[Cite as State v. Walker, 2019-Ohio-605.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                         C.A. No.       29151

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
ANTHONY MAURICE WALKER                                COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 1990-05-0801

                                 DECISION AND JOURNAL ENTRY

Dated: February 20, 2019



        CALLAHAN, Presiding Judge.

        {¶1}     Appellant, Anthony Maurice Walker, appeals an order that denied his “Motion for

Relief from: ‘Dormant Judgment.’” This Court affirms.

                                                 I.

        {¶2}     In 1990, Mr. Walker pleaded guilty to aggravated murder with a death penalty

specification, rape, and aggravated burglary. The trial court sentenced him to life in prison with

parole eligibility after 30 years for the aggravated murder conviction and to sentences of 10-25

years on each of the other convictions. Mr. Walker did not file a direct appeal. On May 24,

2017, Mr. Walker filed a “Motion to Arrest Judgment, Pursuant to O.R.C. 2947.02(a)(b),”

arguing that the trial court had lacked subject matter jurisdiction over his case because no

complaint had issued against him. On August 24, 2017, he filed another motion in which he

alleged that his sentence was void and that the trial court had not entered a final appealable order.

On September 12, 2017, Mr. Walker supplemented his previous motion and filed a “Motion for
                                                 2


Relief from: ‘Dormant Judgment.’” In the latter, Mr. Walker reiterated the argument from his

sentencing motion, maintained that his sentence for aggravated murder was void because it was

indefinite, and argued that because his sentence was void, it constituted a dormant judgment.

       {¶3}    The trial court denied his motions related to sentencing, and Mr. Walker appealed.

This Court noted that the trial court had not yet resolved his “Motion for Relief from: ‘Dormant

Judgment’” and dismissed Mr. Walker’s appeal to the extent that he attempted to argue the

merits of that motion. State v. Walker, 9th Dist. Summit No. 28836, 2018-Ohio-1146, ¶ 6-8.

This Court concluded that Mr. Walker’s arguments related to his sentence were barred by res

judicata because he failed to challenge his sentence by pursuing a direct appeal. Id. at ¶ 15.

       {¶4}    On April 16, 2018, the trial court denied Mr. Walker’s two pending motions: the

“Motion to Arrest Judgment” and the “Motion for Relief from: ‘Dormant Judgment.’”                Mr.

Walker filed this appeal.1

                                                II.

                              ASSIGNMENT OF ERROR NO. 1

       WHERE A SENTENCING JOURNAL ENTRY IMPOSES DISTINCTLY
       CONFLICTED SENTENCE[S] FOR THE SAME OFFENSE, DUE PROCESS
       IS OFFENDED; THE SENTENCE IS ‘DECLARED VOID’ BY OPERATION
       OF LAW; AND IT MUST BE VACATED AS A MATTER OF LAW
       THEREFORE.




       1
          We note at the outset that at first glance, it appears that Mr. Walker’s appeal may not
have been timely filed. The trial court’s docket does not indicate that Mr. Walker was served
with notice of the trial court’s order, as required by Civ.R. 58(B), however. Consequently, even
though Mr. Walker filed his appeal more than thirty days after the order was journalized, his time
for filing a notice of appeal has yet to commence. See State v. Herzberger, 9th Dist. Lorain No.
16CA010899, 2017-Ohio-491, ¶ 7 (concluding that the requirements of Civ.R. 58(B) apply to
motions that are construed as petitions for postconviction relief).
                                                 3




       {¶5}    In his first assignment of error, Mr. Walker argues that by sentencing him to

prison for “the remainder of his natural life, with parole eligibility after Thirty (30) Full Years,”

the trial court imposed an inconsistent sentence. This Court rejected this argument in Mr.

Walker’s previous appeal, and his first assignment of error is overruled on that basis. See Walker

at ¶ 13-14.

                               ASSIGNMENT OF ERROR NO. 2

       WHERE A JUDGMENT HAS NOT BEEN EXECUTED WITHIN THE TIME
       LIMITATION PRESCRIBED IN: O.R.C. SECTION 2325.15, I.E., ‘WITHIN
       FIVE YEARS,’ SUCH JUDGMENT         (WITH RESPECT TO THE
       CORRELATIVE COURT COSTS, FINES, AND FEES) IS A ‘DORMANT
       JUDGMENT,’ FOR WANT OF EXECUTION AND ENFORCEABILITY, AND
       MAY NOT BE REVIVED A[B]SENT A SHOW CAUSE HEARING
       PURSUANT TO THE PROVISIONS OF STATE V. MAGRUDER, 2008 OHIO
       APP. LEXIS 1827[.]

       {¶6}    Mr. Walker’s second assignment of error argues that because his sentence is void

for the reasons mentioned in his first assignment of error, it follows that the judgment for costs of

his prosecution is dormant.

       {¶7}    This Court must first consider the nature of the motion at issue in this appeal.

R.C. 2953.21(A)(1)(a) provides:

       Any person who has been convicted of a criminal offense or adjudicated a
       delinquent child and who claims that there was such a denial or infringement of
       the person’s rights as to render the judgment void or voidable under the Ohio
       Constitution or the Constitution of the United States * * * may file a petition in
       the court that imposed sentence, stating the grounds for relief relied upon, and
       asking the court to vacate or set aside the judgment or sentence or to grant other
       appropriate relief.

Faced with an irregular motion, this Court may construe the motion “into whatever category

necessary to identify and establish the criteria by which the motion should be judged.” State v.

Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, ¶ 12. A petition for postconviction relief can be
                                                 4


filed regardless of whether the defendant pursued a direct appeal. See R.C. 2953.21(A)(2)

(noting that a petition for postconviction relief must be filed “no later than three hundred sixty-

five days after the expiration of the time for filing the [direct] appeal” when no appeal is taken.).

It follows that when a motion claims a denial of constitutional rights, seeks recognition that the

judgment is void, and requests that the judgment and sentence be vacated, the motion may be

construed as a petition for postconviction relief regardless of whether the defendant pursued a

direct appeal. See, e.g., State v. Morales, 9th Dist. Summit No. 27765, 2016-Ohio-3313, ¶ 8;

State v. Copley, 9th Dist. Medina No. 2738-M, 1998 WL 312526, *1 (June 10, 1998). Compare

State v. Davis, 9th Dist. Medina No. 15CA0004-M, 2015-Ohio-5182, ¶ 6, citing State v.

Reynolds, 79 Ohio St.3d 158, 160 (1997). Mr. Walker’s September 12, 2017, “Motion for Relief

from: ‘Dormant Judgment’” meets these requirements and is properly construed as a petition for

postconviction relief.

       {¶8}    R.C. 2953.21(A)(2) provides that a petition for postconviction relief must be filed

within 365 days of the date on which the transcript is filed in a direct appeal or, if no direct

appeal is taken, within 365 days of the expiration of the time for filing an appeal. A defendant

who was sentenced prior to the amendment of Ohio’s postconviction act, however, could file a

petition for postconviction relief within one year of the effective date of the amendment, or by

September 21, 1996. See 1995 Am.Sub.S.B. No. 4, Section 3. A trial court may only entertain

an untimely petition for postconviction relief when two thresholds have been met:

       (a) Either the petitioner shows that the petitioner was unavoidably prevented from
       discovery of the facts upon which the petitioner must rely to present the claim for
       relief, or, subsequent to the period prescribed in division (A)(2) of section
       2953.21 of the Revised Code or to the filing of an earlier petition, 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]
                                              5


       (b) The petitioner shows by clear and convincing evidence that, but for
       constitutional error at trial, no reasonable factfinder would have found the
       petitioner guilty of the offense of which the petitioner was convicted or, if the
       claim challenges a sentence of death that, but for constitutional error at the
       sentencing hearing, no reasonable factfinder would have found the petitioner
       eligible for the death sentence.

R.C. 2953.23(A).

       {¶9}   Mr. Walker was sentenced in 1990—five years before the amendment of Ohio’s

postconviction statute. Compare State v. Swihart, 9th Dist. Medina No. 06CA0091-M, 2007-

Ohio-763, ¶ 6. Consequently, Mr. Walker was permitted to file a petition for postconviction

relief within one year of the effective date of the amendment, or by September 21, 1996. See

1995 Am.Sub.S.B. No. 4, Section 3; Swihart at ¶ 6. His “Motion for Relief from: ‘Dormant

Judgment’” was filed almost twenty-one years after that date and was “clearly untimely.” See

Swihart at ¶ 7. His motion did not explain why he was unavoidably prevented from discovering

the facts upon which it was based, and it did not identify a retroactive right that has been

recognized by the United States Supreme Court. See Morales at ¶ 8. Accordingly, the trial court

did not err by denying Mr. Walker’s “Motion for Relief from: ‘Dormant Judgment.’”

       {¶10} Mr. Walker’s second assignment of error is overruled.

                                             III.

       {¶11} Mr. Walker’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                            Judgment affirmed.




       There were reasonable grounds for this appeal.
                                                 6


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     LYNNE S. CALLAHAN
                                                     FOR THE COURT



CARR, J.
HENSAL, J.
CONCUR.


APPEARANCES:

ANTHONY M. WALKER, pro se, Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee.
