[Cite as State v. Gordon, 2018-Ohio-4311.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                         C.A. No.       29009

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
DANTE D. GORDON                                       COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR-1998-08-1896

                                 DECISION AND JOURNAL ENTRY

Dated: October 24, 2018



        CALLAHAN, Judge.

        {¶1}     Appellant, Dante D. Gordon, appeals an order that denied his “Motion to Vacate

Void Judgment, Void Sentence and Issue a Final Appealable Order.” This Court affirms.

                                                 I.

        {¶2}     In 1998, Mr. Gordon pleaded guilty to murder and an accompanying firearm

specification. The trial court sentenced him to a prison term of fifteen years to life for the

murder conviction and to a three-year prison term for the firearm specification to be served

consecutively. In 2000, Mr. Gordon filed an untimely notice of appeal along with a motion for

delayed appeal, but this Court denied the motion and dismissed his appeal. In the eighteen years

since then, Mr. Gordon has filed numerous motions in the trial court related to the terms of his

sentence, the nature of his guilty plea, the sufficiency of the indictment that charged him, and the

trial court’s compliance with Crim.R. 32(C) in entering judgment. He has also filed numerous

appeals.
                                                2


       {¶3}    In 2011, Mr. Gordon moved the trial court to dismiss the indictment that charged

him. The trial court denied that motion along with several others in an order that treated the

combined motions as a petition for postconviction relief. Seven years later, Mr. Gordon filed a

“Motion to Vacate Void Judgment, Void Sentence and Issue a Final Appealable Order.” The

trial court denied the motion, and Mr. Gordon filed this appeal.

                                                II.

                              ASSIGNMENT OF ERROR NO. 1

       THE TRIAL COURT ERRED WHEN THE COURT REFUSED TO
       EXERC[ISE] ITS INHERENT AUTHORITY TO VACATE VOID JUDGMENT
       & VOID SENTENCE, WHEN THE COURT DENIED APPELLANT’S
       MOTION TO VACATE VOID JUDGMENT, VOID SENTENCE AND ISSUE
       A FINAL APPEALABLE ORDER, WHERE THE TRIAL COURT [LACKED]
       THE AUTHORITY TO PRONOUNCE A JUDGMENT & SENTENCE THE
       APPELLANT, CONVICTING HIM OF “3” YEARS FOR A FIREARM
       SPECIFICATION IN VIOLATION OF STATUTORY MANDATES
       PURSUANT TO [R.C.] 2941.145 WHERE THE APPELLANT PLEAD
       GUILTY TO MURDER, BUT ALSO PLEAD GUILTY TO THE FIREARM
       SPECIFICATION THAT WAS CONTINGENT ON AND PREDICATED ON
       THE OFFENSE OF AGGRAVATED MURDER, THUS MAKING THE
       CONVICTION ON THE FIREARM SPECIFICATION VOID.          AS A
       PROXIMATE RESULT APPELLANT’S RIGHTS WERE VIOLATED UNDER
       O.CONST.1 SEC.2 EQUAL PROTECTION & BENEFIT, O.CONST.1 SECT.16
       REDRESS FOR INJURY, DUE PROCESS & IN VIOLATION OF THE
       APPELLANT’S RIGHT TO DUE PROCESS & EQUAL PROTECTION OF
       THE LAWS TO THE U.S. CONSTITUTION, UNDER THE 14TH
       AMENDMENT.

                              ASSIGNMENT OF ERROR NO. 2

       THE TRIAL COURT ERRED WHEN THE COURT REFUSED TO EXERCISE
       ITS INHERENT POWER TO VACATE VOID JUDGMENT, WHEN THE
       COURT DENIED APPELLANT’S MOTION TO VACATE VOID JUDGMENT,
       VOID SENTENCE & ISSUE A FINAL APPEALABLE ORDER WHERE THE
       JUDGMENT ENTRY OF CONVICTION WAS VOID ON ITS FACE DUE TO
       THE COURT LACKED THE AUTHORITY TO CONVICT THE APPELLANT
       TO “POSSESSION OF A FIREARM” WHERE THERE IS NO SUCH
       CRIMINAL OFFENSE IN OHIO.       AS A PROXIMATE RESULT
       APPELLANT’S RIGHTS WERE VIOLATED UNDER O.CONST.1 SEC.2
       EQUAL PROTECTION & BENEFIT, O.CONST.1 SECT.16 REDRESS FOR
                                                 3


       INJURY, DUE PROCESS & IN VIOLATION TO APPELLANT’S RIGHT TO
       THE 14TH AMENDMENT TO DUE PROCESS AND EQUAL PROTECTION
       OF THE LAWS UNDER THE U.S. CONSTITUTION, UNDER THE 14TH
       AMENDMENT.

                             ASSIGNMENT OF ERROR NO. 3

       THE TRIAL COURT ERRED WHEN THE COURT REFUSED TO EXERCISE
       ITS INHERENT AUTHORITY TO VACATE THE APPELLANT’S
       SENTENCE, WHEN THE TRIAL COURT DENIED APPELLANT’S MOTION
       TO VACATE VOID JUDGMENT[,] VOID SENTENCE & ISSUE A FINAL
       APPEALABLE ORDER WHERE THE JUDGMENT ENTRY OF
       CONVICTION WAS VOID ON ITS FACE, DUE TO THE COURT LACKING
       AUTHORITY TO SENTENCE APPELLANT TO “3” YEARS, WHERE NO
       SENTENCE NOR OFFENSE EXIST IN OHIO FOR “POSSESSION OF A
       FIREARM.” AS A PROXIMATE RESULT APPELLANT’S RIGHTS WERE
       VIOLATED UNDER O.CONST.1 SEC.2 EQUAL PROTECTION & BENEFIT,
       O.CONST.1 SECT.16 REDRESS FOR INJURY DUE PROCESS & IN
       VIOLATION TO APPELLANT’S RIGHT TO THE FOURTEENTH
       AMENDMENT TO DUE PROCESS & EQUAL PROTECTION OF THE LAWS
       TO THE U.S. CONSTITUTION.

                             ASSIGNMENT OF ERROR NO. 4

       THE TRIAL COURT ERRED WHEN THE COURT REFUSED TO EXERCISE
       ITS INHERENT AUTHORITY TO VACATE APPELLANT’S VOID
       JUDGMENT ENTRY & ISSUE A FINAL APPEALABLE ORDER. WHERE
       THE JOURNAL ENTRY VIOLATES [CRIM.R.] 32(C) STATE V. BAKER,
       [P1] ONE DOCUMENT RULE & WHERE THE JUDGMENT ENTRY [DOES]
       NOT SPEAK THE TRUTH, FAILING TO PROPERLY JOURNALIZE THE
       JUDGMENT OF THE CONVICTION BAKER, [P10], WHERE THE
       JUDGMENT ENTRY [DOES] NOT DISPOSE OF THE FIREARM
       SPECIFICATION THAT APPELLANT PLEAD GUILTY TO AND WAS
       CONVICTED OF PURSUANT TO [R.C.] 2941.145 NOR THE SENTENCE TO
       THE FIREARM SPECIFICATION PURSUANT TO [R.C.] 2941.145 THAT
       WAS CONTINGENT & PREDICATED ON AGGRAVATED MURDER. AS A
       PROXIMATE RESULT APPELLANT’S RIGHTS WERE VIOLATED UNDER
       O.CONST.1 SEC.2 EQUAL PROTECTION AND BENEFIT, O.CONST.1
       SECT.16 REDRESS FOR INJURY, DUE PROCESS & IN VIOLATION OF
       THE APPELLANT’S RIGHTS TO THE FOURTEENTH AMENDMENT TO
       DUE PROCESS & EQUAL PROTECTION OF THE LAWS TO THE U.S.
       CONSTITUTION.

       {¶4}   Mr. Gordon’s four assignments of error argue that the trial court erred by denying

his postsentence motion. This Court disagrees.
                                                 4


       {¶5}    “A vaguely titled motion, including a motion to correct or vacate a judgment or

sentence, may be construed as a petition for post-conviction 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. Davis, 9th Dist. Medina No. 15C0004-M, 2015-Ohio-5182, ¶

6, citing State v. Reynolds, 79 Ohio St.3d 158, 160 (1997). Mr. Gordon’s motion meets each of

these requirements and is properly construed as a petition for postconviction relief.

       {¶6}    A trial court may only entertain second or successive petitions for postconviction

relief when two thresholds have been met:

       (a) Either the petitioner shows that the petitioner was unavoidably prevented from
       discovery of the facts upon which the petitioner must rely to present the claim for
       relief, or, subsequent to the period prescribed in division (A)(2) of section
       2953.21 of the Revised Code or to the filing of an earlier petition, 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]

       (b) The petitioner shows by clear and convincing evidence that, but for
       constitutional error at trial, no reasonable factfinder would have found the
       petitioner guilty of the offense of which the petitioner was convicted or, if the
       claim challenges a sentence of death that, but for constitutional error at the
       sentencing hearing, no reasonable factfinder would have found the petitioner
       eligible for the death sentence.

R.C. 2953.23(A)(1). Mr. Gordon’s second petition for postconviction relief did not explain why

he was unavoidably prevented from discovering the facts upon which his petition was based, and

it did not identify a retroactive right that has been recognized by the United States Supreme

Court. See State v. Wright, 9th Dist. Summit No. 27880, 2016-Ohio-3542, ¶ 9. Accordingly,

this Court concludes that the trial court did not err by denying his petition, and Mr. Gordon’s

four assignments of error are overruled.
                                                 5


                                                III.

       {¶7}    Mr. Gordon’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.



                                                       LYNNE S. CALLAHAN
                                                       FOR THE COURT

SCHAFER, P. J.
CARR, J.
CONCUR.

APPEARANCES:

DANTE D. GORDON, pro se, Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and MARRETT W. HANNA, Assistant
Prosecuting Attorney, for Appellee.
