[Cite as State v. Parsons, 2018-Ohio-1346.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                HENRY COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 7-17-06

        v.

CULLEN A. PARSONS,                                        OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Henry County Common Pleas Court
                            Trial Court No. 15CR0082

                                      Judgment Affirmed

                              Date of Decision: April 9, 2018




APPEARANCES:

        Neil S. McElroy for Appellant

        Gwen Howe-Gebers for Appellee



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Case No. 7-17-06


PRESTON, J.

        {¶1} Defendant-appellant, Cullen A. Parsons (“Parsons”), appeals the

September 20, 2017 judgment entry of the Henry County Court of Common Pleas

dismissing his petition for post-conviction relief without a hearing. We affirm the

decision of the trial court on different grounds, concluding that, because the trial

court’s sentencing entry is void, there is no judgment from which Parsons can seek

post-conviction relief.

        {¶2} On March 9, 2016, Parsons was convicted of attempted murder with a

firearm specification, felonious assault with a firearm specification, and improperly

handling firearms in a motor vehicle and sentenced to a cumulative term of 12 years

in prison. (Doc. Nos. 35, 46); State v. Parsons, 3d Dist. Henry No. 7-16-08, 2017-

Ohio-1315, ¶ 2, 4, 5. Parsons appealed the trial court’s judgment entry of sentence.

Parsons at ¶ 6.1 In that direct appeal, we affirmed on April 10, 2017 the judgment

of the trial court, but vacated Parsons’s sentence and remanded the case for proper

sentencing after concluding that the trail court erred in sentencing Parsons to a term

of imprisonment to each of the three offenses after the trial court concluded that the

offenses were allied offenses of similar import. Id. at ¶ 88. Parsons filed a

jurisdictional appeal to the Supreme Court of Ohio. (See Doc. No. 71). The



1
  In Parsons’s direct appeal from his convictions and sentence, this court recited much of the factual and
procedural background of this case, and we will not duplicate those efforts here. See State v. Parsons, 3d
Dist. Henry No. 7-16-08, 2017-Ohio-1315.

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Supreme Court declined jurisdiction on January 31, 2018. State v. Parsons, 151

Ohio St.3d 1503, 2018-Ohio-365. The Supreme Court’s docket reflects that Parsons

filed an application for reconsideration on February 5, 2018 of the Supreme Court’s

declination of jurisdiction to review his direct appeal. That application remains

pending.

       {¶3} While his appeal was pending with the Supreme Court and before he

was resentenced, Parsons filed on July 11, 2017 a petition for post-conviction relief

requesting the trial court “to vacate or set aside the judgment of conviction and

sentence in the instant matter.” (Doc. No. 62). As grounds for the requested relief,

Parsons raised five arguments that he was denied the effective assistance of trial

counsel. (Id.). On August 2, 2017, the State filed a memorandum in opposition to

Parsons’s petition. (Doc. No. 65). In the alternative, the State requested that the

trial court enter summary judgment in its favor. (Id.). Parsons filed his reply to the

State’s memorandum in opposition to his petition and motion for summary

judgment on September 1, 2017. (Doc. No. 70).

       {¶4} On September 20, 2017, the trial court dismissed Parsons’s petition

without a hearing. (Doc. No. 71).

       {¶5} On October 19, 2017, Parsons filed a notice of appeal. (Doc. No. 73).

He raises two assignments of error for our review, which we address together.




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                               Assignment of Error I

       The trial court erred as a matter of law when it dismissed Mr.
       Parsons’ petition for post-conviction relief without holding a
       hearing, on the basis of res judicata.

                              Assignment of Error II

       The trial court abused its discretion when it denied Mr. Parsons’
       request for hearing on his petition for post-conviction relief.

       {¶6} In his first assignment of error, Parsons argues that the trial court erred

by “dismiss[ing] four of Mr. Parsons’ five claims based on the doctrine of res

judicata.” (Appellant’s Brief at 11). In his second assignment of error, Parsons

argues that the trial court abused its discretion by denying his petition without a

hearing.

       {¶7} “R.C. 2953.21 governs petitions for post-conviction relief.” State v.

Wine, 3d Dist. Auglaize No. 2-15-07, 2015-Ohio-4726, ¶ 10, citing State v. Kinstle,

3d Dist. Allen No. 1-12-32, 2013-Ohio-850, ¶ 10. The statute sets forth who may

petition for post-conviction relief:

       Any person who has been convicted of a criminal offense * * * and

       who claims that there was such a denial or infringement of the

       person’s rights as to render the judgment void or voidable under the

       Ohio Constitution or the Constitution of the United States * * * may

       file a petition in the court that imposed sentence, stating the grounds

       for relief relied upon, and asking the court to vacate or set aside the

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Case No. 7-17-06


       judgment or sentence or to grant other appropriate relief.         The

       petitioner may file a supporting affidavit and other documentary

       evidence in support of the claim for relief.

(Emphasis added.)      R.C. 2953.21(A)(1)(a) (2015) (current version at R.C.

2953.21(A)(1)(a) (2017)). “Accordingly, under the plain language of the statute, a

person cannot petition for post-conviction relief unless he ‘has been convicted’ and

there is a ‘judgment.’” State v. Benford, 9th Dist. Summit No. 24828, 2010-Ohio-

54, ¶ 3.

       {¶8} “A judgment of conviction is a final order subject to appeal under R.C.

2505.02 when it sets forth (1) the fact of the conviction, (2) the sentence, (3) the

judge’s signature, and (4) the time stamp indicating the entry upon the journal by

the clerk.” (Emphasis added.) State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-

5204, paragraph one of the syllabus. See also Benford at ¶ 4 (“‘“[A] judgment of

conviction requires a sentence, and a defendant is not convicted until sentenced.”’”),

quoting State v. Haley, 2d Dist. Greene No. 94-CA-107, 1995 WL 418739, *1 (July

7, 1995), quoting State v. Boyd, 95 Ohio App.3d 679, 686 (8th Dist.1994).

       {¶9} We review a trial court’s dismissal of a petition for post-conviction

relief under an abuse-of-discretion standard. State v. Hendrix, 11th Dist. Lake No.

2012-L-080, 2013-Ohio-638, ¶ 7. See also State v. Baker, 3d Dist. Auglaize No. 2-

16-07, 2016-Ohio-5669, ¶ 10. An abuse of discretion suggests that a decision is


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Case No. 7-17-06


unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157-

158 (1980).

      {¶10} The trial court did not abuse its discretion by dismissing Parsons’s

petition for post-conviction relief. As we discussed above, we vacated Parsons’s

sentence after concluding that his sentence was void because it was contrary to law

and remanded the case to the trial court for resentencing. See Parsons, 2017-Ohio-

1315, at ¶ 88. See also State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, ¶ 12

(noting that “the proper remedy for an allied-offenses sentencing error” is to

“‘reverse the judgment of conviction and remand for a new sentencing hearing’”),

quoting State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, paragraph two of the

syllabus, superseded by state statute on other grounds, United States v. Mackey,

S.D.Ohio No. 3:04cr00096, 2014 WL 6606434, *2 (Nov. 20, 2014), fn. 4.

      “‘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.’”

Benford at ¶ 5, quoting State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, ¶

27, quoting State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, ¶ 12.




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         {¶11} The trial court has not resentenced Parsons.2 See Wilson at ¶ 13 (“the

appellate court’s remand requires the trial court to conduct a new sentencing

hearing”). As such, there is no final order of conviction in this case. See, e.g.,

Lester, 130 Ohio St.3d 303, at paragraph one of the syllabus; CrimR. 32. See also

State v. Holdcroft, 3d Dist. Wyandot No. 16-10-04, 2010-Ohio-6262, ¶ 20-21.

         {¶12} Moreover, because there is no judgment entry of conviction, Parsons

could not file a direct appeal.3 See Benford at ¶ 8, citing Bloomer at ¶ 27. “The

time period in which he can file for post-conviction relief, therefore, has not begun

to run.” Id. See State v. Boles, 6th Dist. Lucas No. L-11-1020, 2012-Ohio-385, ¶

7, 17 (suggesting the time period in which a defendant may file a petition for post-

conviction relief restarts when a final order of conviction is issued following the

correction of a void sentence). See also R.C. 2953.21(A)(2) (2015) (current version

at R.C. 2953.21(A)(2) (2017)) (describing the time requirements for filing a petition

for post-conviction relief as “no later than three hundred sixty-five 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”).


2
  Although Parsons filed a jurisdictional appeal to the Supreme Court of Ohio from this court’s decision,
there is no stay of that judgment absent an affirmative motion requesting stay of a court of appeals’ judgment.
See S.Ct.Prac.R. 7.01(A)(3). See also App.R. 7.
3
  “In a remand based only on an allied-offenses sentencing error, the guilty verdicts underlying a defendant’s
sentences remain the law of the case and are not subject to review.” State v. Wilson, 129 Ohio St.3d 214,
2011-Ohio-2669, ¶ 15. “[A]ny prior issues not successfully challenged in [a direct] appeal [that] are outside
the scope of * * * resentencing [are] precluded from further review under the principles of res judicata.” Id.
at ¶ 33.



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         {¶13} For these reasons, we conclude that Parsons’s petition for post-

conviction relief is premature.4 Accord Holdcroft at ¶ 20-21 (concluding that

“because a final order of conviction and sentence had yet to be filed in this case,”

“Holdcroft’s filing for a petition for post-[conviction relief was] premature”);

Benford at ¶ 5 (“Accordingly, because the trial court’s sentencing entry is void and

Mr. Benford has not been resentenced, his petition for post-conviction relief is

premature.”), citing State v. Gross, 5th Dist. Muskingum No. CT2002-0037, 2003-

Ohio-6295, ¶ 20-21 (“concluding that petition for post-conviction relief was

premature because the Ohio Supreme Court had vacated the defendant’s sentence

and resentencing had not taken place”). Therefore, the trial court did not abuse its

discretion by dismissing Parsons’s petition for post-conviction relief. Holdcroft at

¶ 21.

         {¶14} Although we conclude that the trial court properly dismissed Parsons’s

petition for post-conviction relief, we further conclude that the trial court



4
  Although App.R. 6 provides “a trial court and an appellate court * * * concurrent jurisdiction” “to rule on
a petition for post-conviction relief while a direct appeal of the judgment imposing [a] conviction and
sentence is pending,” the trial court did not have concurrent jurisdiction to review Parsons’s petition for post-
conviction relief because there was no final order of conviction at the time Parsons filed his petition. See
State v. Holdcroft, 3d Dist. Wyandot No. 16-10-04, 2010-Ohio-6262, ¶ 18, 21; App.R. 6; R.C. 2953.21(C)
(2015) (current version at R.C. 2953.21(D) (2017)). See also State v. Grega, 11th Dist. Ashtabula No. 2013-
A-0043, 2014-Ohio-1346, ¶ 3, 7 (concluding that the trial court had concurrent jurisdiction to review Grega’s
petition for post-conviction relief notwithstanding that the appellate court vacated Grega’s sentence and
remanded the case for resentencing after Grega filed his petition for post-conviction relief); State ex rel.
Smoot v. Favreau, 5th Dist. Morgan No. 16AP0004, 2016-Ohio-7929, ¶ 8, fn. 1 (concluding that the trial
court had concurrent jurisdiction to review Smoot’s petition for post-conviction relief even though the
appellate court reversed Smoot’s conviction and sentence while his petition for post-conviction relief was
pending).

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erroneously dismissed Parsons’s petition on the merits. The proper remedy was to

dismiss Parsons’s petition other than on the merits. As such, we affirm the trial

court’s dismissal of Parsons’s petition for post-conviction relief for a different

reason—namely, there is no judgment from which Parsons can seek post-conviction

relief and therefore the dismissal is other than on the merits. See Benford at ¶ 1.

       {¶15} Parsons’s assignments of error are overruled.

       {¶16} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                 Judgment Affirmed

WILLAMOWSKI, P.J. and SHAW, J., concur.

/jlr




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