[Cite as State v. Jenkins, 2016-Ohio-5533.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                    :

                 Plaintiff-Appellee,              :
                                                                   No. 16AP-105
v.                                                :           (C.P.C. No. 06CR-1874)

Steven A. Jenkins,                                :        (REGULAR CALENDAR)

                 Defendant-Appellant.             :



                                          D E C I S I O N

                                     Rendered on August 25, 2016


                 On brief: Ron O'Brien, Prosecuting                Attorney,   and
                 Barbara A. Farnbacher, for appellee.

                 On brief: Steven A. Jenkins, pro se.

                   APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
        {¶ 1} Defendant-appellant, Steven A. Jenkins, appeals from a judgment of the
Franklin County Court of Common Pleas denying his "motion to vacate void sentence and
set aside unconstitutional plea." For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} On March 13, 2002, a Franklin County Grand Jury indicted appellant for
aggravated murder stemming from a fatal shooting during a robbery in 1980. Appellant
pleaded guilty to the charge of voluntary manslaughter, and the trial court convicted him
of that offense. On April 10, 2008, the trial court imposed the maximum sentence for the
offense of 7 to 25 years in prison.
        {¶ 3} On May 7, 2008, appellant filed a notice of appeal to this court from the
judgment of the trial court. Appellant also filed a motion to withdraw his guilty plea on
May 13, 2008. On July 9, 2008, the trial court denied appellant's motion to withdraw his
No. 16AP-105                                                                                 2


plea. Appellant did not file an appeal to this court from the trial court's July 9, 2008
decision. On July 15, 2008, appellant dismissed his appeal from his conviction and
sentence.
       {¶ 4} On December 24, 2015, appellant filed the instant "motion to vacate void
sentence and set aside unconstitutional plea." The motion alleges several grounds for
relief, including (1) "[t]his defendant did not have an impartial judge, resulting in
structural error," (2) due to appellant's documented mental illness, "[t]he plea tendered
was not made knowingly, voluntarily and intelligently making it unconstitutional," (3) the
statute of limitations barred his prosecution, and (4) "[t]rial counsel was ineffective falling
short of the 6th amendment." (Mot. to Vacate at 6, 8, and 14.)
       {¶ 5} On January 8, 2016, the state filed an "answer to petition and motion to
dismiss," wherein the state urged the trial court to treat appellant's motion as a petition
for postconviction relief, pursuant to R.C. 2953.23(J), and dismiss the petition as
untimely filed. The state argued alternatively that res judicata barred the grounds for
relief asserted in appellant's motion. On January 18, 2016, the trial court issued a
decision and entry construing appellant's motion as a petition for postconviction relief,
pursuant to R.C. 2953.23(A), and dismissing the petition as untimely filed.
       {¶ 6} Appellant timely appealed to this court from the decision of the trial court.
II. ASSIGNMENTS OF ERROR
       {¶ 7} Appellant assigns the following as error:
               [1.] The trial court erred in recasting this appellant's motion
               to correct void sentence as a post conviction to deny it on
               procedural grounds and applying the principals of res judicata
               when the motion advanced two jurisdictional challenges and
               obvious errors which by law can be raised at any time thus
               violating this appellant's constitutional right to a fair trial and
               the due process of law guaranteed by the 5th and 14th
               amendments of the US Constitution and the equivalent
               Articles and Sections of the Ohio Constitution.

               [2.] The trial court erred in not granting relief because it is
               clear that this defendant did not have an impartial judge at
               trial and sentencing which results in structural error and
               violates his rights to a fair trial and the due process of law
               under the 5th and 14th amendments of the US Constitution
No. 16AP-105                                                                             3


               and the equivalent Articles and Sections of the Ohio
               Constitution.

               [3.] The trial court erred in not granting relief on the claim
               the plea tendered was not possibly knowingly, voluntarily and
               intelligently made thus making it unconstitutional, violating
               this appellant's constitutional rights to a fair trial and the due
               process of law under the 5th and 14th amendments of the US
               Constitution and the equivalent Articles and Sections of the
               Ohio Constitution.

               [4.] The trial court erred in not granting relief on the statute
               of limitation claim. A conviction for voluntary manslaughter
               in 2006 stemming from an offense committed in 1980, when
               the corpus delecti was available in 1980, with no tolling
               provision available, was barred by the provisions of O.R.C.
               2901.13. Since no proper waiver was made to that defense,
               the sentencing court lacked the jurisdiction to impose a
               sentence in 2006 and the sentence is void as a matter of law.
               The trial court's refusal to grant relief violated this appellant's
               constitutional rights to the due process of law and a fair trial
               in the 5th and 14th amendments of the US copnstitution [sic]
               and the equivalent Articles and Sections of the Ohio
               Constitution.

               [5.] The trial court erred in not granting relief on this
               appellant's ineffective assistance of counsel claim as counsel
               at trial and sentencing was ineffective in numerous ways
               violating this appellant [sic] constitutional rights to a fair trial,
               effective assistance of couns [sic] and the due process of law
               under the 5th, 6th and 14th amendments of the US
               Constitution and the equivalent Articles and Sections of the
               Ohio Constitution.

III. LEGAL ANALYSIS
       A. First Assignment of Error
       {¶ 8} In appellant's first assignment of error, appellant argues that his
December 24, 2015 motion challenged the jurisdiction of the sentencing court and that
the trial court erred when it construed his motion as a petition for postconviction relief.
We disagree.
       {¶ 9}   Appellant first contends that the sentencing court did not have jurisdiction
to enter a judgment of conviction and sentence because the state obtained his conviction
No. 16AP-105                                                                              4


in violation of his constitutional rights under "the 5th and 14th amendments of the U.S.
Constitution and the equivalent Articles and Sections of the Ohio Constitution."
(Appellant's Brief at 6.) Because his motion challenges the sentencing court's jurisdiction,
appellant claims that his motion is not subject to the time limitations applicable to
postconviction relief. Appellant confuses the constitutional violations he alleges in his
motion with the lack of jurisdiction. Pursuant to R.C. 2901.11(A)(1), "[a] person is subject
to criminal prosecution and punishment in this state if * * * [t]he person commits an
offense under the laws of this state, any element of which takes place in this state."
Pursuant to R.C. 2931.03, "[t]he court of common pleas has original jurisdiction of all
crimes and offenses, except in cases of minor offenses the exclusive jurisdiction of which
is vested in courts inferior to the court of common pleas." None of the grounds for relief
listed in appellant's December 24, 2015 motion, if proven, would impact the jurisdiction
of the sentencing court over appellant's offense or of appellant's person. Thus, appellant's
contention that the sentencing court lacked jurisdiction is without merit.
       {¶ 10} Appellant next contends that the trial court erred when it construed his
motion as a petition for postconviction relief and dismissed the petition as untimely filed.
We disagree.
       {¶ 11} The right to seek postconviction relief is governed by R.C. 2953.21(A)(1)(a),
which provides in relevant part:
               Any person who has been convicted of a criminal offense * * *
               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 judgment or sentence or to
               grant other appropriate relief.

       {¶ 12} In State v. Coleman, 10th Dist. No. 03AP-219, 2003-Ohio-7234, appellant
filed a motion styled "Motion to Alter or Amend Judgment and Sentence and/or Motion
to Withdraw Plea and/or Motion for New Trial." Id. at ¶ 3. The trial court construed the
motion as a petition for postconviction relief and denied the motion as untimely filed. In
affirming the trial court's decision to construe the motion as a petition for postconviction
relief, this court stated the motion, "despite its caption, meets the definition of a motion
No. 16AP-105                                                                                             5


for postconviction relief set forth in R.C. 2953.21(A)(1), because it (1) was filed subsequent
to appellant's direct appeal, (2) claims a denial of constitutional rights, (3) seeks to render
the judgment void, and (4) asks for vacation of the judgment of sentence." Id. at ¶ 6,
citing State v. Reynolds, 79 Ohio St.3d 158, 160 (1997).
        {¶ 13} Here, appellant filed his "motion to vacate void sentence and set aside
unconstitutional plea" subsequent to his direct appeal, claims a denial of constitutional
rights, seeks to render the judgment void, and asks for vacation of the judgment of
sentence. Furthermore, because a portion of appellant's December 24, 2015 motion
seeks to vacate his conviction and sentence based on alleged constitutional violations that
are not evidenced in the trial court record, such relief is available only in the context of a
petition for postconviction relief. R.C. 2953.21(J);1 Coleman; Reynolds. Thus, the trial
court did not err in construing a portion of appellant's motion as a petition for
postconviction relief.
        {¶ 14} The trial court ruled that appellant's petition was untimely filed.                   R.C.
2953.21(A)(2) sets forth the time limitations for a motion for postconviction relief, in
relevant part, as follows:
                Except as otherwise provided in section 2953.23 of the
                Revised Code, a petition under division (A)(1) of this section
                shall be filed 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 or
                adjudication * * *. If no appeal is taken, except as otherwise
                provided in section 2953.23 of the Revised Code, the petition
                shall be filed no later than three hundred sixty-five days after
                the expiration of the time for filing the appeal.

        {¶ 15} Appellant does not argue that he filed his motion within the 360-day
window as required by R.C. 2953.21(A)(2). Nor has appellant made any claim that he can
satisfy either of the requirements of R.C. 2953.23(A)(1)(a) and (b) pertaining to a petition
filed after the expiration of the prescribed period.2 A trial court lacks jurisdiction to


1 R.C. 2953.21(J) states: "[s]ubject to the appeal of a sentence for a felony that is authorized by section

2953.08 of the Revised Code, the remedy set forth in this section is the exclusive remedy by which a person
may bring a collateral challenge to the validity of a conviction or sentence in a criminal case."
2 Pursuant to R.C. 2953.23, a court of common pleas may entertain an untimely filed petition for

postconviction relief only under the following circumstances:
No. 16AP-105                                                                                                 6


entertain an untimely petition for postconviction relief unless a petitioner demonstrates
that one of the exceptions in R.C. 2953.23(A) applies. State v. Lacking, 10th Dist. No.
14AP-691, 2015-Ohio-1715, citing State v. Tanksley, 10th Dist. No. 13AP-769, 2014-Ohio-
1194, ¶ 6, citing State v. Hollingsworth, 10th Dist. No. 08AP-785, 2009-Ohio-1753, ¶ 8.
See also State v. Sparks, 10th Dist. No. 12AP-1063, 2013-Ohio-3598, ¶ 10. Thus, the trial
court did not err when it dismissed a portion of appellant's December 24, 2015 petition as
untimely filed.
       {¶ 16} We note, however, that appellant's December 24, 2015 motion also alleges
that due to his documented mental illness, "[t]he plea tendered was not made knowingly,
voluntarily and intelligently making it unconstitutional." (Mot. to Vacate at 8.) The
Supreme Court of Ohio held in State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, that
R.C. 2953.21 and 2953.23 do not govern Crim.R. 32.1 post-sentence motions to withdraw
pleas. Id. at ¶ 1. In Bush, the court reasoned that, "[g]iven that a postsentence Crim.R.
32.1 motion is not collateral but is filed in the underlying criminal case and that it targets
the withdrawal of a plea, it is not a 'collateral challenge to the validity of the conviction or
sentence.' " (Emphasis sic.) Id. at ¶ 13, citing R.C. 2953.21(J). The court concluded that
postsentence motions to withdraw guilty pleas, pursuant to Crim.R. 32.1, exist
independent of postconviction relief petitions, and there is no particular timeliness
requirement for Crim.R. 32.1 motions. Id. at ¶ 14. Though " 'undue delay between the
occurrence of the alleged cause for withdrawal of a guilty plea and the filing of a motion
under Crim.R. 32.1 is a factor adversely affecting the credibility of the movant and
militating against the granting of the motion,' " there exists no particular temporal filing

       (A) Whether a hearing is or is not held on a petition filed pursuant to section 2953.21 of the
       Revised Code, a court may not entertain a petition filed after the expiration of the period
       prescribed in division (A) of that section or a second petition or successive petitions for
       similar relief on behalf of a petitioner unless division (A)(1) or (2) of this section applies: (1)
       Both of the following apply: (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. (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.
No. 16AP-105                                                                                7


requirement applicable to all Crim.R. 32.1 motions. Id., quoting State v. Smith, 49 Ohio
St.2d 261 (1967), paragraph three of the syllabus.
       {¶ 17} Accordingly, to the extent that appellant's December 24, 2015 motion
directly challenges the validity of his guilty plea, Bush requires that appellant's motion be
treated as a successive motion to withdraw his guilty plea, rather than a petition for
postconviction relief. Coleman at ¶ 9, citing Bush. Consequently, the time limits for filing
petitions for postconviction relief would not apply to this particular ground for relief.
       {¶ 18} Nevertheless, appellant argues in his first assignment of error that the trial
court erred when it concluded that res judicata barred the grounds for relief asserted in
his motion. Generally, the applicability of res judicata is a question of law, which an
appellate court reviews de novo. State v. Johnson, 5th Dist. No. 12 CA 19, 2013-Ohio-
1398. Because the state argued res judicata in opposition to appellant's December 24,
2015 motion and because appellant expressly raises the issue in his first assignment of
error, we will consider the applicability of res judicata.
       {¶ 19} "[I]n criminal cases res judicata generally bars a defendant from litigating
claims in a proceeding subsequent to the direct appeal 'if he or she raised or could have
raised the issue at the trial that resulted in that judgment of conviction or on an appeal
from that judgment.' " (Emphasis omitted.) State v. Anderson, 10th Dist. No. 15AP-897,
2016-Ohio-1089, ¶ 7, quoting State v. Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, ¶ 92.
The doctrine "prevents repeated attacks on a final judgment and applies to issues that
were or might have been previously litigated." State v. Sappington, 10th Dist. No. 09AP-
988, 2010-Ohio-1783, ¶ 10. Consequently, " '[r]es judicata * * * acts to bar raising issues
in a successive Crim.R. 32.1 motion to withdraw a plea of guilty where those issues could
have been raised in the prior Crim.R. 32.1 motion.' " State v. Tran, 10th Dist. No. 11AP-
146, 2012-Ohio-1072, ¶ 11, quoting State v. Ikharo, 10th Dist. No. 10AP-967, 2011-Ohio-
2746, ¶ 11, citing State v. Gallegos-Martinez, 5th Dist. No. 10-CAA-06-0043, 2010-Ohio-
6463, ¶ 12.
       {¶ 20} Appellant's December 24, 2015 "motion to vacate void sentence and set
aside unconstitutional plea" raises essentially the same issues previously considered and
rejected by the trial court in ruling on appellant's May 13, 2008 motion to withdraw his
guilty plea, including a claim by appellant that he was suffering from a debilitating mental
No. 16AP-105                                                                               8


illness at the time he entered his guilty plea. As noted above, the trial court denied
appellant's May 13, 2008 motion. Appellant did not appeal to this court from the trial
court decision.    Consequently, even if the trial court had construed appellant's
December 24, 2015 motion as a successive motion to withdraw his guilty plea pursuant to
Crim.R. 32.1, res judicata barred appellant from relitigating the validity of his guilty plea
for a second time in his December 24, 2015 motion. Tran; Ikharo; Gallegos-Martinez.
See also State v. Muhumed, 10th Dist. No. 11AP-1001, 2012-Ohio-6155, ¶ 12.
       {¶ 21} For the foregoing reasons, we find that the trial court properly construed a
portion of appellant's December 24, 2015 motion as a petition for postconviction relief
and dismissed the petition as untimely filed. Additionally, we find that res judicata barred
appellant from raising a successive challenge to the validity of his guilty plea in his
December 24, 2015 motion.         Accordingly, appellant's first assignment of error is
overruled.
       B. Second, Third, Fourth, and Fifth Assignments of Error
       {¶ 22} Appellant's remaining assignments of error challenge the trial court's failure
to consider the merits of the individual grounds for relief raised in his December 24, 2015
motion. Having determined that the trial court did not err when it construed a portion of
appellant's motion as a petition for postconviction relief and dismissed the petition as
untimely filed and having further determined that res judicata barred appellant from
raising a successive challenge to the validity of his guilty plea in his December 24, 2015
motion, appellant's remaining assignments of error are also without merit. Accordingly,
appellant's second, third, fourth, and fifth assignments of error are overruled.
IV. CONCLUSION
       {¶ 23} Having overruled appellant's five assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
                                                                        Judgment affirmed.

                       TYACK and LUPER SCHUSTER, JJ., concur.
                                ___________________
