[Cite as State v. Collins, 2017-Ohio-648.]
                            STATE OF OHIO, MAHONING COUNTY

                                   IN THE COURT OF APPEALS

                                         SEVENTH DISTRICT


STATE OF OHIO,                                 )    CASE NO. 16 MA 0045
                                               )
        PLAINTIFF-APPELLEE,                    )
                                               )
VS.                                            )    OPINION
                                               )
KENYATTA COLLINS,                              )
                                               )
        DEFENDANT-APPELLANT.                   )

CHARACTER OF PROCEEDINGS:                           Criminal Appeal from the Court of
                                                    Common Pleas of Mahoning County,
                                                    Ohio
                                                    Case No. 2012 CR 892

JUDGMENT:                                           Affirmed.

APPEARANCES:

For Plaintiff-Appellee:                             Atty. Paul J. Gains
                                                    Mahoning County Prosecutor
                                                    Atty. Ralph M. Rivera
                                                    Assistant Prosecuting Attorney
                                                    21 West Boardman St., 6th Floor
                                                    Youngstown, Ohio 44503

For Defendant-Appellant:                            Kenyatta Collins, pro se
                                                    Inmate No. 651-971
                                                    Trumbull Correctional Camp
                                                    P.O. Box 640
                                                    5701 Burnett Road
                                                    Leavittsburg, Ohio 44430

JUDGES:

Hon. Carol Ann Robb
Hon. Gene Donofrio
Hon. Cheryl L. Waite
                                                    Dated: February 22, 2017
[Cite as State v. Collins, 2017-Ohio-648.]
ROBB, P.J.


        {¶1}     Defendant-Appellant Kenyatta Collins appeals the judgment of the
Mahoning County Common Pleas Court overruling his “Motion To Vacate Non-
Cognizable Offense.” He asserts his conviction of attempted murder is void. He
relies on the Ohio Supreme Court’s Nolan case.                However, Nolan was a
pronouncement on the non-cognizable charge of “attempted felony murder.” In that
case, the attempt statute was improperly applied to the type of murder defined by
division (B) of R.C. 2903.02. Appellant was convicted of an attempt to commit the
type of murder defined by division (A) of R.C. 2903.02, which requires a purpose to
cause the death of another. This is a cognizable offense. Accordingly, the trial
court’s judgment is affirmed.
                                   STATEMENT OF THE CASE
        {¶2}     On August 14, 2012, Appellant asked the victim to meet him at a club in
Youngstown. When the victim arrived, he was robbed and shot. Appellant was
indicted for:      attempted murder under R.C. 2903.02(A) and R.C 2923.02(A), for
engaging in conduct which, if successful, would have resulted in the offense of
purposely causing the death of another; aggravated robbery under R.C.
2911.02(A)(1), for having and indicating possession of a deadly weapon while
knowingly committing, attempting, or fleeing from a theft offense; felonious assault
under R.C. 2903.11 (A)(2), for knowingly causing physical harm to another by means
of a deadly weapon; and three firearm specifications. A superseding indictment was
issued adding Willie Daniel, Jr. as a co-defendant.
        {¶3}     On the day trial was to begin, Appellant entered a guilty plea to
attempted murder under R.C. 2903.02(A) and R.C. 2923.02(A), aggravated robbery
under R.C. 2911.02(A)(1), and two firearm specifications. (The felonious assault
charge was nolled.) Under the November 2, 2013 plea agreement, the state agreed
to recommend five years on each count to run concurrently plus three years for the
merged firearm specifications for a total of eight years.      The sentencing hearing
proceeded on January 13, 2014.               The trial court imposed the recommended
sentence. Appellant did not appeal from the February 6, 2014 sentencing order.
                                                                                     -2-

       {¶4}   On March 11, 2015, Appellant filed a motion to vacate his attempted
murder conviction.    His motion claimed attempted murder was a non-cognizable
offense due to the Ohio Supreme Court’s Nolan case. He urged a conviction for a
non-cognizable offense would be void. He noted a void judgment can be attacked at
any time.
       {¶5}   After ten months without a ruling, Appellant filed an original action in
this court against the trial judge. The judge filed an answer arguing Appellant had no
clear right to have his conviction vacated and had an adequate legal remedy through
a direct appeal. On March 21, 2016, we ordered the trial court to issue a ruling on
Appellant’s March 11, 2015 motion. See State ex rel. Collins v. Sweeney, 7th Dist.
No. 16 MA 0007, 2016-Ohio-1171, ¶ 6-10 (noting the judge’s argument misconstrued
the type of relief sought in the mandamus action: “he is simply seeking to have the
trial court rule on his March 11, 2015 motion”), citing State ex rel. Culgan v. Collier,
135 Ohio St.3d 436, 2013-Ohio-1762, 988 N.E.2d 564.
       {¶6}   On April 1, 2016, the trial court overruled Appellant’s motion to vacate
his attempted murder conviction. The court’s entry noted, “The State of Ohio objects
to said Motion.” As Appellant points out, however, the docket shows the state never
responded to his March 11, 2015 motion. Appellant filed a timely notice of appeal
from the trial court’s April 1, 2016 judgment.
                            MURDER & ATTEMPT STATUTES
       {¶7}   Pursuant to R.C. 2903.02(A), “No person shall purposely cause the
death of another or the unlawful termination of another's pregnancy.” Effective June
30, 1998, a second type of murder was added under division (B), which states: “No
person shall cause the death of another as a proximate result of the offender's
committing or attempting to commit an offense of violence that is a felony of the first
or second degree and that is not a violation of section 2903.03 or 2903.04 of the
Revised Code.” R.C. 2903.02(B). A conviction under either division (A) or (B) is
officially labeled “murder.” R.C. 2903.02(D).
       {¶8}   The offense described by division (B) is more specifically known as
“felony murder.” See, e.g., State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, 926
N.E.2d 1239, ¶ 43. There is no mens rea component contained in the felony murder
                                                                                       -3-

statute. Id., citing State v. Miller, 96 Ohio St.3d 384, 2002-Ohio-4931, 775 N.E.2d
498, ¶ 31-33 (a defendant can commit felony murder even if there was no intent to
cause a death). “Rather, a person commits felony murder pursuant to R.C.
2903.02(B) by proximately causing another's death while possessing the mens rea
element set forth in the underlying felony offense. In other words, the predicate
offense contains the mens rea element for felony murder.” Fry, 125 Ohio St.3d 163
at ¶ 73.
         {¶9}   The general attempt statute provides:        “No person, purposely or
knowingly, and when purpose or knowledge is sufficient culpability for the
commission of an offense, shall engage in conduct that, if successful, would
constitute or result in the offense.” R.C. 2923.02(A). “Whoever violates this section
is guilty of an attempt to commit an offense.” R.C. 2923.02(E)(1). This subdivision
also specifies that an attempt to commit murder is a felony of the first degree. Id.
                ASSIGNMENT OF ERROR: APPLICATION OF NOLAN
         {¶10} Appellant’s sole assignment of error alleges:
         “THE TRIAL COURT DENIED APPELLANT DUE PROCESS OF LAW AND
EQUAL PROTECTION UNDER THE LAW, WHEN THAT COURT FAILED TO
VACATE VOID JUDGMENT ON NON-COGNIZABLE OFFENSE.”
         {¶11} Appellant asks this court to apply the Ohio Supreme Court’s Nolan
holding to his attempted murder conviction.          In Nolan, the Court reviewed an
“attempted felony murder” conviction under the attempt statute and division (B) of the
murder statute. State v. Nolan, 141 Ohio St.3d 454, 2014-Ohio-4800, 25 N.E.3d
1016. The Court concluded it is not possible to commit “attempted felony murder” in
Ohio. ¶ 5. In accordance: “Attempted felony murder is not a cognizable crime in
Ohio.”     Id. at syllabus.   The Supreme Court explained how an attempt offense
requires the mens rea of purposely or knowingly. See id. at ¶ 6-7, 10, citing R.C.
2923.02(A). However,
         intent to kill need not be proven for the state to obtain a conviction for
         felony murder, so that a person can be convicted of that offense even
         though the death was unintended. Thus, this case devolves to an
         anfractuous question: Can a person be guilty of attempting to cause an
                                                                                    -4-

       unintended death? We conclude that the court of appeals correctly
       determined that it is impossible to purposely or knowingly cause an
       unintended death. Accordingly, we hold that attempted felony murder is
       not a cognizable crime in Ohio.
Id. at ¶ 10.
       {¶12} The state initially contends Appellant’s argument is barred by the
doctrine of res judicata as he could have raised this argument via direct appeal but
failed to appeal from his conviction. 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. See, e.g., State v. Szefcyk, 77 Ohio St.3d 93, 95, 671 N.E.2d 233
(1996), syllabus; State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967).
       {¶13} To counter this argument, Appellant relies on the proposition that a void
judgment can be attacked at any time. “A void judgment is a nullity and open to
collateral attack at any time.” Lingo v. State, 138 Ohio St.3d 427, 2014-Ohio-1052, 7
N.E.3d 1188, ¶ 46 (“The statement that void judgments are not open to collateral
attack and that attacks on void judgments can be defeated by the doctrine of res
judicata is mistaken.”). See also State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-
5014, 1 N.E.3d 382, ¶ 7 (a void sanction can be reviewed at any time);
Westmoreland v. Valley Homes Mut. Hsg. Corp., 42 Ohio St.2d 291, 294, 328 N.E.2d
406 (1975) (a court has inherent authority to vacate a void judgment), citing Staff
Note to Civ.R. 60(B) (1970) (“Any court has inherent power to vacate a void judgment
without the vacation being subject to a time limitation.”).
       {¶14} Appellant then asserts that a conviction for a non-cognizable offense is
void. He fails to cite a case directly supporting this conclusion; however, we note the
Eleventh District has held: “Although the trial court had subject matter jurisdiction
over the case, because attempted felony murder is not a cognizable crime in Ohio,
the trial court lacked authority to sentence appellant and to enter an order of
conviction on Count 2. Therefore, his conviction of that offense is void.” State v.
Bozek, 11th Dist. No. 2015-P-0018, 2016-Ohio-1305, ¶ 21 (where the defendant was
                                                                                 -5-

actually convicted of attempted felony murder). We need not express an opinion on
this holding here.
       {¶15} As the state points out, the Ohio Supreme Court’s Nolan case has no
application to Appellant’s case. As reviewed supra, Nolan dealt with a conviction of
an attempt to commit a murder under R.C. 2903.02(B), also known as “felony
murder.”   Appellant was not convicted by way of division (B).        Appellant was
convicted of an attempt to commit a murder under division (A) of R.C. 2903.02 for
attempting to purposely cause a death. He was indicted for this offense, he pled
guilty to this offense, and he was convicted of this offense.
       {¶16} That the attempted murder may have occurred contemporaneously with
Appellant’s commission of an aggravated robbery does not detract from the separate
offense of attempted murder. See State v. Maple, 9th Dist. No. 28031, 2016-Ohio-
5024, ¶ 5 (“Nolan's rationale does not apply because it is possible to attempt to
purposely cause the death of another while committing a different felony.”) In other
words, the state was not merely accusing Appellant of attempting to cause a death as
a proximate result of the aggravated robbery. Rather, he was accused of and pled
guilty to an attempt to purposely cause a death.
       {¶17} In summary, Nolan merely held that an attempt to commit murder under
division (B) of R.C. 2903.02 (or “attempted felony murder”) is a non-cognizable
offense. The case had no effect on the pre-existing offense of attempting to commit
a murder under division (A) of R.C. 2903.02.        See State v. Robinson, 8th Dist.
103559, 2016-Ohio-2931, ¶ 15 (a defendant convicted of attempted murder under
division (A) of a murder statute cannot use Nolan to argue the offense is non-
cognizable). Appellant was convicted of attempted murder under R.C. 2903.02(A).
Attempted murder under R.C. 2903.02(A) is a cognizable offense. See id. See
generally State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d 433, ¶
115-121 (finding sufficient evidence the defendant purposely attempted to cause the
victim’s death under division (A) of R.C. 2903.02 and the attempt statute); State v.
Kidder, 32 Ohio St.3d 279, 283, 513 N.E.2d 311 (1987) (“The elements of attempted
murder, as defined by R.C. 2923.02 and 2903.02, are (1) purposely, (2) engaging in
conduct which, if successful, would (3) cause another's death.”).
                                                                                 -6-

       {¶18} Accordingly, Appellant’s argument is without merit. The judgment of the
trial court is affirmed.




Donofrio, J., concurs.

Waite, J., concurs.
