       [Cite as State v. Parks, 2012-Ohio-3010.]




                         STATE OF OHIO, COLUMBIANA COUNTY

                                  IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT


STATE OF OHIO,                                     )
                                                   )      CASE NO.      11 CO 20
       PLAINTIFF-APPELLEE,                         )
                                                   )
       - VS -                                      )      OPINION
                                                   )
JAMES PARKS,                                       )
                                                   )
       DEFENDANT-APPELLANT.                        )


CHARACTER OF PROCEEDINGS:                              Criminal Appeal from Common Pleas
                                                       Court, Case No. 03CR227.


JUDGMENT:                                              Affirmed.


APPEARANCES:
For Plaintiff-Appellee:                                Attorney Robert Herron
                                                       Prosecuting Attorney
                                                       Attorney Timothy McNicol
                                                       Assistant Prosecuting Attorney
                                                       105 South Market Street
                                                       Lisbon, Ohio 44432


For Defendant-Appellant:                               James Parks, Pro se
                                                       #463-038
                                                       Trumbull Correctional Institution
                                                       P.O. Box 901
                                                       Leavittsburg, Ohio 44430


JUDGES:
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
                                                     Dated: June 18, 2012
VUKOVICH, J.



        {¶1}    Defendant-appellant         James      Parks     appeals     the    decision     of   the
Columbiana County Common Pleas denying his motion to vacate a void judgment. He
argues that a new statute dealing with police procedures in administering photographic
line-ups shows that the line-up used in his case was faulty and that this would void his
conviction. However, the statute does not apply retroactively, and a line-up issue
would not cause a trial court to lose jurisdiction. Moreover, appellant’s motion was
essentially an untimely post-conviction petition, and any issues with the photographic
array could have been raised earlier. Accordingly, the trial court’s judgment is upheld.
                                   STATEMENT OF THE CASE
        {¶2}    On May 5, 2003, a witness called the police to report that, while
investigating a possible trespass in a field in Lisbon, he saw a man in a blue truck
pulling up his pants and then saw a young boy with blond hair raise his head from the
man’s lap.       The witness tried to corner and then follow the vehicle but was
unsuccessful. He immediately filed a police report, describing the man, the truck, and
the boy. The next day, he spotted the truck in Rogers and recorded the license plate
number. This witness later identified appellant from a photographic array presented to
him on May 12, 2003.
        {¶3}    As a result, investigations ensued in Columbiana and Carroll Counties,
and indictments were returned in both counties. In February of 2004, a Columbiana
County jury convicted appellant of one count of rape of an eight-year-old boy in
violation of R.C. 2907.02(A)(1)(b) with an age and a force specification.                       He was
sentenced to life in prison on this offense.1 He filed an appeal, and his conviction was
affirmed. State v. Parks, 7th Dist. No. 04CO19, 2005-Ohio-6926. A petition for post-
conviction relief was denied by the trial court in 2008.
        {¶4}    On May 17, 2011, appellant filed what he termed a “motion to void
judgment invoking R.C. 2953.23.” He argued that a newly enacted statute on police

        1
         Thereafter, he pled guilty to six counts of rape in Carroll County and was sentenced to life with
a possibility of parole after a total of twenty years.
procedures for line-ups was violated as no methods to avoid suggestiveness were
implemented, such as a blind line-up where the administrator does not know which
photograph is that of the suspect. Appellant attached a few pages of the transcript
from his trial. The first three pages contain the testimony of a sergeant who said that
he showed the victim the photo array on May 12, 2003, that a detective provided him
with the photo array, that he did not know who appellant was when he showed the
witness the array, and that the witness immediately pointed out appellant’s picture.
The last page was the testimony of a detective who said that the line-up had already
been performed when he received the case on June 2.
       {¶5}   On June 2, 2011, the trial court denied appellant’s motion. The court
concluded that the motion was a petition for post-conviction relief, that it lacked
specificity, and that it did not meet the requirements for an untimely petition. Appellant
filed a timely notice of appeal. (A similar issue is raised in an appeal from a parallel
motion filed in the Carroll County case in 7th Dist. No. 11CA73).
                                ASSIGNMENT OF ERROR
       {¶6}   The sole assignment of error set forth in appellant’s pro se brief provides:
       {¶7}   “THE TRIAL COURT ERRED BY DISMISSING APPELLANTS VOID
JUDGMENT UNDER SENATE BILL 77 ENACTMENT INCORPORATED IN R.C. §
2933.83    VIOLATING         APPELLANTS      RIGHTS     UNDER       THE    SIXTH     AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND
ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION.”
       {¶8}   On July 6, 2010, a new statute on line-ups went into effect.           R.C.
2933.83(B). This statute provides: “Prior to conducting any live lineup or photo lineup
on or after the effective date of this section, any law enforcement agency or criminal
justice entity in this state that conducts live lineups or photo lineups shall adopt
specific procedures for conducting the lineups.” R.C. 2933.83(A).
       {¶9}   The statute then lists the minimum requirements to be contained within
the adopted procedures. For instance, a blind or blinded administrator shall be used
unless impracticable in which case the administrator shall state in writing the reason
for that impracticability.   R.C. 2933.83(B)(1)-(3).   Moreover, the administrator shall
keep a written record containing the results signed by the eyewitness, confidence
statements of the witness, the names of all present, the date and time, any
identification of a filler, the names of the fillers, and the sources of pictures. R.C.
2933.83(B)(4).    In addition, if a blind administrator is conducting the lineup, the
administrator shall inform the eyewitness that the suspect may or may not be in the
lineup and that the administrator does not know who the suspect is.                  R.C.
2933.83(B)(5). The statute continues:
       {¶10} “(C) For any photo lineup or live lineup that is administered on or after
the effective date of this section, all of the following apply:
       {¶11} “(1) Evidence of a failure to comply with any of the provisions of this
section or with any procedure for conducting lineups that has been adopted by a law
enforcement agency or criminal justice agency pursuant to division (B) of this section
and that conforms to any provision of divisions (B)(1) to (5) of this section shall be
considered by trial courts in adjudicating motions to suppress eyewitness identification
resulting from or related to the lineup.
       {¶12} “(2) Evidence of a failure to comply with any of the provisions of this
section or with any procedure for conducting lineups that has been adopted by a law
enforcement agency or criminal justice agency pursuant to division (B) of this section
and that conforms to any provision of divisions (B)(1) to (5) of this section shall be
admissible in support of any claim of eyewitness misidentification resulting from or
related to the lineup as long as that evidence otherwise is admissible.
       {¶13} “(3) When evidence of a failure to comply with any of the provisions of
this section, or with any procedure for conducting lineups that has been adopted by a
law enforcement agency or criminal justice agency pursuant to division (B) of this
section and that conforms to any provision of divisions (B)(1) to (5) of this section, is
presented at trial, the jury shall be instructed that it may consider credible evidence of
noncompliance in determining the reliability of any eyewitness identification resulting
from or related to the lineup.
       {¶14} “(D) The requirements in this section regarding the procedures for live
lineups or photo lineups conducted by a law enforcement agency or criminal justice
entity do not prohibit a law enforcement agency or criminal justice entity from adopting
other scientifically accepted procedures for conducting live lineups or photo lineups
that the scientific community considers more effective.” R.C. 2933.83.
      {¶15} Appellant claims that this statute was not followed. Appellant presented
the sergeant’s testimony showing that the line-up was a blind line-up as he did not
prepare the line-up and did not recognize anyone on the line-up and did not know
which picture was appellant. Appellant believes this testimony is incorrect, and he
attaches to his brief an April 29, 2003 police report stating that the sergeant spoke to
appellant “via public service” about a visitation transfer issue. Initially, we note that
briefly speaking to a person “via public service” would not mean that the sergeant
falsely testified that he did not recognize anyone on the line-up. We also point out that
appellant’s brief claims that the incident report shows that appellant met with the
sergeant on May 1, 2003 to discuss the complaint he wanted filed. However, the
incident report does not mention any such meeting.
      {¶16} In any event, this report was not attached to his petition or mentioned in
the trial court filings (as it was in the Carroll County proceeding in his reply to the
state’s response).    Nor was it part of the trial record; the only incident report
represented by an exhibit is that regarding the witness who saw the child raising his
head from appellant’s lap.    See Defendant’s Exhibit A.      Thus, the incident report
regarding appellant’s reporting a custody issue is not properly before us as an
attachment to his appellate brief. See State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d
500 (1978), paragraph one of the syllabus.
      {¶17} Plus, contrary to appellant’s suggestion, the statute does not provide for
automatic exclusion of a line-up conducted in a manner different than that provided
thereunder. For instance, it provides that the court hearing a suppression motion
“shall consider” the failure to follow the statute and that evidence of a failure is
admissible for a jury’s consideration. See R.C. 2933.83(C). It does not void a line-up
(or a subsequent conviction for that matter).
      {¶18} In any event, by its very terms, this statute, effective July 6, 2010, is not
retroactive. Twice it states that it applies to lineups administered “on or after the
effective date of this section.” R.C. 2933.83(A), (C). Thus, it cannot be utilized by
appellant to invalidate a 2003 line-up. See State v. Humberto, 10th Dist. No. 10AP-
527, 2011-Ohio-3080, ¶ 50 (holding that R.C. 2933.83 does not control identifications
prior to its effective date); State v. Smith, 8th Dist. No. 95243, 2011-Ohio-3051, ¶ 43
(defendant's reliance on the procedures set forth in R.C. 2933.83 found to be
misplaced as those provisions were not in effect when the police presented the photo
array). See also Jones v. Warden, S.D. Ohio No. 1:09CV158, at *12 (2011).
       {¶19} Moreover, appellant waived his general claims regarding the line-up
because he did not file a pretrial motion to suppress the identification and/or object at
trial. (Tr. 155-180). See State v. Curtis, 54 Ohio St.2d 128, 134-135, 375 N.E.2d 52
(1978). See also State v. Andrews, 12th Dist. No. CA2009-02-052, 2010-Ohio-108, ¶
10. And, even if any line-up issues had been raised, the court could have used its
discretion to find that the procedures were not unduly suggestive or the identification
was reliable enough for submission to a jury. See, e.g., State v. Gross, 97 Ohio St.3d
121, 2002–Ohio–5524, 776 N.E.2d 1061, ¶ 19; State v. Murphy, 91 Ohio St.3d 516,
534, 747 N.E.2d 765 (2001); State v. Waddy, 63 Ohio St.3d 424, 439, 588 N.E.2d 819
(1992).
       {¶20} Regardless, an allegation concerning a line-up is not a subject matter
jurisdiction issue. That is, an improper line-up can result in a voidable conviction, not a
void one. A lack of jurisdiction that would make an order void is distinct from a lack of
authority (sometimes also referred to as jurisdiction) to make an erroneous decision
that would make an order voidable. Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-
1980, 806 N.E.2d 992, ¶ 10-12, 34. The Supreme Court has explained that the word
“jurisdiction” is sometimes used (or overused) to refer to a court's “jurisdiction” to hear
a particular case and pointed out that this situation is more appropriately considered a
lack of authority to rule on a certain matter or to proceed in a certain manner rather
than a lack of jurisdiction. Id. at ¶ 12, 19-21 (concluding that a failure to convene a
three-judge panel in a death-penalty plea made a judgment voidable, not void,
because the common pleas court had jurisdiction over an adult criminal cases).
Whether the line-up was suggestive or not, the court had subject matter jurisdiction to
hear this case. See, e.g., State ex rel. Gains v. Go-Go Girls Caberet, Inc., 7th Dist.
No. 09MA146, 2010-Ohio-870, ¶ 27-29 (common pleas judge had subject matter
jurisdiction to issue search warrant even if contrary to procedure). Thus, appellant’s
argument regarding the line-up does not constitute a subject matter jurisdiction issue
that can be raised at any time.
         {¶21} Rather, appellant’s motion is essentially seeking post-conviction relief,
and the trial court properly treated it as such. See State v. Reynolds, 79 Ohio St.3d
158, 160, 679 N.E.2d 1131 (1997) (where a criminal defendant, subsequent to his
direct appeal, files a motion on the basis that his constitutional rights have been
violated, such a motion is a petition for post-conviction relief as defined in R.C.
2953.21 despite its caption). Nameless motions must be categorized in order for the
court to determine the applicable test. See State v. Schlee, 117 Ohio St.3d 153, 2008-
Ohio-545, 882 N.E.2d 431, ¶ 12-13 (court may recast motion not named in the criminal
justice system to a post-conviction relief petition). See also State v. Bush, 96 Ohio
St.3d 235, 2002-Ohio-3993, 773 N.E.2d 522, ¶ 10-11 (but noting that the court cannot
recast motion to withdraw guilty plea into post-conviction relief motion).
         {¶22} In fact, appellant’s motion specifically invoked R.C. 2953.23. Thus, the
post-conviction test was properly applied here.
         {¶23} Applying this test, appellant’s petition was untimely filed under R.C.
2953.21(A), which provides that the petition shall be filed no later than one hundred
eighty days after: the date on which the trial transcript is filed in the court of appeals in
the direct appeal or the expiration of the time for filing the appeal. A court may not
entertain appellant’s untimely petition unless he showed:          (1) that he was either
unavoidably prevented from discovery of the relevant facts upon which the petition
relies or that 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, and (2) there is clear and convincing evidence that, but for
constitutional error at trial, no reasonable fact-finder would have found the petitioner
guilty. R.C. 2953.23(A). (Or, an alternative regarding DNA testing, not applicable
here).
         {¶24} Appellant does not state how he was or even that he was unavoidably
prevented from discovering that the line-up may have been suggestive. See R.C.
2953.23(A)(1)(a). In fact, the testimony he cites is from his 2004 trial. Nor does he set
forth a new retroactive right recognized by the United States Supreme Court. Id.
Rather, as to both of these options, the right he relies upon is derived from a new Ohio
statute that is not retroactive to the date of the photographic line-up involving
appellant. Finally, we note that the child-victim (who was the nephew of appellant’s
live-in girlfriend) identified appellant (someone he knew well and called “Uncle”) as the
one who pushed his head down and made him perform fellatio in the truck that day.
(Tr. 231-233). As such, it cannot be said that but for the alleged error, no reasonable
fact-finder would have found him guilty. This assignment of error is overruled.
      {¶25} For the foregoing reasons, the judgment of the trial court is hereby
affirmed.

Waite, P.J., concurs.
DeGenaro, J., concurs.
