[Cite as State v. Higgins, 2019-Ohio-3081.]


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

STATE OF OHIO                                        C.A. No.       29324

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
TOMMY W. HIGGINS, JR.                                COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 2013 04 0884

                                 DECISION AND JOURNAL ENTRY

Dated: July 31, 2019



        SCHAFER, Judge.

        {¶1}     Defendant-Appellant, Tommy Higgins, Jr., appeals the judgment of the Summit

County Court of Common Pleas converting his motion to vacate a void judgment into a petition

for postconviction relief and subsequently denying the motion. We affirm.

                                                I.

        {¶2}     In 2013 the Summit County Grand Jury indicted Higgins on five counts of

felonious assault in violation of R.C. 2903.11(A)(2), felonies of the second degree with firearm

specifications; one count of improperly discharging a firearm in a habitation in violation of R.C.

2923.161, with a firearm specification, a felony of the second degree; two counts of intimidating

a witness in violation of R.C. 2921.04(B), felonies of the third degree; one count of possession of

drugs in violation of R.C. 2925.11(A)(C)(2), a misdemeanor of the third degree; and one count

of driving under suspension in violation of R.C. 4510.11, a misdemeanor of the first degree.

Higgins entered a plea of not guilty and the matter proceeded through the pretrial process.
                                                  2


       {¶3}    Pursuant to a plea agreement, Higgins ultimately entered a plea of guilty to two

counts of intimidation of a witness. The trial court accepted his plea, found him guilty, and

dismissed the remaining charges upon recommendation of the prosecutor. On February 4, 2014,

following a presentence investigation, the trial court sentenced Higgins to two years

incarceration on both counts to be served consecutively with each other for a total of four years.

The trial court then suspended all prison time upon the condition that Higgins complete one year

of community control. One condition of Higgins’ community control was to obey all laws.

Higgins did not file a direct appeal of his conviction.

       {¶4}    On September 17, 2014, the Summit County Grand Jury indicted Higgins on

numerous charges. Following a trial, a jury found Higgins guilty of possession of heroin,

trafficking in heroin, aggravated possession of drugs, and possession of criminal tools. The trial

court sentenced Higgins to a total of three years in prison.1 Consequently, on January 26, 2015,

the trial court found Higgins guilty of violating the conditions of his community control in the

present matter and imposed the previously suspended four year sentence in a journal entry on

February 10, 2015.      The trial court ordered the sentences for both cases to be served

consecutively for a total of seven years. Higgins did not appeal his conviction for violating his

community control.

       {¶5}    On March 16, 2018, Higgins filed a notice of appeal of the February 10, 2015

order. This Court dismissed the attempted appeal as untimely. See State v. Higgins, 9th Dist.

Summit No. 28981, Apr. 19, 2019. On October 23, 2018, Higgins filed a second notice of appeal

and moved this Court for leave to file a delayed appeal from the February 10, 2015 order. This



       1
        Higgins appealed and this Court affirmed. See State v. Higgins, 9th Dist. Summit No.
27700, 2018-Ohio-476.
                                                 3


Court dismissed the attempted appeal. See State v. Higgins, 9th Dist. Summit No. 29205, Nov.

28, 2018.

       {¶6}   Relevant to this appeal, Higgins filed a motion to vacate judgment on April 3,

2018, a motion to vacate void judgment on April 13, 2018, a motion to proceed to judgment on

April 20, 2018, and a motion to vacate void judgment on October 22, 2018. The trial court

determined that Higgins’ motions were untimely motions for postconviction relief that failed to

allege or establish that he was unavoidably prevented from any discovery or that he would not

have been found guilty of violating the conditions of his community control but for an alleged

sentencing error. In the alternative, the trial court further found that Higgins’ motions were

barred by res judicata and/or moot.

       {¶7}   Higgins filed this timely appeal, raising one assignment of error for our review.

                                                 II.

                                      Assignment of Error

       The trial court erred when it converted [Higgins’] “motion to vacate void
       judgment” into a petition for [postconviction] relief. * * * .

       {¶8}   In his sole assignment of error, Higgins contends that the trial court erred when it

construed his motions as petitions for postconviction relief because his sentence was void. We

disagree.

       {¶9}    Pursuant to R.C. 2953.21(A)(1):

       Any person who has been convicted of a criminal offense * * * 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.
                                                 4


(Emphasis added.) “Regardless of the caption, ‘where a criminal defendant, subsequent to his or

her direct appeal [or the expiration of the time for filing an 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 postconviction relief as defined in R.C. 2953.21.’”

State v. Morales, 9th Dist. Summit No. 27765, 2016-Ohio-3313, ¶ 8, quoting State v. Reynolds,

79 Ohio St.3d 158, 160 (1997); see State v. Stepler, 9th Dist. Summit No. 23354, 2006-Ohio-

6913, ¶ 8.

       {¶10} Upon review, we determine that, despite Higgins’ argument to the contrary, his

motions were properly construed as petitions for postconviction relief. Higgins’ motions were:

(1) filed more than four years after the expiration of time for filing an appeal of his sentence and

more than three years after the trial court determined he had violated his community control; (2)

claimed a violation of his due process rights; (3) attempted to render his conviction void; and (4)

sought to vacate his sentence.

       {¶11} Higgins’ assignment of error is overruled.

                                                III.

       {¶12} Higgins’ assignment of error is overruled. The judgment of the Summit County

Court of Common Pleas is affirmed.

                                                                                Judgment affirmed.




       There were reasonable grounds for this appeal.
                                                 5


       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.




                                                     JULIE A. SCHAFER
                                                     FOR THE COURT



TEODOSIO, P. J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

TOMMY W. HIGGINS, JR., pro se, Appellant.

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