[Cite as State v. Battin, 2019-Ohio-2195.]


                              IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT



State of Ohio,                                      :

                 Plaintiff-Appellee,                :
                                                                   No. 18AP-888
v.                                                  :          (C.P.C. No. 15CR-835)

James L. Battin,                                    :       (REGULAR CALENDAR)

                 Defendant-Appellant.               :



                                             D E C I S I O N

                                        Rendered on June 4, 2019


                 On brief:     Ron O'Brien, Prosecuting Attorney, and
                 Kimberly M. Bond, for appellee.

                 On brief: James L. Battin, pro se.

                  APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
        {¶ 1} Defendant-appellant, James L. Battin, appeals the decision of the Franklin
County Court of Common Pleas denying appellant's motion to correct an illegal sentence.
For the following reasons, we affirm the trial court.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} Appellant's appeal concerns whether the trial court's consideration of his two
pro se motions, which he filed while represented by counsel, rendered his subsequent
sentence and conviction "illegal" and/or "void." (Oct. 18, 2018 Mot. to Correct Illegal
Sentence at 1.)
        {¶ 3} In February 2015, appellant was indicted for kidnapping and rape, both with
associated firearm specifications. Represented by appointed counsel, appellant initially
No. 18AP-888                                                                                  2


entered a plea of not guilty. In March 2015, defense counsel for appellant filed a "Motion
for Bail" seeking a reduction in the surety bond. (Mar. 5, 2015 Mot. at 1.) A couple of days
later, on March 9, 2015, appellant filed his own "Motion for Bond Reduction" also asking
the trial court to lower his surety bond. (Mar. 9, 2015 Mot. at 1.) A case processing sheet
filed the same day as the scheduled bond hearing notes "no change" in bond. (Mar. 19, 2015
Processing Sheet at 1.) On March 15, 2015, while he was apparently still represented by
counsel, appellant filed another motion on his own, this time asking for the trial court to
order internet access for him while in jail.
         {¶ 4} A criminal processing sheet filed on June 10, 2015, the date set for trial, notes
a change in the cash/surety bond from $1,000,000 to $750,000. Appellant attempted to
appeal the June 10, 2015 order, but this court dismissed the notice of appeal as untimely
filed. On June 17, 2015, the trial court filed an entry denying appellant's motion for internet
usage.
         {¶ 5} Pursuant to a plea agreement and while he was represented by counsel, on
March 16, 2016, appellant entered a plea of guilty to the "stipulated lesser included offense
of Felonious Assault" with a firearm specification. (Mar. 16, 2016 Entry of Guilty Plea at 1.)
The prosecution and defense jointly recommended a sentence. By a judgment entry dated
March 21, 2016, the trial court found appellant guilty of felonious assault, ordered a nolle
prosequi entered for the kidnapping count, and sentenced appellant according to the jointly
recommended sentence.
         {¶ 6} On September 26, 2017, appellant filed a motion to vacate his conviction and
sentence and to dismiss the indictment with prejudice. Within it, appellant argued the trial
court exceeded its jurisdiction in accepting his guilty pleas when felonious assault was not
pled in the indictment. The trial court denied the motion on November 28, 2017 and, on
December 21, 2017, denied appellant's additional motion for an evidentiary hearing on the
matter. Appellant filed a timely notice of appeal of the trial court's November 28, 2017
judgment. In State v. Battin, 10th Dist. No. 17AP-911, 2018-Ohio-2533 ("Battin I"), this
court agreed with appellee and the trial court that appellant's motion should be construed
as an untimely petition for postconviction relief under R.C. 2953.21(A). Therefore, we
found the trial court lacked jurisdiction to entertain appellant's petition and did not err in
denying appellant's petition.
No. 18AP-888                                                                                                 3


        {¶ 7} On December 27, 2017, appellant filed a notice of appeal from the March 16,
2016 judgment of conviction. This court, construing his notice of appeal as a motion for
delayed appeal, denied appellant's motion.
        {¶ 8} On May 16, 2018, appellant filed a motion to correct illegal sentence
requesting the trial court issue an order declaring his sentence and conviction void based
on the argument that felonious assault is not a lesser-included offense of rape. The trial
court denied the motion on May 29, 2018, and appellant appealed. Noting case law
showing it is legally permissible for a defendant to plead guilty to a crime that has not been
indicted, in State v. Battin, 10th Dist. No. 18AP-402, 2018-Ohio-3947 ("Battin II"), we
found the trial court had not erred in denying the motion to correct the allegedly illegal and
void sentence.1
        {¶ 9} Appellant filed the motion at issue in the instant appeal on October 18, 2018.
In his "Motion to Correct an Illegal Sentence," appellant again asked the trial court to
declare his conviction and/or the trial court judgment entry "void" and to "set aside the
sentence." (Oct. 18, 2018 Mot. to Correct Illegal Sentence at 1.) According to appellant, on
June 10, 2015, the trial court held a pre-trial hearing on his motion for bond reduction and
motion for internet usage, where the trial court "subjected him to a 'hybrid' representation."
(Oct. 18, 2018 Mot. to Correct Illegal Sentence at 1.) Appellant contends that defense
counsel joined in presenting the motions and "acted as lead co-counsel" when the trial court
had not sought or secured a waiver of counsel pursuant to Crim.R. 44(C) from appellant
nor "formally grant[ed] the leave necessary for [appellant] to proceed pro se and/or act as
'co-counsel' " on the motions. (Oct. 18, 2018 Mot. to Correct Illegal Sentence at 2-3.)
Appellant contended these actions divested the trial court of jurisdiction.
        {¶ 10} On November 6, 2018, the trial court denied appellant's motion as "not well
taken." (Nov. 6, 2018 Decision and Entry at 1.) Appellant filed a timely appeal.
II. ASSIGNMENTS OF ERROR
        {¶ 11} Appellant assigns the following as trial court error:
                 [1.] The trial court erred to the prejudice of the appellant in
                 violation of his absolute right to procedural due process by
                 overruling the October 18, 2018, "Motion To Correct Illegal

1In a memorandum decision, State v. Battin, 10th Dist. No. 18AP-402, 2018-Ohio-4811 (memorandum
decision), this court also later declined to reopen his appeal of the trial court's May 29, 2018 judgment.
No. 18AP-888                                                                                 4


              Sentence" on the contention that the sentence and conviction
              are both VOID, on the premise of the doctrine of res judicata,
              as alleged by the State.
              [2.] The trial court, in it attempts to systematically adjudicate
              the appellant's case, failed to solicit and secure a waiver of
              counsel pursuant to Crim.R. 44(C) to demonstrate substantial
              compliance with Crim.R. 44(A) by making sufficient inquiry
              to determine whether the defendant fully understood and
              intelligently relinquished his or her right to counsel.
              [3.] The trial court committed error when it entertain pro se
              motions filed the appellant since he was represented by
              defense counsel. A defendant who is represented by counsel
              and does not move the trial court to proceed pro se may not
              "act as co-counsel on his own behalf." Where a defendant who
              is represented by counsel files pro se motion(s) and there is
              no indication that defense counsel joins in those motions or
              indicates a need for relief sought by the defendant pro se, such
              motions are not proper and the trial court may strike them
              from the record.
              [4.] The trial court was put on notice twice, the first being
              March 9, 2015 and again on May 15, 2015 of his intent to act
              as "co-counsel." At the June 10, 2015 pretrial hearing, the trial
              court failed to properly conduct any type of colloquy with him
              regards to his two pro se motions and his asserted desires and
              his intent to act as co-counsel and assist in his case. Faretta
              v. California, (1975) 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed.
              2D 562.
              [5.] The trial court committed plain Crim.R. 52(B), and
              structural error[s], affecting his substantial rights that may be
              noticed at any time, although they were not brought to the
              attention of the court in a direct appeal.
(Sic passim and emphasis sic.)
III. LEGAL ANALYSIS
       {¶ 12} For clarity of discussion, we will address appellant's assignments of error
together. Appellant argues the trial court committed plain error and structural error in
overruling his motion to correct an illegal sentence, which was based on assertions of
"hybrid representation." (Appellant's Brief at i, ii.) Appellant contends res judicata does
not apply here because the trial court's actions divested it of jurisdiction, thereby rendering
his conviction and sentence void. We disagree with appellant.
No. 18AP-888                                                                               5


       {¶ 13} As we stated in Battin I:
              " '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 or
              conviction, or on an appeal from that judgment.' " (Emphasis
              omitted.) State v. Cole, 2 Ohio St.3d 112, 113, 2 Ohio B. 661, 443
              N.E.2d 169 (1982), quoting [State v. Perry, 10 Ohio St.2d 175
              (1967),] paragraph nine of the syllabus. "Res judicata also
              implicitly bars a petitioner from 're-packaging' evidence or
              issues which either were, or could have been, raised in the
              context of the petitioner's trial or direct appeal." [State v.
              Hessler, 10th Dist. No. 01AP-1011, 2002-Ohio-3321,] ¶ 27.

Id. at ¶ 12. Res judicata " 'applies to bar raising piecemeal claims' " in successive motions
filed after the defendant is convicted. State v. Long, 5th Dist. No. 17CA15, 2017-Ohio-2848,
¶ 16, quoting State v. Kent, 4th Dist. No. 02CA21, 2003-Ohio-6156; State v. Hall, 11th Dist.
No. 2007-T-0022, 2008-Ohio-2128, ¶ 21, quoting Brick Processors, Inc. v. Culbertson, 2
Ohio App.3d 478 (8th Dist.1981), paragraph one of the syllabus (" '[P]rinciples of res
judicata prevent relief on successive, similar motions raising issues which were or could
have been raised originally.' ").
       {¶ 14} "[T]he doctrine of res judicata does not preclude review of a void sentence."
State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, ¶ 1; State v. Holdcroft, 137 Ohio St.3d
526, 2013-Ohio-5014, ¶ 9, citing Fischer at ¶ 40 ("[A]bsent a timely appeal, res judicata
generally allows only the correction of a void sanction."). "In general, a void judgment is
one that has been imposed by a court that lacks subject-matter jurisdiction over the case or
the authority to act. * * * Unlike a void judgment, a voidable judgment is one rendered by a
court that has both jurisdiction and authority to act, but the court's judgment is invalid,
irregular, or erroneous." (Citations omitted.) Fischer at ¶ 6.
       {¶ 15} In Fischer, the Supreme Court of Ohio court addressed motions to correct
allegedly illegal sentences. There, the court stated:
              "A motion to correct an illegal sentence 'presupposes a valid
              conviction and may not, therefore, be used to challenge alleged
              errors in proceedings that occur prior to the imposition of
              sentence.' " Edwards v. State (1996), 112 Nev. 704, 708, 918
              P.2d 321, quoting Allen v. United States (D.C.1985), 495 A.2d
No. 18AP-888                                                                                                  6


                1145, 1149. It is, however, an appropriate vehicle for raising the
                claim that a sentence is facially illegal at any time. Id. The scope
                of relief based on a rule, like Fed.R.Crim.P. 35, is likewise
                constrained to the narrow function of correcting only the illegal
                sentence. It does not permit reexamination of all perceived
                errors at trial or in other proceedings prior to sentencing. See,
                e.g., Hill v. United States (1962), 368 U.S. 424, 430, 82 S.Ct.
                468, 7 L.Ed.2d 417.

Id.at ¶ 25.
          {¶ 16} The Fischer court cautioned that the "void sentence[ing]" has been contained
to a "narrow, discrete line of cases." Id. at ¶ 31. Furthermore, even where a certain part of
a sentence is void, "res judicata still applies to other aspects of the merits of a conviction,
including the determination of guilt and the lawful elements of the ensuing sentence." Id.
at ¶ 1.
          {¶ 17} In this case, appellant's appeal of the trial court's determination regarding
bond reduction was dismissed as untimely, appellant did not file a timely appeal of his
conviction and his motion to reopen his appeal was denied, and appellant did not raise any
of these issues in either his postconviction motion or his first previous motion to correct
illegal sentence. Therefore, the issues raised in appellant's latest motion are barred for
review under the doctrine of res judicata unless such issues rendered the judgment void.
          {¶ 18} To this point, appellant essentially attempts to use his alleged "hybrid
representation" at a pre-plea, pre-sentencing hearing regarding bond and internet usage to
argue the trial court's judgment entry of conviction is "void for lack of subject matter
jurisdiction." (Appellant's Brief at 2.) Appellant does not argue hybrid representation or
improper advisements in any way affected his guilty plea. Even if, for sake of argument,2
hybrid representation occurred at the hearing on bond and internet usage, appellant
presents, and we find, no authority for the proposition that such hybrid representation
would result in the trial court losing subject-matter jurisdiction or render the judgment of
conviction following a guilty plea void.
          {¶ 19} Therefore, because no authority supports the proposition that appellant's
sentence and/or conviction is void from the actions of the trial court in this case, and


2This court denied appellant's request for the transcript of the June 10, 2015 hearing be produced at state
expense, and the transcript of the hearing remains absent from the record of appeal.
No. 18AP-888                                                                                7


appellant could have but did not raise these issues previously, we find res judicata precludes
review of appellant's latest motion.
       {¶ 20} Accordingly, appellant's first assignment of error contesting the application
of res judicata is overruled. The disposition of appellant's first assignment of error renders
appellant's second, third, fourth, and fifth assignments of error moot. App.R. 12(A)(1)(c).
IV. CONCLUSION
       {¶ 21} Having overruled appellant's first assignments of error, rendering appellant's
second, third, fourth, and fifth assignments of error moot, we affirm the judgment of the
Franklin County Court of Common Pleas.
                                                                        Judgment affirmed.
                          KLATT, P.J., and NELSON, J., concur.
                                       _____________
