[Cite as State v. Thomas, 2014-Ohio-64.]


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

STATE OF OHIO                                         C.A. No.      13CA010424

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
RICHARD J. THOMAS                                     COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
        Appellant                                     CASE No.   93CR043635

                                 DECISION AND JOURNAL ENTRY

Dated: January 13, 2014



        BELFANCE, Presiding Judge.

        {¶1}    Defendant-Appellant Richard Thomas appeals, pro se, from the entry of the

Lorain County Court of Common Pleas denying his “motion to correct illegal void sentence

pursuant to subject matter jurisdiction[.]” For the reasons set forth below, we affirm.

                                                 I.

        {¶2}    Mr. Thomas was indicted in April 1993 on one count of aggravated murder with

an accompanying capital specification and an accompanying firearm specification, one count of

attempted aggravated murder with an accompanying firearm specification, and one count of

having weapons under disability. Ultimately, Mr. Thomas pleaded guilty to the charges and

specifications. Mr. Thomas was sentenced to life with parole eligibility after serving 30 years

plus 3 years actual incarceration for the firearm specification for the aggravated murder

conviction, 10 to 25 years for the attempted murder conviction, and one and one half years for

the conviction for having weapons while under disability. Mr. Thomas failed to appeal his
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conviction. On June 10, 2013, Mr. Thomas filed a “motion to correct illegal void sentence

pursuant to subject matter jurisdiction[,]” in which he asserted that (1) the trial court erred in

accepting his plea without a written jury trial waiver; (2) the State failed to present sufficient

evidence to support a conviction for aggravated murder at sentencing; (3) the trial court erred in

failing to convene a three-judge panel to accept his plea or make findings; (4) the single judge

failed to make certain findings at his plea hearing; and (5) the trial court illegally sentenced him

to 10 to 25 years for the conviction of attempted aggravated murder. The trial court denied his

motion without a hearing.

       {¶3}    Mr. Thomas has appealed from that entry raising three assignments of error for

our review.

                                                II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN ACCEPTING APPELLANT’S PLEAS OF
       GUILTY BY A SINGLE JUDGE IN THE FOLLOWING RESPECTS[.]

       {¶4}    Mr. Thomas asserts in his first assignment of error that the trial court erred in

denying his motion to correct an illegal void sentence because the trial court erred in failing to

convene a three-judge panel and failing to have that panel make findings, that the single judge

erred in failing to make certain findings at his plea hearing, and that his sentence for attempted

aggravated murder is an illegal sentence. We do not agree.

       {¶5}    We begin by noting that Mr. Thomas’ entire motion was based on the premise

that certain errors by the trial court rendered its judgment void. This Court has previously stated

that “[a] defendant may challenge a void judgment at any time.” State v. Dawson, 9th Dist.

Summit No. 26500, 2013-Ohio-1767, ¶ 6. Thus, based upon the specific arguments advanced by
                                                 3


Mr. Thomas below, we consider whether the trial court committed reversible error in denying his

motion on the basis that the January 1994 judgment is void.

       {¶6}    To the extent that Mr. Thomas argues that the trial court’s judgment was void for

failure to convene a three-judge panel to accept his guilty plea to a capital offense and for failure

to have a three-judge panel make necessary findings, we find this contention without merit. The

Supreme Court of Ohio has held that “[t]he failure of a court to convene a three-judge panel, as

required by R.C. 2945.06, does not constitute a lack of subject-matter jurisdiction that renders

the trial court’s judgment void ab initio and subject to collateral attack in habeas corpus. It

constitutes an error in the court’s exercise of jurisdiction that must be raised on direct appeal.”

Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, syllabus; see also Kelley v. Wilson, 103

Ohio St.3d 201, 2004-Ohio-4883, ¶ 9-14 (“Therefore, despite our language in [State v. Green, 81

Ohio St.3d 100 (1998),] that the specified errors rendered the sentence ‘void,’ the judgment was

voidable and properly challenged on direct appeal. Consequently, any error by Kelley’s three-

judge panel [in failing to comply with Crim.R. 11 and R.C. 2945.06] was an error in the exercise

of its jurisdiction that is not cognizable in habeas corpus.”). Accordingly, even assuming Mr.

Thomas was entitled to have his guilty plea accepted by a three-judge panel and have that panel

make findings, such error would not render the trial court’s judgment void for lack of subject

matter jurisdiction. See Pratts at syllabus; Kelley at ¶ 9-14. Thus, the trial court did not err in

denying Mr. Thomas’ motion on this basis.

       {¶7}    To the extent Mr. Thomas asserted in his motion that the judgment was void

because the single judge failed to make required findings at his plea, we note that, even assuming

that such error rendered the judgment void, it appears that Mr. Thomas failed to provide a

transcript of his plea and/or sentencing hearing for the trial court to review, so the trial court
                                                4


could not even review the merits of Mr. Thomas’ argument. Thus, we cannot conclude the trial

court erred in overruling Mr. Thomas’ argument on that basis as Mr. Thomas failed to

demonstrate any error, let alone that the trial court acted without subject matter jurisdiction.

Moreover, Mr. Thomas has failed to include a transcript of his plea or sentencing hearing in the

record on appeal, so even assuming he had provided it for the trial court, we would be unable to

properly review his argument. See App.R. 9(B). Accordingly, we overrule his argument on that

basis.

         {¶8}   Mr. Thomas next asserts that the trial court erred in denying his motion because

his sentence for attempted aggravated murder was an illegal sentence rendering it void. Mr.

Thomas asserts that his sentence fell outside the range authorized by former R.C. 2929.11 and

should have been less than 10 to 25 years. However, Mr. Thomas’ sentence of 10 to 25 years for

attempted aggravated murder was within the permitted range. See former R.C. 2923.02(E);

former R.C. 2929.11(A), (B)(1). Accordingly, even assuming that sentencing Mr. Thomas

outside the permissible range would render his sentence void, Mr. Thomas has not demonstrated

such an error. See State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, ¶ 8. Thus, we cannot

say that the trial court erred in denying his motion on that basis. Mr. Thomas’ first assignment of

error is overruled.

                                 ASSIGNMENT OF ERROR II

         THIS IS A CASE OF GREAT GENERAL INTEREST[.] THE CLERK OF THE
         LORAIN COUNTY COMMON PLEAS COURT ROUTINELY FAILS TO
         PLACE A “TIME STAMP” SHOWING JOURNALIZATION BY THE CLERK
         OF COURT ON THE ENTRY AS REQUIRED BY CRIMINAL[] RULE 32(C).
                                                 5


                                  ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED WHEN IT PLACE[D] APPELLANT TWICE IN
       JEOPARDY FOR THE SAME OFFENSE IN VIOLATION OF THE FIFTH
       AND FOURTEENTH AMENDMENT OF THE UNITED STATES
       CONSTITUTION AND ARTICLE I, SECTION 10 OF OHIO CONSTITUTION.

       {¶9}    Mr. Thomas raises additional arguments in his second and third assignments of

error. However, we note that none of those arguments were raised in his motion in the trial

court. Accordingly, the trial court never had the opportunity to consider these arguments. We

decline to review these arguments in the first instance, but note that a cursory review of his

arguments reveals none that would render the trial court’s judgment void. See State v. Lanik, 9th

Dist. Summit Nos. 26192, 26224, 2013-Ohio-361, ¶ 12 (declining to review an argument the

defendant failed to make in a motion to suppress and instead made for the first time on appeal);

see also Dawson, 2013-Ohio-1767, at ¶ 6 (“The question of whether a judgment is void is

distinct from the question of whether it is a final, appealable order.”); State v. Marbury, 9th Dist.

Summit No. 26889, 2013-Ohio-5306, ¶ 4 (“This Court has held that a trial court’s failure to

merge allied offenses does not result in a void sentence.”) (Internal quotations and citations

omitted.). Thus, we overrule Mr. Thomas’ second and third assignments of error.

                                                III.

       {¶10} In light of the foregoing, we affirm the judgment of the Lorain County Court of

Common Pleas which denied Mr. Thomas’ motion to “correct illegal void sentence pursuant to

subject matter jurisdiction[.]”

                                                                                Judgment affirmed.




       There were reasonable grounds for this appeal.
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        We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, 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.




                                                     EVE V. BELFANCE
                                                     FOR THE COURT




WHITMORE, J.
CONCURS.

CARR, J.
CONCURRING IN JUDGMENT ONLY.

        {¶11} I would construe Thomas’ motion as a petition for post-conviction relief.

Thomas’ filing exceeded the 180-day limit prescribed by R.C. 2953.21(A)(2), and he has not

demonstrated that his petition falls within exceptions set forth in R.C. 2953.23(A)(1)/(2). Thus, I

would conclude that the trial court was without statutory authority to address the merits of the

petition.
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APPEARANCES:

RICHARD THOMAS, pro se, Appellant.

DENNIS P. WILL, Prosecuting Attorney, an NATASHA RUIZ GUERRIERI, Assistant
Prosecuting Attorney, for Appellee.
