Thus, Damron’s present petition for postconviction relief,

filed on December 18, 2009 was clearly untimely.
Ross App. No. 10CA3158                                                                      6


       {¶15} If a petition for postconviction relief is untimely, the defendant may still

seek “delayed relief” under R.C. 2953.23(A). The defendant “must demonstrate either

that he was unavoidably prevented from discovering facts upon which his petition relies,

or that his petition relies on the recognition of a new federal or state right recognized by

the United States Supreme Court that applies retroactively to a person in the petitioner’s

situation. In addition to one of these two factors, the petitioner must show by clear and

convincing evidence that, but for the constitutional error, no reasonable trier of fact

would have found him guilty of the offense for which he was convicted.” State v. Hill

(1998), 129 Ohio App.3d 658, 661, 718 N.E.2d 978, citing R.C. 2953.23(A).

       {¶16} Damron’s petition failed to address, or otherwise demonstrate what

“unavoidably prevented” him from discovering the facts upon which the petition relies.

Damron’s principal argument contends that his indictment was defective. However,

Damron failed to explain why he could not have asserted this argument within the time

for filing a timely petition for postconviction relief. Ostensibly, Damron had access to

any charging instrument in this case for at least four years prior to filing the untimely

petition.

       {¶17} Damron also contends that he has acquired new evidence indicating that

a witness who testified on the state’s behalf lied about the type of shoes he was wearing

during the attack. He claims that the prosecutor withheld exculpatory evidence

regarding these shoes. However, Damron did not specifically present this argument in

his petition to the trial court, so he has forfeited it. And, he has also has failed on

appeal to explain what “unavoidably prevented” him from discovering this evidence at

an earlier time.
Ross App. No. 10CA3158                                                                        7


       {¶18} Finally, Damron’s petition makes no reference to a new federal or state

right recognized by the United States Supreme Court.

       {¶19} Because his petition failed to satisfy the requirements for a delayed

petition, the trial court lacked jurisdiction to consider it and a dismissal without a hearing

was appropriate. See R.C. 2953.23(A) (unless the defendant shows the required

exceptions “a court may not entertain a petition filed after the expiration of the period

prescribed in [R.C. 2953.21(A)].”)

                           B. Res Judicata Bars Damron’s Remaining
                               Postconviction Relief Arguments

       {¶20} The court could have denied at least a portion of Damron’s delayed

petition on other grounds. Under the doctrine of res judicata, a court may not consider

issues that a defendant raised or could have raised on direct appeal in postconviction

relief proceedings. State v. Nichols (1984), 11 Ohio St.3d 40, 41-42, 463 N.E.2d 375.

Postconviction relief is available only for errors based upon facts and evidence outside

the record, which would not be reviewable on direct appeal. See State v. Rodriguez

(1989), 65 Ohio App.3d 151, 153, 583 N.E.2d 347 (per curiam).

       {¶21} In his “motion for void judgment,” Damron asserted several arguments that

he raised on direct appeal or could have raised there. In this appeal, Damron assigns

error to only two of those issues. First, Damron argues that his conviction was against

the manifest weight of the evidence. We concluded in Damron’s 2007 direct appeal that

his conviction was not against the weight of the evidence. This issue is res judicata

(and “law of the case,” see Nolan v. Nolan (1984), 11 Ohio St.3d 1, 462 N.E.2d 410, at

syllabus) and the court could not review it again in a postconviction proceeding.

Second, Damron alleged that the trial court erred by failing to instruct the jury on lesser
Ross App. No. 10CA3158                                                                   8


included offenses. Although Damron did not raise this argument in his 2007 direct

appeal, he could have. Thus, res judicata bars review of this issue as well in

postconviction proceedings.

                                  C. Administrative Sanctions

      {¶22} In his third assignment of error, Damron claims a violation of his rights

under the Double Jeopardy Clause of the United States Constitution. The Double

Jeopardy Clause protects a criminal defendant against: (1) a second prosecution for

the same offense after acquittal; (2) a second prosecution for the same offense after

conviction; and (3) multiple punishments for the same offense. Monge v. California

(1998), 524 U.S. 721, 727-728, 118 S.Ct. 2246. See, also, Section 10, Article I of the

Ohio Constitution.

      {¶23} In his appellate brief, Damron fails to explain what aspect of his conviction

violated the Double Jeopardy Clause. After the state mentions this omission in its

appellee’s brief, Damron explains in his reply brief that Double Jeopardy applies

because “Appellant spent approximately sixteen (16) months in isolation, had RIB, LC

and 4-B hearings and received a five (5) year consecutive sentence therefore being

subjected to various punishments for the same charge.” Apparently, Damron is arguing

that the sanctions he has received while in prison amount to double punishment for the

same offense. We have previously held that administrative punishments imposed

within the prison system are not “criminal punishment” and thus do not implicate the

Double Jeopardy Clause. See State v. Thompson (1999), 132 Ohio App.3d 755, 758,

726 N.E.2d 530. Consequently, we overrule this assignment of error.
Ross App. No. 10CA3158                                                                         9


                                       IV. Conclusion

       {¶24} Although the trial court should have treated Damron’s “motion for void

judgment” as an untimely petition for postconviction relief, it did not err by denying it as

we would have reached the same ultimate result. Consequently, we overrule each of

Damron’s assignments of error.

                                                                  JUDGMENT AFFIRMED.
Ross App. No. 10CA3158                                                                      10


                                    JUDGMENT ENTRY

         It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

         The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Ross
County Court of Common Pleas to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.

McFarland, P.J. & Kline, J.: Concur in Judgment and Opinion.

                                            For the Court


                                            BY: ________________________
                                                William H. Harsha, Judge




                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
