[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Nichols v. Eppinger, Slip Opinion No. 2016-Ohio-7367.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.


                          SLIP OPINION NO. 2016-OHIO-7367
THE STATE EX REL. NICHOLS, APPELLANT, v. EPPINGER, WARDEN, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
       may be cited as State ex rel. Nichols v. Eppinger, Slip Opinion No.
                                     2016-Ohio-7367.]
Habeas corpus—Petition fails to allege defect in sentencing court’s subject-matter
        jurisdiction—Court of appeals’ judgment affirming dismissal of petition
        affirmed.
     (No. 2015-1969—Submitted July 12, 2016—Decided October 19, 2016.)
     APPEAL from the Court of Appeals for Lorain County, No. 15CA010807.
                                 _____________________
        Per Curiam.
        {¶ 1} We affirm the Ninth District Court of Appeals’ dismissal of the
petition for a writ of habeas corpus filed by appellant, BreShaun Nichols. That
court correctly held that Nichols did not allege a defect in the subject-matter
jurisdiction of the sentencing court. Moreover, because Nichols was convicted of
attempted murder, not attempted felony murder, his petition also fails on the merits.
                             SUPREME COURT OF OHIO




       {¶ 2} Nichols is currently incarcerated in the Grafton Correctional
Institution. In 2009, a jury found him guilty of attempted murder and several other
offenses, including aggravated robbery. The trial court sentenced him to a ten-year
prison term for attempted murder and ordered that sentence to be served
consecutively with the sentences for his other convictions. Nichols appealed his
convictions, and the court of appeals affirmed. State v. Nichols, 9th Dist. Summit
No. 24900, 2010-Ohio-5737. Nichols then filed a petition for postconviction relief.
The court of common pleas dismissed the petition, and the court of appeals affirmed
the dismissal. State v. Nichols, 9th Dist. Summit No. 26923, 2014-Ohio-102.
       {¶ 3} Nichols now in this habeas corpus case argues for the first time that
he was convicted of attempted felony murder and that because we determined in
State v. Nolan, 141 Ohio St.3d 454, 2014-Ohio-4800, 25 N.E.3d 1016, that
attempted felony murder is not a crime in Ohio, the trial court lacked subject-matter
jurisdiction to convict him of that offense.
       {¶ 4} The court of appeals correctly dismissed Nichols’s petition because,
as it recognized in its opinion, we “treated the issue in Nolan as one of error that
could be voided on appeal rather than one of subject matter jurisdiction that resulted
in a void judgment.” In other words, we held in Nolan not that the trial court lacked
jurisdiction but that it had erred in exercising its jurisdiction. See Nolan at ¶ 3 and
10 (affirming court of appeals’ judgment remanding cause to trial court for further
proceedings). Because the trial court had jurisdiction over Nichols’s criminal case,
and because Nichols has not served his maximum term of imprisonment, habeas
relief is unavailable. Pence v. Bunting, 143 Ohio St.3d 532, 2015-Ohio-2026, 40
N.E.3d 1058, ¶ 9.
       {¶ 5} Moreover, even if we were to reach the substance of Nichols’s
argument, it is without merit. In Nolan, we noted that a person cannot commit an
attempt offense unless he or she has acted purposely or knowingly. Id. at ¶ 7. On
the other hand, we observed, the felony-murder statute imposes strict liability;




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                                January Term, 2016




intent to kill need not be proven to obtain a conviction for felony murder. Id. at
¶ 9, citing R.C. 2903.02(B). We therefore concluded in Nolan that a person cannot
be guilty of attempting to cause an unintended death. Id. at ¶ 10.
       {¶ 6} Count 3 of Nichols’s indictment alleged that he


       did commit the crime of ATTEMPTED MURDER in that he did
       purposely attempt to cause the death of [the victim], and/or did
       purposely attempt to cause the death of [the victim] as a proximate
       result of [Nichols] committing or attempting to commit Aggravated
       Robbery or Robbery, an offense of violence that is a felony of the
       first or second degree, and did engage in conduct that, if successful,
       would constitute or result in Murder, in violation of Section
       2903.02(A)/(B)/2923.02 of the Revised Code.


(Boldface and capitalization sic.) The jury ultimately found Nichols “GUILTY of
ATTEMPTED MURDER, as contained in Count 3 of the Indictment.”
(Capitalization sic.) Thus, Nichols was convicted of attempt to commit murder in
violation of R.C. 2903.02(A) “and/or” attempt to commit felony murder in violation
of R.C. 2903.02(B).
       {¶ 7} According to the Ninth District’s decision on direct appeal, however,
at Nichols’s trial, the victim testified that Nichols placed a gun to the back of the
victim’s head and pulled the trigger and that the gun had either run out of bullets or
misfired. State v. Nichols, 9th Dist. Summit No. 24900, 2010-Ohio-5737, at ¶ 55.
Therefore, there is no “intent” issue here as there was in Nolan—Nichols intended
to kill his victim by putting a gun to his head and pulling the trigger. Nichols cannot
argue that his conviction for attempted murder is void under Nolan, because he
clearly had the intent to murder the victim. He therefore committed—and was
convicted of—attempted murder.




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                            SUPREME COURT OF OHIO




                                                        Judgment affirmed.
       O’CONNOR, C.J., and PFEIFER, O’DONNELL, KENNEDY, FRENCH, and
O’NEILL, JJ., concur.
       LANZINGER, J., concurs in judgment only.
                              _________________
       BreShaun Nichols, pro se.
       Michael DeWine, Attorney General, and Jerri L. Fosnaught, Assistant
Attorney General, for appellee.
                              _________________




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