[Cite as State v. Bozek, 2016-Ohio-1305.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


STATE OF OHIO,                                  :      OPINION

                 Plaintiff-Appellee,            :
                                                       CASE NO. 2015-P-0018
        - vs -                                  :

LAWRENCE J. BOZEK,                              :

                 Defendant-Appellant.           :


Civil Appeal from the Portage County Court of Common Pleas, Case No. 2010 CR
0295.

Judgment: Reversed and remanded.


Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

Lawrence J. Whitney, Lawrence J. Whitney Co., L.P.A., 137 South Main Street, #201,
Akron, OH 44308 (For Defendant-Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Lawrence Bozek, appeals the judgment of the Portage County

Court of Common Pleas denying his second petition for post-conviction relief. At issue

is whether appellant’s conviction is void and, if so, what is the proper remedy? For the

reasons that follow, we reverse and remand.

        {¶2}     On May 4, 2010, appellant fired multiple shots from a semi-automatic

pistol at his wife, Melinda Bozek, striking her several times while holding her captive in

their home. While Melinda was trying to call 911 for help on her cell phone, appellant
shot her. In the process, he shot off the tips of two of her fingers. Further, while

restraining Melinda’s liberty, appellant terrorized her for hours. At one point during

Melinda’s ordeal, appellant stopped and left her. After this break in the violence, he

returned to the room in the house where he left Melinda. He shot her several more

times. When Melinda tried to leave the house, appellant shot her in the head and leg.

After shooting Melinda, appellant did not attempt to help her or call for medical

assistance.

       {¶3}   On May 13, 2010, appellant was charged in a two-count indictment with

attempted murder by purposely attempting to cause Melinda’s death, a felony of the first

degree, with a firearm specification (Count 1), and attempted murder by attempting to

cause Melinda’s death as a result of committing or attempting to commit felonious

assault, a felony of the first degree, with a firearm specification (Count 2). Appellant

pled not guilty and not guilty by reason of insanity.

       {¶4}   On June 14, 2010, appellant was charged in a supplemental indictment,

which reasserted the two counts in the original indictment and included five others:

Counts 3 and 4 charged appellant with two additional counts of attempted murder, each

with a firearm specification.   Counts 5 and 6 charged appellant with two counts of

felonious assault with a deadly weapon, to wit: a semi-automatic pistol, a felony of the

second degree, each with a firearm specification.          And, finally, Count 7 charged

appellant with kidnapping, a felony of the first degree, with a firearm specification. Once

again, appellant pled not guilty and not guilty by reason of insanity.

       {¶5}   On July 7, 2010, the trial court entered a judgment finding that the parties

stipulated to a psychiatric report concluding that appellant “is sane and was sane at the

time of the offense” and appellant “is competent to stand trial.”


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      {¶6}   Appellant’s maximum exposure as to Counts 1, 2, 3, and 4, each charging

attempted murder, was ten years on each plus three years for each specification. As to

Counts 5 and 6, felonious assault, the maximum exposure was eight years for each plus

three years for each specification.    And, as to Count 7, kidnapping, the maximum

exposure was ten years plus three years for the specification. Thus, appellant was

looking at seven counts with a potential maximum term of imprisonment of 87 years.

      {¶7}   On August 13, 2010, pursuant to the parties’ plea bargain, appellant pled

guilty to Count 1, attempted murder (committed purposely), and Count 2, attempted

murder (as a result of committing a felony), and to the firearm specification included in

each of these counts. As part of the plea bargain, the parties also entered a joint

sentencing agreement.

      {¶8}   In exchange for appellant’s guilty plea, the state agreed to move to nolle

the remaining counts.

      {¶9}   The trial court found appellant’s guilty plea to be voluntary; accepted the

plea; found appellant guilty; and dismissed the remaining counts pursuant to the state’s

motion.   Pursuant to the parties’ joint sentencing agreement, the court sentenced

appellant to a mandatory term of imprisonment of three years for each specification,

each term to be served consecutively to the other, for a total of six years of mandatory

actual incarceration.   The court also sentenced appellant to a definite term of

imprisonment of seven years for each count of attempted murder. These two seven-

year terms were to be served consecutively to each other and consecutively to the six-

year sentence for the specifications, for a total of 20 years in prison. Appellant did not

appeal his conviction or sentence.




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         {¶10} Seven months later, on March 18, 2011, the trial court entered a nunc pro

tunc sentencing entry, which restated the original sentence with greater specificity.

Appellant did not appeal that judgment either.

         {¶11} Eight months later, on November 23, 2011, appellant filed his first petition

for post-conviction relief. He argued his petition was untimely and that the court lacked

jurisdiction to address his petition unless he met the requirements of R.C. 2953.23(A).

In attempting to comply with that statute, appellant argued he was unavoidably

prevented from discovering facts on which he needed to rely to timely present his claim.

As to his substantive claim, appellant argued his trial attorney was ineffective because

he did not adequately advise him regarding his eligibility for judicial release.

         {¶12} Further, while appellant’s petition was pending in the trial court, on

December 1, 2011, 16 months after his conviction, appellant filed a motion for delayed

appeal in this court, attempting to appeal the trial court’s August 13, 2010 sentencing

entry.

         {¶13} In State v. Bozek, 11th Dist. Portage No. 2011-P-0101, 2012-Ohio-870,

discretionary appeal not allowed by the Supreme Court of Ohio at 2012-Ohio-3054, this

court denied appellant’s motion for delayed appeal. Bozek at ¶7.

         {¶14} Meanwhile, on December 5, 2014, the trial court held a status conference

on appellant’s petition for post-conviction relief.      At that conference, the parties

discussed State v. Nolan, 141 Ohio St.3d 454, 2014-Ohio-4800, in which the Supreme

Court of Ohio recently held that attempted felony murder is not a cognizable crime in

Ohio because it is impossible to commit. Id. at ¶5.

         {¶15} On December 9, 2014, the trial court granted appellant’s motion to

withdraw his petition for post-conviction relief.


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          {¶16} Two months later, on January 29, 2015, appellant filed his second petition

for post-conviction relief. In it, appellant incorporated his first petition by reference and

added a second claim for re-sentencing under Nolan, supra. The trial court overruled

the petition without a hearing. Appellant appeals the trial court’s judgment denying his

second petition for post-conviction relief, asserting three assignments of error. Because

the first and third assigned errors are related, they are considered together.         They

allege:

          {¶17} “[1.] The trial court erred in overruling appellant’s petition to vacate his

plea on its merits for reason [sic] that appellant did demonstrate an infringement of his

constitutional rights as to render the court’s judgment void or voidable.

          {¶18} “[3.] The trial court erred when it failed to resentence appellant for reason

[sic] that the appellant plead guilty to a crime that is not cognizable.”

          {¶19} In light of the Supreme Court’s holding in Nolan, supra, appellant argues

that his conviction of attempted felony murder in Count 2 of the indictment is void and

asks this court to set aside only that part of his sentence and to set this matter for re-

sentencing only on Count 1, attempted purposeful murder.

          {¶20} 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. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-
                4642, ¶27. 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. Id.
                (Emphasis added.) State v. Simpkins, 117 Ohio St.3d 420, 2008-
                Ohio-1197, ¶12.

          {¶21} Although the trial court had subject matter jurisdiction over the case,

because attempted felony murder is not a cognizable crime in Ohio, the trial court




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lacked authority to sentence appellant and to enter an order of conviction on Count 2.

Therefore, his conviction of that offense is void.

       {¶22} This court has held: “A void sentence ‘is not precluded from appellate

review by principles of res judicata, and may be reviewed at any time, on direct appeal

or by collateral attack.’” State v. Britta, 11th Dist. Lake No. 2011-L-041, 2011-Ohio-

6096, ¶14, quoting State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, paragraph one

of the syllabus. “‘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.’” State v. Bezak,

114 Ohio St.3d 94, 2007-Ohio-3250, ¶12, quoting Romito v. Maxwell, 10 Ohio St.2d

266, 267-268 (1967).

       {¶23} Because appellant’s sentence is void, the 180-day time limitation to file a

petition for post-conviction relief in R.C. 2953.21 did not begin to run and thus

appellant’s petition was not untimely. If a sentence is void, there is no final appealable

order and the 180-day period does not begin to run until a valid sentence is imposed.

See State v. Benford, 9th Dist. Summit No. 24828, 2010-Ohio-54, in which the court

held: “[B]ecause the trial court’s sentencing entry is void, there has been no judgment

from which [the defendant] could file a direct appeal. * * * The time period in which he

can file for post-conviction relief, therefore, has not begun to run.” Id. at ¶8. Further, a

trial court, when confronted with an untimely petition for post-conviction relief that

challenges a sentence that is void, must ignore the procedural irregularities of the

petition, vacate the void sentence, and resentence the defendant. State v. Dawson, 2d

Dist. Greene No. 2012-CA-54, 2013-Ohio-1817, ¶8. Thus, appellant’s argument that his

petition for post-conviction relief was not untimely is irrelevant.


                                              6
       {¶24} However, while we hold that appellant’s conviction is void, he is not

entitled to the relief he seeks. In the conclusion of appellant’s brief, he “asks that this

Court * * * [f]ind that Appellant’s plea to the Attempted Felony Murder in Count Two is a

nullity and that count two of the indictment is void and remand the case to the trial court

for resentencing on the one remaining count (Purposeful Murder) (sic) and the

accompanying Firearm Specification.” Thus, appellant asks that we find that only his

plea to attempted felony murder is void and that we remand for resentencing only on his

plea to attempted purposeful murder.

       {¶25} The Second District addressed this issue in State v. Peck, 2d Dist. Clark

No. 1221, 1978 Ohio App. LEXIS 11167 (Aug. 2, 1978), in which the court stated:

       {¶26}   When a plea is vacated * * *, the vacation and reversal is complete
               as to all portions of the bargain. Both the defendant and the State
               are in the same position as if no agreement had been made and
               as if no action had been taken by the trial court on the agreement.
               Where more than one separate offense is involved in the
               agreement, all so involved may be reinstated upon vacation of the
               agreement. Re-indictment by the grand jury is not necessary
               because upon vacation all are still pending. Id. at *3.

       {¶27} Thus, despite appellant’s request that we only find his plea to attempted

felony murder is void, appellant’s guilty plea is void in its entirety and vacated as to all

parts. On remand, the parties shall be in the same position as if no plea agreement had

been entered and the trial court had not taken any action on the plea, and all counts of

the indictment and the supplemental indictment shall be reinstated.

       {¶28} Appellant’s first and third assignments of error are sustained.

       {¶29} For his second assigned error, appellant alleges:

       {¶30} “The trial court erred when it failed to include in its order a finding of fact

and conclusion of law.”



                                             7
      {¶31} In light of our holding under appellant’s first and third assigned errors, his

second assignment of error is moot.

      {¶32} Appellant’s second assignment of error is overruled.

      {¶33} For the reasons stated in the opinion of this court, it is the judgment and

order of this court that the judgment of the Portage County Court of Common Pleas is

reversed, and this matter is remanded to the trial court for further proceedings

consistent with the opinion.



TIMOTHY P. CANNON, J.,

THOMAS R. WRIGHT, J.,

concur.




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