         [Cite as State v. Spurling, 2020-Ohio-3792.]




                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO



STATE OF OHIO,                                     :    APPEAL NO. C-190629
                                                        TRIAL NO. B-0504690
        Plaintiff-Appellee,                        :

  vs.                                              :       O P I N I O N.

LEDON SPURLING,                                    :

    Defendant-Appellant.                           :



Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: July 22, 2020




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Ledon Spurling, pro se.
                  OHIO FIRST DISTRICT COURT OF APPEALS



ZAYAS, Judge.

       {¶1}   Defendant-appellant Ledon Spurling appeals the judgment of the

Hamilton County Common Pleas Court dismissing for lack of jurisdiction his 2019

“Motion to Vacate Void Judgment.” We affirm the court’s judgment.

                                Procedural Posture

       {¶2}   In 2005, Spurling was charged in a two-count indictment with

trafficking in and possession of 1.35 grams of crack cocaine. Count one, charging

third-degree-felony trafficking, was subsequently amended to charge third-degree-

felony possession. And on November 9, 2005, Spurling executed a form withdrawing

his not-guilty pleas, pleading guilty to count one as amended, and agreeing to a two-

year prison term. The trial court accepted his guilty plea in conformity with Crim.R.

11, found him guilty of third-degree-felony possession as charged in amended count

one, and set a date for sentencing.

       {¶3}   Before sentencing, Spurling twice moved under Crim.R. 32.1 to

withdraw his guilty plea. The first motion did not state the ground upon which relief

was sought. The trial court overruled that motion following a hearing. The second

motion alleged that Spurling had entered his guilty plea under the mistaken belief that

he was pleading guilty to fourth-degree-felony possession, and that a one-year prison

term had been “discussed.” The trial court addressed that motion at sentencing,

deemed it “redundant,” and entered judgment overruling the motion. The court then

imposed the agreed two-year prison sentence for third-degree-felony possession as

charged in amended count one of the indictment and dismissed fourth-degree-felony

possession as charged in count two.




                                             2
                  OHIO FIRST DISTRICT COURT OF APPEALS



       {¶4}    We affirmed Spurling’s conviction on direct appeal, overruling

assignments of error challenging count one’s amendment, trial counsel’s failure to

object to that amendment, the overruling of the presentence Crim.R. 32.1 motions, and

the imposition of the agreed sentence. State v. Spurling, 1st Dist. Hamilton No. C-

060087, 2007-Ohio-858. In doing so, we acknowledged that possession of 1.35 grams

of crack cocaine constituted fourth-degree-felony possession, as charged in count two

of the indictment. But we held that the trial court did not abuse its discretion in

overruling Spurling’s Crim.R. 32.1 motions to withdraw his guilty plea to third-degree-

felony possession as charged in amended count one, and that trial counsel had not

been constitutionally ineffective, because the trial court had afforded the Crim.R. 32.1

motions full and fair consideration and had accepted the plea following a Crim.R. 11

hearing, during which Spurling affirmatively waived his constitutional rights and

expressly acknowledged his understanding that the count-one trafficking charge had

been amended to a possession charge, and that he was pleading guilty to that charge in

exchange for a two-year prison term and dismissal of the count-two possession charge.

Id. at ¶ 12 and 23.

       {¶5}    Spurling also challenged his conviction by filing with the common pleas

court an array of postconviction motions.         In his 2019 “Motion to Vacate Void

Judgment,” from which this appeal derives, Spurling advanced two claims.             He

asserted that his conviction for third-degree-felony possession violated his

constitutional right to an indictment, because that offense had not been charged in the

indictment. And he asserted that under R.C. 2945.75, he could only have been found

guilty of and sentenced for the least degree of the offense, fourth-degree-felony

possession, because the indictment charged only fourth-degree-felony possession, the




                                              3
                   OHIO FIRST DISTRICT COURT OF APPEALS



laboratory report reflected possession of 1.35 grams, not the 5-to-10 grams necessary

to elevate his offense to a third-degree felony, and neither amended count one nor the

judgment of conviction alleged an additional element to elevate the offense to a third-

degree felony. The common pleas court dismissed Spurling’s “Motion to Vacate Void

Judgment,” upon its determination that he had failed to satisfy the jurisdictional

requirements for a late postconviction petition.

        {¶6}    In this appeal from that judgment,1 Spurling presents four assignments

of error. He asserts that he was denied due process, when the common pleas court

“converted his motion to a postconviction petition,” failed to conduct a hearing on the

motion, and granted the state, and denied him, “summary judgment” on the motion.

The assignments of error may fairly be read to challenge the dismissal of the motion

without an evidentiary hearing.         We, therefore, address the assignments of error

together. And we overrule them, upon our determination that the common pleas court

properly dismissed the motion without an evidentiary hearing, because the court had

no jurisdiction to entertain the motion.

                         No Jurisdiction to Entertain Motion

        {¶7}    The Ohio Supreme Court has long recognized, and recently reaffirmed,

that when a court is confronted with a motion that does not designate a statute or rule

under which the relief sought may be granted, the court may “recast” that motion “in

whatever category necessary to identify and establish the criteria by which the motion




1Two  days later, the common pleas court filed a second entry, “den[ying]” the motion on the
grounds that the motion lacked merit and the court lacked jurisdiction to grant relief after this
court had affirmed Spurling’s conviction in the direct appeal. The second entry, filed after the
common pleas court had entered the final order from which this appeal ensued, and thus after
that court had lost jurisdiction to decide the motion, constituted a legal nullity. See Farris v.
State, 1 Ohio St. 188, 189 (1853) (applying the fundamental principle that a judgment of a court
acting without jurisdiction is a “nullity”).


                                                   4
                 OHIO FIRST DISTRICT COURT OF APPEALS



should be judged.” State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d

431, ¶ 12 and syllabus (holding that a motion seeking relief from a criminal conviction,

filed subsequent to the direct appeal, may be “recast * * * as a petition for

postconviction relief [even] when the motion has been unambiguously presented as

a Civ.R. 60(B) motion”); accord State v. Parker, 157 Ohio St.3d 460, 2019-Ohio-3848,

137 N.E.3d 1151, ¶ 15 (citing Schlee to hold that the common pleas court properly recast

as a postconviction petition a motion seeking an order vacating movant’s sentence on

constitutional grounds).

       {¶8}   In his “Motion to Vacate Void Judgment,” Spurling asked the common

pleas court to vacate his conviction for third-degree-felony cocaine possession on the

grounds that that conviction violated (1) his constitutional right to an indictment, and

(2) his statutory right, secured under R.C. 2945.75, to be sentenced for the least degree

of the charged offense of possession. On appeal, he asserts that the motion was not, as

the common pleas court concluded, reviewable under R.C. 2953.21 et seq., governing

petitions for postconviction relief, but should instead have been reviewed under

Crim.R. 32.1, governing motions to withdraw a guilty or no-contest plea. But Spurling

did not cite Crim.R. 32.1 in his motion or seek by his motion the relief afforded by that

rule. Nor did he designate in the motion any other rule or statute under which the

relief sought may have been afforded. Consequently, the common pleas court was left

to determine the appropriate criteria for deciding the motion. See Schlee at ¶ 12 and

syllabus.

       {¶9}   No jurisdiction to entertain late postconviction right-to-

indictment claim. A common pleas court may grant relief from a conviction under

the postconviction statutes upon proof of a constitutional violation during the




                                              5
                 OHIO FIRST DISTRICT COURT OF APPEALS



proceedings resulting in that conviction. See R.C. 2953.21(A)(1); State v. Powell, 90

Ohio App.3d 260, 264, 629 N.E.2d 13 (1st Dist.1993). Thus, a motion filed after the

direct appeal, seeking an order vacating or correcting a judgment of conviction based

on a constitutional violation, is reviewable under the postconviction statutes. State v.

Reynolds, 79 Ohio St.3d 158, 160, 679 N.E.2d 1131 (1997); accord Schlee at ¶ 12

(following Reynolds to construe a Civ.R. 60(B) motion for relief from judgment as a

petition for postconviction relief); Parker at ¶ 15-17 (citing Reynolds and Schlee to

hold that the common pleas court properly recast as a postconviction petition a motion

seeking an order vacating movant’s sentence on constitutional grounds).

       {¶10} Spurling’s postconviction claim that his conviction for third-degree-

felony cocaine possession violated his constitutional right to an indictment alleged a

constitutional violation during the proceedings resulting in his conviction. See Fifth

Amendment to the United States Constitution; Article I, Section 10, Ohio Constitution

(conferring the right to be tried only upon a grand-jury indictment). That claim was,

therefore, reviewable by the common pleas court under the standards provided by the

postconviction statutes.

       {¶11} But Spurling filed his motion well after the time prescribed by R.C.

2953.21(A)(2) had expired. R.C. 2953.23 closely circumscribes the jurisdiction of a

common pleas court to entertain a late postconviction claim. The petitioner must

show either that he was unavoidably prevented from discovering the facts upon

which his postconviction claim depends, or that his claim is predicated upon a new

and retrospectively applicable right recognized by the United States Supreme Court

since the time for filing his petition had expired. And he must show “by clear and

convincing evidence that, but for constitutional error at trial, no reasonable




                                             6
                 OHIO FIRST DISTRICT COURT OF APPEALS



factfinder would have found [him] guilty of the offense of which [he] was convicted *

* *.” R.C. 2953.23(A)(1).

       {¶12} Spurling failed to satisfy the jurisdictional requirements for

entertaining his late postconviction right-to-indictment claim. He did not base that

claim upon a new, retrospectively applicable right. Nor could he be said to have been

unavoidably prevented from discovering the facts upon which the claim depended.

Accordingly, his right-to-indictment claim was subject to dismissal without an

evidentiary hearing. See R.C. 2953.23(A)(1) and 2953.21(F).

       {¶13} No jurisdiction to entertain R.C. 2945.75 claim.                    The

common pleas court also lacked jurisdiction to entertain Spurling’s claim in his

motion that convicting him of third-degree-felony possession, rather than fourth-

degree-felony possession, violated R.C. 2945.75.    That claim was not reviewable

under the postconviction statutes, because Spurling did not have a constitutional

right to be sentenced in conformity with R.C. 2945.75. Nor was the claim reviewable

under Crim.R. 33, governing motions for a new trial, or under Crim.R. 32.1,

governing motions to withdraw a guilty or no-contest plea, when Spurling was

convicted not following a trial, but upon his guilty plea to third-degree-felony

possession, and he did not seek to withdraw that plea. The claim was not reviewable

under R.C. Chapter 2731, governing mandamus, under R.C. Chapter 2721, governing

declaratory judgment, or under R.C. Chapter 2725, governing habeas corpus,

because the motion in which the claim was advanced did not satisfy those statutes’

procedural requirements. See R.C. 2731.04, 2721.12(A), and 2725.04. And Crim.R.

57(B) did not require the common pleas court to entertain the claim under Civ.R.




                                             7
                  OHIO FIRST DISTRICT COURT OF APPEALS



60(B), because Spurling’s conviction was reviewable under the procedures provided

for a direct appeal.

       {¶14} No jurisdiction to correct judgment as void. Finally, a court

always has jurisdiction to correct a void judgment. State ex rel. Cruzado v. Zaleski,

111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 18-19. The Ohio Supreme

Court in State v. Harper, Slip Opinion No. 2020-Ohio-2913, recently “realign[ed]”

its void-versus-voidable jurisprudence with “the traditional understanding of what

constitutes a void judgment,” to hold that “[w]hen a case is within a court’s subject-

matter jurisdiction and the accused is properly before the court, any error in the

exercise of that jurisdiction in imposing postrelease control renders the court’s

judgment voidable,” not void. Id. at ¶ 4-5 and 41-43. The court traced the roots of

that “understanding” back to its 1857 decision in Ex parte Shaw, 7 Ohio St. 81

(1857), and through its decision, more than a century later, in State v. Perry, 10 Ohio

St.2d 175, 226 N.E.2d 104 (1967). Under the “traditional” rule,

       a judgment of conviction is void if rendered by a court having either no

       jurisdiction over the person of the defendant or no jurisdiction of the

       subject matter, i.e., jurisdiction to try the defendant for the crime for

       which he was convicted. * * * Conversely, where a judgment of

       conviction is rendered by a court having jurisdiction over the person of

       the defendant and jurisdiction of the subject matter, such judgment is

       not void, and the cause of action merged therein becomes res judicata

       as between the state and the defendant.

Harper at ¶ 21-22, quoting Perry at 178-179.




                                               8
                   OHIO FIRST DISTRICT COURT OF APPEALS



         {¶15} “Subject-matter jurisdiction,” the court noted, “refers to the

constitutional or statutory power of a court to adjudicate a particular class or type of

case.” Harper at ¶ 23. Article IV, Section 4(B), of the Ohio Constitution and R.C.

2931.03 confer upon a common pleas court subject-matter jurisdiction over felony

cases.    See Harper at ¶ 24-25.     And a court has jurisdiction over any person

appearing before it under a valid indictment. See Stacy v. Van Coren, 18 Ohio St.2d

188, 189, 248 N.E.2d 603 (1969); Page v. Green, 174 Ohio St. 178, 178-179, 187

N.E.2d 592 (1963).

         {¶16} Applying the traditional rule, we hold that Spurling’s conviction was

not void, because the trial court had personal and subject-matter jurisdiction.

Spurling was properly before the court upon the return of an indictment charging the

felony offenses of cocaine possession and trafficking.       His counseled, knowing,

voluntary, and intelligent guilty plea to count one of that indictment, as amended,

waived his constitutional right to an indictment. See Stacy at 189. The trial court

acted within its subject-matter jurisdiction in accepting his guilty plea to third-

degree-felony possession, finding him guilty, and sentencing him for that offense to

the agreed prison term of two years. See Harper at ¶ 41. And any error in the trial

court’s exercise of that jurisdiction would have rendered his conviction voidable, not

void. Harper at ¶ 26; see, e.g., Stacy at 189 (holding that habeas corpus does not lie,

because jurisdiction is not lost, when a defendant is indicted for one crime and,

without further action by indictment or information, pleads guilty to a different

crime); Midling v. Perrini, 14 Ohio St.2d 106, 236 N.E.2d 557 (1968), syllabus

(holding that a judgment of conviction entered upon a counseled, knowing,




                                               9
                  OHIO FIRST DISTRICT COURT OF APPEALS



voluntary, and intelligent guilty plea “cannot be collaterally attacked on the ground

that the indictment fails to state one or more essential elements of the offense”).

       {¶17} Spurling’s conviction was not “void.” Therefore, the common pleas

court could not have afforded him, under its jurisdiction to correct a void judgment,

the relief sought in his “Motion to Vacate Void Judgment.”

                                         We Affirm

       {¶18} The common pleas court had no jurisdiction to entertain Spurling’s

“Motion to Vacate Void Judgment.” Therefore, the court properly dismissed the

motion without an evidentiary hearing. Accordingly, we overrule the assignments of

error and affirm the court’s judgment.

                                                                     Judgment affirmed.

MOCK, P.J., and CROUSE, J., concur.



Please note:

       The court has recorded its own entry on the date of the release of this opinion.




                                              10
