[Cite as State v. Williams, 2014-Ohio-3589.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                       No. 100639



                                       STATE OF OHIO

                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                    MICAH WILLIAMS
                                                        DEFENDANT-APPELLANT




                                               JUDGMENT:
                                                AFFIRMED


                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-05-469067-A

        BEFORE: Stewart, J., Kilbane, P.J., and McCormack, J.

        RELEASED AND JOURNALIZED:                       August 21, 2014
ATTORNEY FOR APPELLANT

Vicki L. Ward
75 Public Square, Suite 600
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Amy E. Venesile
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, OH 44113
MELODY J. STEWART, J.:

          {¶1} In August 2006, defendant-appellant Micah Williams pleaded guilty to

amended charges of involuntary manslaughter, kidnapping, aggravated robbery, and

tampering with evidence in connection with a charge of aggravated robbery that resulted

in the shooting death of a young woman in Maple Heights. The trial court found him

guilty and imposed sentence.

          {¶2} After his conviction, Williams filed a direct appeal alleging six assigned

errors.    We affirmed his convictions, but we found that the court erred in ordering

solitary confinement as part of the sentence and vacated that portion. State v. Williams,

8th Dist. Cuyahoga No. 88737, 2007-Ohio-5073. The Supreme Court of Ohio denied

further review of this matter. State v. Williams, 116 Ohio St.3d 1508, 2008-Ohio-381,

880 N.E.2d 483. In 2008, Williams requested that his appeal to this court be reopened,

but we denied his request. State v. Williams, 8th Dist. Cuyahoga No. 88737,

2008-Ohio-1099.

          {¶3} In April 2013, Williams filed a pro se motion to vacate his sentence,

judgment, and conviction.        In the motion, he argued that the trial court had lacked

subject matter jurisdiction and that all orders and judgments of the trial court were

thereby void.     He also argued that he was deprived of the effective assistance of counsel.

          {¶4} The trial court appointed counsel to represent Williams on his motion

approximately six months later and set a hearing date for November 2013.           However,

prior to the scheduled hearing date, the trial court denied the motion and canceled the
hearing stating that because Williams had pleaded guilty, any claim with respect to

subject matter jurisdiction was waived. Williams appeals this ruling.

      {¶5} In two assignments of error, Williams argues (1) that the trial court erred by

denying the motion to vacate his sentence based on the court’s determination that he

waived the right to challenge subject matter jurisdiction by pleading guilty, and (2) that

the court erred by failing to hold a hearing on his motion to vacate. We find that

Williams’s claims lack merit for several reasons.

      {¶6} A motion to correct or vacate a sentence is a petition for postconviction

relief under R.C. 2953.21(A)(1) where (1) the motion was filed subsequent to a direct

appeal, (2) the motion claims a denial of constitutional rights, (3) the motion seeks to

render the judgment void, and (4) the motion requests a vacation of the judgment and

sentence. State v. Jackson, 8th Dist. Cuyahoga No. 99929, 2014-Ohio-927,  16, citing

State v. Reynolds, 79 Ohio St.3d 158, 160-161, 679 N.E.2d 1131 (1997).

      {¶7} A petition for postconviction relief claiming a violation of a constitutional

right must be filed no later than 180 days after the expiration of the time for filing the

appeal.   R.C. 2953.21(A)(2).   The time requirement for postconviction relief, pursuant

to R.C. 2953.21(A), is jurisdictional. State v. Hutton, 8th Dist. Cuyahoga No. 80763,

2007-Ohio-5443, ¶ 23.

      {¶8} An exception to the time requirement exists if it can be demonstrated that

(1) the petitioner was unavoidably prevented from discovering the facts relied on in the

claim for relief or that the United States Supreme Court recognized a new federal or state
right that applies retroactively to persons in the petitioner’s situation, and the petition

asserts a claim based on that right; and (2) there is clear and convincing evidence that, but

for the constitutional error at trial, no reasonable trier of fact would have found the

petitioner guilty of the offense. R.C. 2953.23(A)(1).

         {¶9} Williams is clearly past the 180-day time frame for filing his motion, so in

the absence of an exception to the time requirement, the trial court properly denied his

motion without a hearing (a court is not required to hold a hearing on a petition for

postconviction relief where the record and the petition fail to demonstrate that the

defendant is entitled to relief, State v. Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905

(1999), paragraph two of the syllabus), because the trial court would be without

jurisdiction to consider it.   As an exception to the time requirement, Williams argues that

the United States Supreme Court has recognized a new federal right since his conviction

that applies retroactively to him.     That right, he argues, is the right to the effective

assistance of counsel at the pleading stages of a criminal case, established anew by the

United States Supreme Court case Lafler v. Cooper, 566 U.S. 1 ____, 132 S.Ct. 1376, 182

L.Ed.2d 398 (2012).       Lafler has created no new right to the effective assistance of

counsel.

         {¶10} In Lafler, the United States Supreme Court reiterated that a defendant’s right

to the effective assistance of counsel applies to pretrial stages that are part of the whole

course of a criminal proceeding. Id. at 1387.      This concept has been recognized for 30

years.     See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984).     Indeed, Williams’s claims of ineffective assistance of counsel were considered

and overruled in his direct appeal, so they are barred as res judicata.

       {¶11} The doctrine of res judicata precludes a convicted defendant from raising an

issue in a motion for postconviction relief if he raised or could have raised the issue on

direct appeal. State v. Sturdivant, 8th Dist. Cuyahoga No. 98747, 2013-Ohio-584, ¶ 13,

citing State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), at paragraph nine of the

syllabus.

       {¶12} Williams claims in his motion to vacate, as he argued in his direct appeal,

that he received ineffective assistance of counsel during his 2006 plea negotiations where

his counsel recommended that he reject the state’s offer of a 20-year sentence in exchange

for his plea to amended charges.     Williams’s counsel told him that he would receive a

more favorable sentence from the trial court.    Contrary to defense counsel’s belief, after

Williams pleaded guilty to the amended charges, the court convicted him of the multiple

offenses and ran each sentence consecutively for a total of 30 years in prison.

       {¶13} In his direct appeal, we determined that Williams was not deprived of the

effective assistance of counsel where his lawyer offered a professional opinion based on

his best prediction of what he thought the court would do: that opinion being based on

years of experience and after consideration of all factors relating to Williams’s case.

Williams at  32.      Williams faced aggravated murder charges with capital murder

specifications. And even with the plea arrangement and reduction of the charges, the time

in prison that the court could have imposed was up to 38 years.           Id. at  33. We
determined that the fact Williams took the advice of his counsel and allowed the trial

court to sentence him did not equate to a showing that his counsel’s performance fell

below an objective standard of reasonable representation. Id.

         {¶14} The Supreme Court’s decision in Lafler recognized no new right to the

effective assistance of counsel during the pleading stage.        The above analysis makes

clear that Williams had his claims of ineffective assistance fully considered by this court

in his direct appeal.   His claims were unsuccessful, not because they were not properly

considered or considered under some outdated version of ineffective assistance of counsel

law.     His arguments were determined to be without merit.        Because these claims have

been previously considered, res judicata bars their further review. We therefore reject

Williams’s attempt to avoid the time bar to his postconviction relief motion.

         {¶15} Finally, in his motion to vacate, Williams argued that the trial court was

without subject matter jurisdiction at the time he was convicted because he was

unlawfully arrested and subjected to an illegal search.      In denying the motion, the court

stated in its journal entry that “any claim or argument with respect to subject matter

jurisdiction has been waived by [Williams’s] knowing, intelligent and voluntary guilty

plea.”    Williams argues that this determination by the trial court is incorrect.

         {¶16} Although incorrectly referenced as being without subject matter jurisdiction,

we interpret the trial court’s entry as recognizing the fact that once Williams pleaded

guilty, he waived the right to challenge the court’s authority to preside over his case on

the basis that arrest and search warrants issued against him were invalid.           This was a
proper determination by the court. See State v. Montgomery, 2d Dist. Montgomery No.

21507, 2007-Ohio-440,  18-19 (the court overruled the defendant’s assignment of error

attacking the lawfulness of the search warrant and found that since the defendant pleaded

guilty, he waived any error in the proceedings that did not implicate the validity of the

guilty plea). By entering a plea of guilty, a criminal defendant does not waive his

objections to the subject matter jurisdiction of the court. See State v. Hollis, 91 Ohio

App.3d 371, 632 N.E.2d 935 (8th Dist.1993).

      {¶17} Judgment affirmed.

      It is ordered that appellee recover of appellant its 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.



________________________________________
MELODY J. STEWART, JUDGE

MARY EILEEN KILBANE, P.J., and
TIM McCORMACK, J., CONCUR
