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Date: 06-21-2021
Case Style:
STATE OF OHIO v. TERRY LITTLE
Case Number: 20CA011662
Judge: Thomas Teodosio
Court: IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
Plaintiff's Attorney: J. D. TOMLINSON, Prosecuting Attorney, and BRIAN P. MURPHY, Assistant Prosecuting
Attorney
Defendant's Attorney:
Description:
Akron, Ohio - Criminal defense attorney represented Defendant charged with aggravated murder.
In a prior appeal, this Court set out the pertinent facts and procedural history of this
case as follows:
In 2009, Little was convicted of aggravated murder and numerous additional
offenses. His convictions stemmed from the death of Lewis Turner, who was shot
and killed on July 30, 2007. The trial court imposed a total sentence of 30 years to
life in prison. Little filed a direct appeal to this Court and his convictions were
affirmed. State v. Little, 9th Dist. Lorain No. 10CA009758, 2011-Ohio-768
[(“Little I”)].
While his appeal was pending, Little filed a petition for post-conviction relief. The
trial court issued a journal entry with findings of fact and conclusions of law
denying the petition.
Several years later, on August 11, 2017, Little filed a pro se motion for leave to file
a motion for new trial in addition to a pro se motion for new trial based on newly 2
discovered evidence. After reviewing the record and the applicable law, the trial
court denied the motion for new trial.
State v. Little, 9th Dist. Lorain No. 17CA011210, 2018-Ohio-5267, ¶ 2-4 (“Little II”). Mr. Little
appealed the trial court’s denial of his motion for a new trial, and this Court affirmed. Id. at ¶ 16.
{¶3} On July 17, 2020, Mr. Little filed a pro se “Motion to Correct Void Sentence;
Failure to Properly Impose Post-Release Control Pursuant to R.C. 2929.191” with the trial court,
arguing that the court had improperly imposed post-release control in this matter. The trial court
denied the motion in a journal entry filed on July 23, 2020. The court explained that while it
improperly advised Mr. Little of post-release control at his December 23, 2009, sentencing
hearing, the error was corrected when the court properly advised him of post-release control at his
January 6, 2010, resentencing hearing. Also on January 6, 2010, the court filed a journal entry
nunc pro tunc to record the correction to the judgment of conviction, in accordance with R.C.
2929.191.
{¶4} Mr. Little now appeals from the trial court’s judgment denying his motion to correct
a void sentence and raises two assignments of error for this Court’s review. We have consolidated
his assignments of error because they require the same analysis.
II.
ASSIGNMENT OF ERROR ONE
TRIAL COURT ERRED IN FAILING TO TRACK THE STATUTORY
LANGUAGE SET FORTH IN R.C. 2967.28(F)(4)(c) TO PROPERLY IMPOSE
POST-RELEASE CONTROL.
ASSIGNMENT OF ERROR TWO
[THE] TRIAL COURT * * * FAILED TO INCLUDE THE MAXIMUM TERM
OF POST[-]RELEASE CONTROL IMPOSED IN CASE NUMBER 07CR074147
IN THE SENTENCING JOURNAL ENTRY OF CASE NUMBER
07CR074162[,] WHICH WOULD HAVE SUSTAINED FOR THE 3
AGGREGATE TERM OF POST[-]RELEASE CONTROL[;] THEREFORE [IT]
DID NOT COMPLY WITH CRIM.R.32(C).
{¶5} In his first and second assignments of error, Mr. Little argues that the trial court
erred in its imposition of post-release control and erred in denying his motion to correct a void
sentence. We disagree.
{¶6} At the outset, we must first consider the nature of Mr. Little’s motion to correct a
void sentence. “Courts may recast irregular motions 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. Pursuant to Former R.C. 2953.21(A)(1)(a):
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.
A vaguely titled motion may be treated as a petition for post-conviction relief under R.C.
2953.21(A)(1) when the motion was filed after a direct appeal, alleges a denial of constitutional
rights, seeks to render the judgment void or voidable, and requests that the judgment and sentence
be vacated. State v. Nichols, 9th Dist. Summit No. 29228, 2019-Ohio-3084, ¶ 8; State v. Reynolds,
79 Ohio St.3d 158, 160 (1997). Mr. Little’s motion to correct a void sentence meets these
requirements and may therefore be considered appropriately as a petition for post-conviction relief.
{¶7} Because Mr. Little filed a direct appeal from his convictions, and his case did not
involve a sentence of death, he was required to file his petition for post-conviction relief “no later
than three hundred sixty-five days after the date on which the trial transcript is filed in the court of 4
appeals in the direct appeal of the judgment of conviction * * *.” Former R.C. 2953.21(A)(2).1
The trial transcript was filed in Mr. Little’s direct appeal on August 6, 2010. Mr. Little did not file
his petition in the trial court, however, until July 17, 2020, almost a full decade past the statutory
deadline. His petition for post-conviction relief was therefore untimely. Apart from being
untimely, it was also successive, as Mr. Little previously filed a petition for post-conviction relief
in this case on July 29, 2010, during the pendency of his direct appeal. See Little II at ¶ 3.
{¶8} A trial court may not entertain untimely or successive petitions for post-conviction
relief unless the petitioner satisfies certain requirements. See R.C. 2953.23(A)(1). First, he must
show either that (1) he was “unavoidably prevented” from discovering the facts he relies on, or (2)
subsequent to the 365-day deadline, “the United States Supreme Court recognized a new federal
or state right that applies retroactively to persons in [his] situation, and the petition asserts a claim
based on that right.” R.C. 2953.23(A)(1)(a). Second, he must show “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 he was convicted * * *.” R.C. 2953.23(A)(1)(b).
{¶9} Mr. Little has made no attempt to satisfy the requirements of R.C. 2953.23(A)(1).
“[A] petitioner’s failure to satisfy R.C. 2953.23(A) deprives a trial court of jurisdiction to
adjudicate the merits of an untimely or successive post[-]conviction petition.” State v. Apanovitch,
155 Ohio St.3d 358, 2018-Ohio-4744, ¶ 36. Consequently, the trial court lacked authority to
entertain Mr. Little’s untimely and successive petition, and properly denied it. See Nichols at ¶
13.
1
Although Mr. Little was convicted in December of 2009, he filed his petition on July 17,
2020, so the amended versions of the post-conviction relief statutes that became effective on April
6, 2017, apply in this case. See, e.g., State v. Morris, 9th Dist. Summit No. 29419, 2019-Ohio5404, ¶ 6, fn. 1. 5
{¶10} Mr. Little’s claim that his sentence is void does not change this result. See State v.
Brown, 9th Dist. Summit No. 29667, 2020-Ohio-4671, ¶ 12. “A sentence is only void ‘when a
sentencing court lacks jurisdiction over the subject-matter of the case or personal jurisdiction over
the accused.’” Id., quoting State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, ¶ 42. Mr.
Little’s argument is therefore properly characterized as one asserting that his sentence is voidable,
not void. See Brown at ¶ 12.
{¶11} Even assuming arguendo that the trial court had authority to entertain Mr. Little’s
petition, his claims would nonetheless be precluded by the doctrine of res judicata. See Nichols at
¶ 14. Pursuant to the doctrine of res judicata:
[A] final judgment of conviction bars a convicted defendant who was represented
by counsel from raising and litigating in any proceeding except an appeal from that
judgment, any defense or any claimed lack of due process that was raised or could
have been raised by the defendant at the trial, which resulted in that judgment of
conviction, or on an appeal from that judgment.
State v. Perry, 10 Ohio St.2d 175 (1967), paragraph nine of the syllabus. Mr. Little’s argument
that the trial court failed to properly impose post-release control should have been made in his
direct appeal and is now barred by res judicata. See Harper at ¶ 43 (“[A]ny claim that the trial
court has failed to properly impose post[-]release control in the sentence must be brought on appeal
from the judgment of conviction or the sentence will be subject to res judicata.”).
{¶12} For the above reasons, Mr. Little’s first and second assignments of error are both
overruled.
Outcome: Mr. Little’s first and second assignments of error are overruled. The judgment of
the Lorain Count Court of Common Pleas is affirmed.
Judgment affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: