[Cite as State v. Smith, 2019-Ohio-1979.]


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

STATE OF OHIO                                         C.A. No.    29241

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
DEMICO L. SMITH                                       COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR-2011-12-3560-B

                                 DECISION AND JOURNAL ENTRY

Dated: May 22, 2019



        CALLAHAN, Presiding Judge.

        {¶1}     Appellant, Demico Smith, appeals an order that denied his “Motion to Vacate

Void Judgement [sic] for Lack of Subject Matter Jurisdiction.” This Court affirms.

                                                 I.

        {¶2}     In 2013, Mr. Smith pleaded guilty to aggravated burglary in violation of R.C.

2911.11(A)(2); aggravated robbery in violation of R.C. 2911.01(A)(1), with an accompanying

firearm specification; aggravated robbery in violation of R.C. 2911.01(A)(1); and kidnapping in

violation of R.C. 2905.01(A)(1). On February 6, 2013, the trial court sentenced him to a total

prison term of eight years. Mr. Smith did not file an appeal. On September 19, 2018, Mr. Smith

filed a “Motion to Vacate Void Judgement [sic] for Lack of Subject Matter Jurisdiction,” in

which he argued that the prosecution of his criminal case never commenced in accordance with

Crim.R. 6(F). The trial court denied his motion, and Mr. Smith filed this appeal. His two

assignments of error are rearranged to facilitate disposition.
                                                  2


                                               II.

                             ASSIGNMENT OF ERROR NO. 2

       THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING [MR.
       SMITH’S] MOTION TO VACATE VOID JUDGMENT FOR LACK OF
       SUBJECT MATTER JURISDICTION WHEN IT MISJUDGED [HIS]
       ARGUMENT THAT THE INDICTMENT WAS NEVER RETURNED TO A
       COMMON PLEAS COURT JUDGE AS AN ATTACK ON THE
       SUFFICIENCY OF THE INDICTMENT, THUS, DENYING HIS CHALLENGE
       ON SUBJECT MATTER JURISDICTION.

       {¶3}   Mr. Smith’s first assignment of error argues that the trial court erred by denying

his post-sentence motion. This Court disagrees.

       {¶4}   This Court must first consider the nature of the motion at issue in this appeal.

R.C. 2953.21(A)(1)(a) provides:

       Any person who has been convicted of a criminal offense or adjudicated a
       delinquent child 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 judgment or sentence or to grant other
       appropriate relief.

Faced with an irregular motion, this Court may construe the motion “into whatever category

necessary to identify and establish the criteria by which the motion should be judged.” State v.

Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, ¶ 12. “A vaguely titled motion, including a motion

to correct or vacate a judgment or sentence,” may be treated as a petition for postconviction

relief under R.C. 2953.21(A)(1) when “(1) the motion was filed subsequent to a direct appeal, (2)

claimed a denial of constitutional rights, (3) sought to render the judgment void, and (4) asked

for a vacation of the judgment and sentence.” State v. Davis, 9th Dist. Medina No. 15CA0004-

M, 2015-Ohio-5182, ¶ 6, citing State v. Reynolds, 79 Ohio St.3d 158, 160 (1997). Because a

defendant can file a petition for postconviction relief without pursuing a direct appeal, “[i]t
                                                 3


follows that when a motion claims a denial of constitutional rights, seeks recognition that the

judgment is void, and requests that the judgment and sentence be vacated, the motion may be

construed as a petition for postconviction relief regardless of whether the defendant pursued a

direct appeal.” State v. Walker, 9th Dist. Summit No. 29151, 2019-Ohio-605, ¶ 7.

       {¶5}    In his motion, Mr. Smith went to great lengths to emphasize that it should not be

treated as a petition for postconviction relief. The manner in which a defendant captions or

classifies a filing, however, is not controlling: the classification of a motion rests on the type of

relief it seeks to obtain. See State v. Fryer, 5th Dist. Perry No. 18-CA-00005, 2018-Ohio-3024, ¶

20 (observing that the caption of a pro se pleading “[did] not conclusively define the nature of

the pleading.”). Compare Lingo v. State, 138 Ohio St.3d 427, 2014-Ohio-1052, ¶ 38, citing State

ex rel. Zupancic v. Limbach, 58 Ohio St.3d 130, 132 (1991); State v. Davidson, 17 Ohio St.3d

132, 135 (1985); Dept. of Natural Resources v. Ebbing, 3d Dist. Mercer No. 10-13-24, 2015-

Ohio-471, ¶ 83, fn. 17. Motions that raise similar arguments have been characterized by other

courts as petitions for postconviction relief, and this Court agrees with that classification. See

Fryer at ¶ 22-27; State v. Barnette, 7th Dist. Mahoning No. 17 MA 0027, 2017-Ohio-9074, ¶ 1,

7-9; State v. Ali, 8th Dist. Cuyahoga No. 105534, 2017-Ohio-6894, ¶ 4-6.1 Although the trial

court rejected Mr. Smith’s motion without determining whether it should have been classified as

a petition for postconviction relief, this Court concludes that it is properly treated as such. See

State v. Cline, 2d Dist. Champaign No. 2013 CA 51, 2014-Ohio-4503, ¶ 7.




       1
        Courts have also concluded that the alleged failure to comply with the requirements of
Crim.R. 6(F) is unrelated to subject matter jurisdiction. See State v. Rickard, 6th Dist. Lucas No.
L-16-1043, 2016-Ohio-4755, ¶ 11-12; State v. Caldwell, 9th Dist. Summit No. 27003, 2014-
Ohio-1032, ¶ 8-10 (both concluding that the alleged lack of a signature by the grand jury
foreman under Crim.R. 6(F) was not a matter of subject matter jurisdiction.).
                                                     4


           {¶6}     R.C. 2953.21(A)(2) provides that a petition for postconviction relief must be filed

within 365 days of the date on which the transcript is filed in a direct appeal or, if no direct

appeal is taken, within 365 days of the expiration of the time for filing an appeal. A trial court

may only entertain an untimely petition if

           “the petitioner shows that [he] was unavoidably prevented from discovery of the
           facts upon which [he] must rely to present the claim for relief,” or, subsequent to
           the period prescribed in Section 2953.21(A)(2), “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.”

(Alterations in original.) State v. Wesson, 9th Dist. Summit No. 28412, 2018-Ohio-834, ¶ 8,

quoting R.C. 2953.23(A)(1)(a). A petitioner, other than one who challenges a sentence of death,

must also demonstrate 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.” R.C. 2953.23(A)(1)(b). A trial court does not have jurisdiction to

hear an untimely petition for postconviction relief unless the requirements of R.C. 2953.23(A)

are met. State v. Daniel, 9th Dist. Summit No. 26670, 2013-Ohio-3510, ¶ 9.

           {¶7}     Mr. Smith’s sentencing entry was dated February 6, 2013. He did not file a direct

appeal, so under R.C. 2953.21(A)(2), he had until March 7, 2014, to petition for postconviction

relief.2       Mr. Smith filed his petition on September 19, 2018, more than four years after that

deadline passed. He did not demonstrate by clear and convincing evidence that the requirements

of R.C. 2953.23(A)(1) were met and, consequently, the trial court did not have jurisdiction to

entertain his untimely petition. See Daniel at ¶ 9.        Mr. Smith’s second assignment of error is

overruled.




           2
               This Court notes that March 7, 2014, was a Saturday. See generally R.C. 1.14; Civ.R.
6(A).
                                                 5


                              ASSIGNMENT OF ERROR NO. 1

       THE TRIAL COURT ERR[ED] IN DENYING [MR. SMITH’S] MOTION TO
       VACATE VOID JUDGMENT FOR LACK OF SUBJECT MATTER
       JURISDICTION WHEN IT DID NOT ACKNOWLEDGE OR CONSIDER [HIS]
       MOTION IN OPPOSITION TO THE STATE’S MEMORANDUM, IN
       VIOLATION OF THE DUE PROCESS CLAUSE AND EQUAL PROTECTION
       CLAUSE GROUNDED IN THE FOURTEENTH AMENDMENT.

       {¶8}    Mr. Smith’s first assignment of error argues that the trial court erred by denying

his motion without giving due consideration to the reply brief that he filed in response to the

State’s brief in opposition. The trial court did not have jurisdiction to consider his motion in the

first instance because it was properly classified as an untimely petition for postconviction relief,

so his first assignment of error is moot. See App.R. 12(A)(1)(c).

                                                III.

       {¶9}    Mr. Smith’s second assignment of error is overruled. His first assignment of error

is moot. The judgment of the Summit County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, 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
                                                6


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.




                                                    LYNNE S. CALLAHAN
                                                    FOR THE COURT



CARR, J.
HENSAL, J.
CONCUR.


APPEARANCES:

DEMICO L. SMITH, pro se, Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting, Attorney, for Appellee.
