[Cite as State v. Green, 2015-Ohio-4441.]


                                        COURT OF APPEALS
                                       KNOX COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. William B. Hoffman, J.
                         Plaintiff-Appellee    :       Hon. John W. Wise, J.
                                               :
-vs-                                           :
                                               :       Case No. 15-CA-13
SHANE L. GREEN                                 :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Knox County
                                                   Court of Common Pleas, Case No.
                                                   08CR01-0004

JUDGMENT:                                          Affirmed




DATE OF JUDGMENT ENTRY:                            October 23, 2015




APPEARANCES:


For Plaintiff-Appellee                             For Defendant-Appellant

CHARLES T. MCCONVILLE                              SHANE L. GREEN PRO SE
Knox County Prosecuting Attorney                   Marion Correctional Institution
117 East High Street, Ste. 234                     Box 57
Mount Vernon, OH 43050                             Marion, OH 43301
Knox County, Case No. 15-CA-13                                                             2

Gwin, P.J.

        {¶1}   Appellant appeals the April 3, 2015 judgment entry of the Knox County

Common Pleas Court treating his motion to vacate and dismiss void judgment as a

motion for post-conviction relief and denying the motion. Appellee is the State of Ohio.

                                   Facts & Procedural History

        {¶2}   Appellant Shane Green was indicted on January 8, 2008, by the Knox

County Grand Jury on one count of rape of a child under the age of ten, in violation of

R.C. 2907.02(A)(1)(b), a felony of the first degree, and one count of gross sexual

imposition, in violation of R.C. 2907.05(A)(4), a felony of the third degree. Appellant

was accused of raping his eight-year-old biological daughter.

        {¶3}   After a jury trial, appellant was convicted of both counts and sentenced to

a definite term of life imprisonment on Count One and a term of five years on Count

Two, with the terms to run consecutively. On June 18, 2008, appellant appealed his

conviction to this Court. In State v. Green, 5th Dist. Knox No. 08-CA-20, 2009-Ohio-

2065.    In this direct appeal, appellant argued as follows: (1) the indictment was

defective; (2) ineffective assistance of trial counsel; and (3) the mens rea in the jury

instructions was incorrect. The transcript was filed with this Court on July 28, 2008. On

May 1, 2009, this Court affirmed the judgment of the Knox County Court of Common

Pleas. Id.

        {¶4}   On March 11, 2015, appellant filed a motion to vacate and dismiss void

judgment. Appellant argued that the trial court lacked jurisdiction over him because he

was not sworn in under oath during the grand jury proceedings, the indictment was

defective, and the arrest warrant issued for him was not valid.          Appellee filed a
Knox County, Case No. 15-CA-13                                                         3


memorandum of objection on March 13, 2015. Appellant filed a rebuttal on March 26,

2015. On April 3, 2015, the Knox County Court of Common Pleas issued a judgment

entry denying appellant’s motion. The trial court treated the motion as a motion for

post-conviction relief due to the fact that appellant contends his constitutional rights

were violated. The trial court found appellant’s motion for post-conviction relief was

untimely and was barred due to res judicata.

       {¶5}   Appellant appeals the April 3, 2015 judgment entry of the Knox County

Court of Common Pleas and assigns the following as error:

       {¶6}   “I. THE TRIAL COURT ABUSED ITS DISCRETION BY NOT ORDERING

AN EVIDENTIAL HEARING ON A CHALLENGE OF JURISDICTION OF PERSONAM

AND SUBJECT-MATTER.

       {¶7}   "II. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING

DEFENDANT’S CHALLENGE OF JURISDICTION IN RESPONSE OF RULING

DEFENDANT’S        CHALLENGE         OF    JURISDICTION        AS    A   POST-CONVICTION

PETITION.”

                                                  II.

       {¶8}   For ease of discussion, we will first address appellant's second

assignment of error. Appellant claims the trial court erred and abused its discretion in

construing his motion as a petition for post-conviction relief. Instead, appellant argues

that he is challenging the jurisdiction of the trial court to convict him.

       {¶9}   Appellant cites to State v. Davies in support of his argument that his

challenge is one of subject matter jurisdiction. 11th Dist. Ashtabula No. 2012-A-0034,

2013-Ohio-436. Davies involved a subject matter jurisdiction challenge to a
Knox County, Case No. 15-CA-13                                                             4


misdemeanor conviction where the defendant was charged in a criminal complaint

subject to Criminal Rule 3. Id. However, Davies is distinguishable from the instant

case, as appellant was not charged in a criminal complaint subject to the requirements

of Criminal Rule 3, but he was indicted by a grand jury.

        {¶10} Although appellant couches his motion as a challenge to subject matter

jurisdiction, his motion must be treated as a petition for post-conviction relief, regardless

of the manner in which appellant actually presents the motion to the court.

        {¶11} A motion that is not filed pursuant to a specific rule of criminal procedure

"must be categorized by a court in order for the court to know the criteria by which the

motion should be judged." State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, 773

N.E.2d 522. Where a defendant, subsequent to a direct appeal, files a motion seeking

vacation or correction of his or her sentence on the basis that his or her constitutional

rights have been violated, such a motion is a petition for post-conviction relief as defined

by R.C. 2953.21. State v. Reynolds, 79 Ohio St.3d 158, 1997-Ohio-304, 679 N.E.2d

1131.

        {¶12} Appellant's motion satisfies this definition of a petition for post-conviction

relief. First, the motion was filed subsequent to appellant's direct appeal. Further, the

motion claims a denial of constitutional rights, as appellant alleges: that his 5th

Amendment rights were violated during grand jury testimony; that his indictment was

defective in violation of the Ohio Constitution, Section 10, Article 1; and that his arrest

warrant was invalid. In his motion, appellant specifically alleges violations of his rights

under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution and

under Section 10, Article 1 of the Ohio Constitution. Third, appellant seeks to have the
Knox County, Case No. 15-CA-13                                                                5


judgment rendered void. Fourth, appellant states that the remedy he seeks is to vacate

and dismiss the judgment.

       {¶13} Accordingly, the trial court properly construed appellant's motion as a

petition for post-conviction relief. See State v. King, 5th Dist. Muskingum No. CT2008-

0062, 2009-Ohio-412. Appellant's second assignment of error is overruled.

                                                   I.

       {¶14} Appellant contends that the trial court erred by denying his motion without

conducting an evidentiary hearing. We disagree. We apply an abuse of discretion

standard when reviewing a trial court's decision to deny a post-conviction relief petition

without a hearing. State v. Holland, 5th Dist. Licking No. 12-CA-56, 2013-Ohio-905. An

abuse of discretion connotes more than an error of law or judgment; it entails a decision

that is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio

St.3d 217, 450 N.E.2d 1140 (1983).

       {¶15} Under R.C. 2953.21, a petitioner seeking post-conviction relief is not

automatically entitled to an evidentiary hearing. State v. Calhoun, 86 Ohio St.3d 279,

714 N.E.2d 905 (1999). The Ohio Supreme Court has held that the proper basis for

dismissing a petition for post-conviction relief without holding an evidentiary hearing

includes: (1) the failure of the petitioner to set forth sufficient operative facts to establish

substantive grounds for relief, and (2) the operation of res judicata to bar the

constitutional claims raised in the petition. Id.; State v. Lentz, 70 Ohio St.3d 527, 639

N.E.2d 784 (1994). In this case, the record reflects that appellant failed to submit any

supporting affidavits or other evidentiary documents containing sufficient operative facts

to support any of the claims presented.
Knox County, Case No. 15-CA-13                                                                 6


       {¶16} Further, under the doctrine of res judicata, a defendant who was

represented by counsel is barred from raising an issue in a petition for post-conviction

relief if the defendant raised or could have raised the issue at trial or on direct appeal.

State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967); State v. Szefcyk, 77 Ohio

St.3d 93, 1996-Ohio-337, 671 N.E.2d 233.          The allegations appellant makes in his

petition concerning the grand jury proceeding, indictment defects, and arrest warrant

defects could all have been raised or were raised in his direct appeal. Therefore, the

trial court did not abuse its discretion in overruling appellant's motion without a hearing.

       {¶17} Finally, as appellant's motion is properly construed as a petition for post-

conviction relief, it is apparent that it should have been denied or dismissed without a

hearing because it was filed well beyond the time limits set by R.C. 2953.21. R.C.

2953.21 requires that a petition for post-conviction relief 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. In this case, the transcript

was filed with this Court on July 28, 2008. Appellant has made no attempt to show that

any of the exceptions to R.C. 2953.23(A)(1) applies to his untimely motion. When a

petition for post-conviction relief is filed untimely and does not meet the requirements of

R.C. 2953.23(A)(1), a trial court lacks jurisdiction to entertain the merits of the petition or

hold a hearing. State v. Lynn, 5th Dist. Muskingum No. CT2007-0046, 2008-Ohio-2149.

Accordingly, the trial court did not err in failing to conduct an evidentiary hearing on the

motion as it was untimely filed. Id.
Knox County, Case No. 15-CA-13                                                        7


      {¶18} The trial court did not abuse its discretion in denying appellant's motion

without conducting an evidentiary hearing.   Appellant's first assignment of error is

overruled.

      {¶19} Based on the foregoing, appellant's assignments of error are overruled.

The April 3, 2015 judgment entry of the Knox County Common Pleas Court is affirmed.



By Gwin, P.J.,

Hoffman, J., and

Wise, J., concur
