[Cite as State v. Gibbs, 2015-Ohio-3215.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                      GEAUGA COUNTY, OHIO


STATE OF OHIO,                                  :       MEMORANDUM OPINION

                 Plaintiff-Appellee,            :
                                                        CASE NO. 2014-G-3232
        - vs -                                  :

RICHARD W. GIBBS,                               :

                 Defendant-Appellant.           :


Criminal Appeal from the Geauga County Court of Common Pleas, Case No. 06 C
000077.

Judgment: Appeal dismissed.


James R. Flaiz, Geauga County Prosecutor, and Nicholas A. Burling, Assistant
Prosecuting Attorney, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH
44024 (For Plaintiff-Appellee).

Richard W. Gibbs, pro se, PID: A530-087, London Correctional Institution, P.O. Box
69, 1580 State Route 56, SW, London, OH 43140 (Defendant-Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Richard W. Gibbs, appeals from the judgment of the Geauga

County Court of Common Pleas, denying his post-sentence motion to vacate void

sentence.” For the reasons discussed in this opinion, the appeal is dismissed.

        {¶2}     On July 11, 2005, appellant was indicted on 10 counts of gross sexual

imposition, in violation of R.C. 2907.05(A)(3), felonies of the third degree, for crimes he

allegedly committed between January 1, 1987 and December 31, 1989.               Appellant
pleaded not guilty to the charges. He eventually entered pleas of guilty on the first six of

the 10 counts. The trial court accepted the plea and nolled the remaining counts.

       {¶3}   Appellant was ultimately sentenced pursuant to the felony-sentencing

scheme in effect at the time the crimes were committed. Appellant received indefinite

terms of four to 10 years on counts one and two, to run concurrent to each other; four to

10 years on counts three and four, to run concurrent with each other, but consecutive to

counts one and two; and four to 10 years on counts five and six, to run concurrent with

each other, but consecutive to counts three and four. In total, appellant received an

aggregate prison term of 12-30 years. He was also classified as a sexual predator.

Appellant did not appeal his conviction.

       {¶4}   In February 2010, appellant filed a “motion to vacate a void sentence.”

The trial court denied the motion and appellant appealed the judgment to this court.

The appeal, however, was dismissed for failure to file a timely notice of appeal. See

State v. Gibbs, 11th Dist. Geauga No. 2010-G-2967, 2010-Ohio-2675, ¶10 (“Gibbs I”).

       {¶5}   Appellant then filed a “motion to dismiss the indictment” in September,

2012. The court denied the motion and appellant did not appeal that judgment.

       {¶6}   In October 2012, appellant filed a “motion to withdraw his guilty plea.” The

court denied the motion. Appellant appealed and, in State v. Gibbs, 11th Dist. Geauga

No. 2012-G-3123, 2014-Ohio-1341 (“Gibbs II”), this court affirmed the trial court’s

judgment.

       {¶7}   On April 22, 2014, appellant moved this court for leave to file a delayed

appeal of his May 18, 2007 judgment of conviction. This court denied the motion and

dismissed the appeal. See State v. Gibbs, 11th Dist. Geauga No. 2014-G-3201, 2014-

Ohio-5772 (“Gibbs III”).


                                             2
       {¶8}    Also in April 2014, appellant filed a “motion for relief from judgment

pursuant to Civ.R. 60(B)” in the trial court. The trial court construed the motion as a

petition for post-conviction relief and denied the same. Appellant appealed and, in State

v. Gibbs, 11th Dist. Geauga No. 2014-G-3213, 2014-Ohio-5773 (“Gibbs IV”), this court

affirmed the trial court.

       {¶9}    During the pendency of Gibbs IV, appellant filed the underlying “motion to

vacate void sentence,” which the trial court denied.       Appellant subsequently filed a

notice of appeal from the trial court’s denial of this motion. On October 17, 2014,

appellee, the state of Ohio, moved to dismiss the instant appeal.           The state later

renewed the motion on December 16, 2014.

       {¶10} The state’s first motion to dismiss was premised upon its argument that,

because the issue being appealed is barred, in its view, by res judicata, the matter

should be dismissed. The state’s second motion was based upon the state’s assertion

that the trial court lacked jurisdiction to rule on the subject motion because its action

was not prompted by a remand order from this court.

       {¶11} Preliminarily, the doctrine of res judicata is not jurisdictional. See e.g.

Gahanna v. Petruziello, 10th Dist. Franklin No. 03AP-360, 2004-Ohio-2133, ¶14.

Accordingly, the operation of the doctrine is not a basis for dismissal of an appeal.

       {¶12} That said, however, when an appeal is taken from a trial court’s judgment,

the trial court is divested of jurisdiction, except to take action in aid of that appeal. See

e.g. State ex rel. Special Prosecutors v. Judges, Court of Common Pleas, 55 Ohio St.2d

94, 97 (1979). Moreover, it is well settled that once an appeal is perfected, a trial court

retains jurisdiction over issues “not inconsistent with the appellate court’s jurisdiction to




                                             3
reverse, modify, or affirm the judgment appealed from.” In re S.J., 106 Ohio St.3d 11,

2005-Ohio-3215, ¶9.

       {¶13} With these points in mind, contrary to the state’s assertion in its second

motion, a court does not necessarily lack subject matter jurisdiction to enter judgment

on a post-conviction motion simply because it was not ordered to do so by a superior

court. Here, however, an appeal was actually pending in this court when the trial court

denied appellant’s “motion to vacate void sentence.” The issue on appeal was whether

the trial court erred in overruling appellant’s Civ.R. 60(B) motion for relief from

judgment. See Gibbs, IV.     The substantive issue in that case was whether appellant’s

due process rights were violated when the state purportedly prosecuted him outside the

statute of limitations. By ruling on appellant’s “motion to vacate void sentence,” the trial

court acted in a manner inconsistent with this court’s ability to affirm, reverse, or modify

the underlying judgment of conviction at issue in the pending appeal.        We therefore

conclude the trial court lacked jurisdiction to rule on the “motion to vacate void

sentence,” and its September 24, 2014 judgment, from which the instant appeal was

taken in Case Number 2014-G-3232, is void.

       {¶14} Because the underlying notice of appeal was taken from a void judgment,

it is not premised upon a final appealable order. This appeal is accordingly dismissed.



TIMOTHY P. CANNON, P.J., concurs,

COLLEEN MARY O’TOOLE, J., concurs with a Concurring Opinion.

                                _____________________




                                             4
COLLEEN MARY O’TOOLE, J., concurs with a Concurring Opinion.


       {¶15} I concur with the majority’s holding that this appeal was taken from a void

judgment and not premised upon a final appealable order. I write separately to note

that appellant has never had his case reviewed on direct appeal. See State v. Gibbs,

11th Dist. Geauga No. 2014-G-3201, 2014-Ohio-5772 (O’Toole, J., dissenting). The

majority has succinctly outlined all the various appeals that appellant has filed with this

court. Appellant continues to file multiple motions with the trial court and appeals with

this court all essentially seeking the same thing: appellate review of his conviction.

       {¶16} The Staff Note to the 1994 Amendment to App.R. 5(A) warns of the

subsequent litigation that can occur when appellants are denied review of their cases.

The Staff Note provides in part:

       {¶17} “Although there was also concern about the fairness of requiring usually

indigent, and frequently unrepresented, criminal defendants to demonstrate (often

without the benefit of a transcript) the probability of error, the primary reason for this

amendment is judicial economy. Denial of leave to file a delayed appeal for failure to

demonstrate the probability of error usually leads to subsequent litigation of the issue by

direct appeals to the Ohio and United States Supreme Courts, petitions to vacate

sentence under R.C. 2953.21 et seq., and appeals thereon, and/or federal habeas

corpus petitions and appeals. Review of the merits by the courts of appeals upon the

initial (albeit delayed) appeal would thus avoid the presentation of the probability of error

issue to as many as nine subsequent tribunals.”

       {¶18} Denied review of the merits of his case, appellant continues to file motions

with the trial court and subsequent appeals with this court, all at the taxpayer’s expense.

As I have noted in my prior writings in “Gibbs III” and “Gibbs IV” it would have been far

                                             5
more cost effective for this court to have granted appellant’s motion for leave to file a

delayed appeal; consider any such alleged errors he might raise and bring this matter to

a quick and final close. This would avoid future filings by appellant in the trial court and

further subsequent appeals (such as the present case) to this court.       There are times

when judicial economy dictates appellate review.         This would also insure that the

lengthy and expensive period of incarceration currently being served by appellant

(again, at the taxpayer’s expense) is correct, and free of reversible error.




                                             6
