[Cite as State v. Bryant, 2010-Ohio-4401.]
                            STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT

STATE OF OHIO,                                   )
                                                 )
        PLAINTIFF-APPELLEE,                      )
                                                 )
VS.                                              )          CASE NO. 10-MA-11
                                                 )
WILLIAM BRYANT,                                  )               OPINION
                                                 )
        DEFENDANT-APPELLANT.                     )

CHARACTER OF PROCEEDINGS:                        Criminal Appeal from Court of Common
                                                 Pleas of Mahoning County, Ohio
                                                 Case No. 98CR89

JUDGMENT:                                        Affirmed

APPEARANCES:
For Plaintiff-Appellee                           Paul Gains
                                                 Prosecutor
                                                 Ralph M. Rivera
                                                 Assistant Prosecutor
                                                 21 W. Boardman St., 6th Floor
                                                 Youngstown, Ohio 44503-1426

For Defendant-Appellant                          William Bryant, pro-se
                                                 #375-771
                                                 P.O. Box 8107
                                                 Mansfield, Ohio 44901




JUDGES:

Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro


                                                 Dated: September 13, 2010
[Cite as State v. Bryant, 2010-Ohio-4401.]
DONOFRIO, J.

        {¶1}     Defendant-appellant William Bryant appeals a decision of the Mahoning
County Common Pleas Court denying his second, successive petition for
postconviction relief. He argues that his sentence is void because the jury verdict
form did not state the degree of offense in violation of R.C. 2945.75(A)(2) and State
v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735.
        {¶2}     Bryant had an approximately nine year relationship with Jeanette
Thomas (hereinafter “Thomas”).1 The couple lived together in Thomas’ house and,
on occasion, fought. On January 2, 1998, a 911 call was placed from Thomas’
address. In that phone call, Thomas screamed that Bryant was killing her. The
dispatcher contacted the police and informed them of a stabbing in progress at
Thomas' address.            Upon arrival, the officers found Thomas in the bedroom
unconscious.
        {¶3}     Thomas suffered two main patterns of injury. There were multiple stab
wounds; five in her back and one in her left side. A knife blade was sticking out of
her back and a knife was sticking out of her side. Thomas also suffered fourteen
blunt impact injuries to her head and one blunt impact injury to her back with a curved
pattern causing fractures, brain damage and bleeding. A ball peen hammer with the
handle broken off was found next to her body. Thomas died at the hospital and the
coroner pronounced her death to be a homicide.
        {¶4}     Approximately half an hour later, Bryant placed a 911 call from his
sister’s home asking about Thomas’ condition. He said he had been in a fight with
Thomas and that he wanted to turn himself in. When officers arrived, Bryant came
out of the house with blood on his pants and jacket and was arrested and
Mirandized.
        {¶5}     Before Bryant was questioned by the police at the station he was
Mirandized again. During that videotaped questioning Bryant was cooperative and
gave a written statement. He claimed his actions were in self defense because of the
following events: While lying in bed together, Thomas, who was high on cocaine,

1. The underlying facts of this case are taken from this court’s opinion addressing Bryant’s direct
appeal in State v. Bryant, 7th Dist. No. 99 CA 135, 2001-Ohio-3466.
                                                                                   -2-


accused him of “messing around” with another woman in her presence. She then
grabbed a knife from the window sill above the bed and attempted to stab him.
Bryant was forced off the bed and into a corner with Thomas on top of him continuing
to stab at him. In response, Bryant grabbed two knives and a ball peen hammer off
the window sill to stab and hit her. It is Bryant's contention that while Thomas, 220
lbs., was on top of him, he reached around to stab her in the back and then hit her
with the hammer. Once Thomas moved away from him to call 911, Bryant went into
the bathroom to wash his hands and, listening to her phone call with 911 and
knowing “help” was on its way, he put his jacket on and departed.
        {¶6}   On May 18, 1999, following a jury trial, Bryant was found guilty of one
count of murder, in violation of R.C. 2903.02(A), and subsequently sentenced to
fifteen years to life imprisonment on May 21, 1999. This court affirmed Bryant’s
conviction upon direct appeal. State v. Bryant (Dec. 6, 2001), 7th Dist. No. 99-CA-
135. Bryant then filed an application with this court pro se, seeking to reopen his
appeal due to ineffective assistance of counsel at the appellate level, which was
denied on November 20, 2002. State v. Bryant, 7th Dist. No. 99-CA-135, 2002-Ohio-
6522.
        {¶7}   On June 26, 2003, Bryant, proceeding pro se, petitioned the Mahoning
County Common Pleas Court for postconviction relief. On February 25, 2004, the
court denied Bryant’s petition for failure to file the petition no later than 180 days after
the date on which the trial transcript was filed in the court of appeals in the direct
appeal of his conviction pursuant to R.C. 2953.21(A)(2). This court affirmed the trial
court’s decision denying the petition as untimely. State v. Bryant, 7th Dist. No. 04-
MA-109, 2005-Ohio-5054.
        {¶8}   On November 11, 2009, Bryant filed a pro se motion styled “MOTION
TO CORRECT VOID JUDGMENT AND RE-SENTENCING PURSUANT TO R.C.
2945.75(A)(2).” The trial court overruled the motion on December 17, 2009. This
appeal followed.
        {¶9}   Bryant, still proceeding pro se, sets forth three assignments of error.
                                                                                   -3-


Because they are interrelated, they will be addressed together.               They state,
respectively:
       {¶10} “DEFENDANT/APPELLANT WAS DENIED DUE PROCESS OF LAW
UNDER THE UNITED STATES CONSTITUTION, AMENDMENT 14, WHEN THE
TRIAL COURT DENIED HIM THE RELIEF HE SOUGHT FROM A VOID
JUDGMENT THAT DID NOT COMPLY WITH STATUTE 2945.75[.]”
       {¶11} “THE STATE COMMITTED PLAIN AND PREJUDICIAL ERROR WHEN
IT FAILED TO FOLLOW THAT MANDATE OF STATE V. PELFREY IN VIOLATION
OF APPELLANT’S CONSTITUTIONAL RIGHT TO FUNDAMENTALLY FAIR
PROCEEDINGS AND HIS RIGHTS TO BE SENTENCED IN COMPLIANCE WITH
ALL STATUTES.”
       {¶12} “IF THE COURT FINDS THAT THERE ARE INFERIOR DEGREES OF
AGGRAVATED MURDER, MURDER, AND VOLUNTARY MANSLAUGHTER, THEN
THE JUDGMENT OF APPELLANT IS VOID AND HE MUST BE REMANDED FOR
RESENTENCING ACCORDING TO STATE V. PELFREY[.]”
       {¶13} “Where a criminal defendant, subsequent to his or her direct appeal,
files a motion seeking vacation or correction of his or her sentence on the basis that
his or her constitutional rights have been violated, such a motion is a petition for
postconviction relief as defined in R.C. 2953.21.” State v. Reynolds (1997), 79 Ohio
St.3d 158, 679 N.E.2d 1131, syllabus.         Bryant’s motion fulfills the definition of a
petition for postconviction relief: (1) the motion was filed after his direct appeal; (2) he
seeks to vacate his sentence as void, and; (3) in the petition, he alleged that his
constitutional rights were violated and that the trial court sentenced him without
appropriate jurisdiction.    Therefore, Bryant’s motion is properly construed as a
petition for postconviction relief.
       {¶14} Next, this court must address the trial court’s jurisdiction to entertain the
merits of Bryant’s petition. The requirement that a petition for postconviction relief be
filed timely is jurisdictional. R.C. 2953.23(A) (“a court may not entertain a petition filed
after the expiration of the period prescribed [in R.C. 2953.21]”). Unless the petition is
                                                                                -4-


filed timely, the court is not permitted to consider the substantive merits of the
petition. State v. Beaver (1998), 131 Ohio App.3d 458, 461, 722 N.E.2d 1046 (the
trial court should have summarily dismissed appellant's untimely petition without
addressing the merits).
       {¶15} If a postconviction relief petition is filed beyond the 180-day time
limitation or the petition is a second or successive petition for postconviction relief,
R.C. 2953.23(A) precludes the court from entertaining the petition unless: (1) the
petitioner shows that he was unavoidably prevented from discovering the facts upon
which his claim for relief is based, or (2) after the 180-day time period expired, the
United States Supreme Court recognized a new federal or state right that applies
retroactively to the petitioner and is the basis of his claim for relief. R.C.
2953.23(A)(1)(a). The petitioner must then show “by clear and convincing evidence
that, but for constitutional error at trial, no reasonable fact finder would have found
[him] guilty of the offense of which [he] was convicted.” R.C. 2953.23(A)(1)(b).
       {¶16} Unless the defendant makes the showings required by R.C.
2953.23(A), the trial court lacks jurisdiction to consider either an untimely or a second
or successive petition for post-conviction relief. State v. Carter, 2d Dist. No. 03-CA-
11, 2003-Ohio-4838, citing State v. Beuke (1998), 130 Ohio App.3d 633, 720 N.E.2d
962.
       {¶17} In this case, Bryant's petition was unquestionably filed beyond the 180-
day time limit set forth in R.C. 2953.21. Bryant failed to allege any of the specifically
enumerated timeliness exceptions under R.C. 2953.23. Therefore, Bryant's petition
was untimely and the trial court was without jurisdiction to entertain it.
       {¶18} Even assuming his motion had been timely filed, the argument it
advanced is baseless. Pursuant to R.C. 2945.75(A)(2):
       {¶19} “When the presence of one or more additional elements makes an
offense one of more serious degree: * * * A guilty verdict shall state either the degree
of the offense of which the offender is found guilty, or that such additional element or
elements are present. Otherwise, a guilty verdict constitutes a finding of guilty of the
                                                                              -5-


least degree of the offense charged.”
      {¶20} “Pursuant to the clear language of R.C. 2945.75, a verdict form signed
by a jury must include either the degree of the offense of which the defendant is
convicted or a statement that an aggravating element has been found to justify
convicting a defendant of a greater degree of a criminal offense.” State v. Pelfrey,
112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735, syllabus.
      {¶21} In this case, contrary to Bryant’s argument, the jury’s verdict form was
proper. It is well recognized that “[a]ggravated murder and murder are considered
‘unclassified’ felonies, because they are not classified by degree of felony.” State v.
Wiley, 10th Dist. No. 03AP-340, 2005-Ohio-1008, citing State v. Hollingsworth
(2001), 143 Ohio App.3d 562, 567, 758 N.E.2d 713. It has also been held that the
terms “aggravated murder” and “murder” constitute a statement of the degree of the
offense for purposes of R.C. 2945.75(A). State v. Biros (Dec. 29, 1995), 11th Dist.
No. 91-T-4632,
      {¶22} Bryant was charged and convicted of murder in violation of R.C.
2903.02(A).   The verdict form clearly states that the jury found Bryant guilty of
murder. Therefore, the use of the word “murder” alone constitutes a statement of the
degree of the offense for purposes of R.C. 2945.75(A).
      {¶23} Accordingly, Bryant’s three assignments of error are without merit.
      {¶24} The judgment of the trial court is hereby affirmed.

Vukovich, P.J., concurs.

DeGenaro, J., concurs.
