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Date: 05-01-2021
Case Style:
STATE OF OHIO vs. KEVIN ROBERSON
Case Number: C-200074
Judge: Marilyn Zayas
Court: IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
Plaintiff's Attorney: Joseph T. Deters, Hamilton County Prosecuting Attorney, and H. Keith Sauter,
Assistant Prosecuting Attorney
Defendant's Attorney:
Description:
Cincinnati, Ohio - Criminal defense attorney represented Kevin Roberson with appealing the Hamilton County Common Pleas Court’s judgment overruling his 2020 “Motion to Vacate Void Judicial Sanction.”
{¶2} In 2016, in the case numbered B-1505520, Roberson was convicted
upon guilty pleas to attempted felonious assault and carrying a concealed weapon.
The trial court imposed prison terms of “1 yr.” each for attempt, its accompanying
firearm specification, and carrying a concealed weapon and imposed a period of
postrelease-control supervision of up to 3 years. Roberson did not appeal his
convictions. Upon his release from prison in 2017, he was placed on postrelease
control.
{¶3} In 2019, in the case numbered B-1804845-A, Roberson was convicted
upon guilty pleas to theft and telecommunications fraud. The trial court imposed
concurrent prison terms of 12 months for theft and 12 months for
telecommunications fraud, along with a consecutive prison term of 18 months for
violating the postrelease-control sanction imposed in the case numbered B-1505520,
“for an agreed aggregate sentence of 30 months * * *.” Again, Roberson did not
appeal.
{¶4} In 2020, in the case numbered B-1804845-A, Roberson filed with the
common pleas court the “Motion to Vacate Void Judicial Sanction” from which this
appeal derives. In that motion, Roberson asked to court to vacate the prison
sentence imposed in B-1804845-A for his violation of the postrelease-control
sanction imposed in B-1505520. He argued that postrelease control could not have
been imposed in the absence of a “valid” prison sentence, and that the “1 yr.” prison
terms imposed in B-1505520 for attempted felonious assault and carrying a OHIO FIRST DISTRICT COURT OF APPEALS
3
concealed weapon were void, when the statutorily authorized prison terms for those
offenses were “twelve * * * months.”
{¶5} The common pleas court overruled the motion upon concluding both
that the court lacked jurisdiction to entertain the motion and that the motion lacked
merit. In this appeal, Roberson presents a single assignment of error challenging the
overruling of the motion. The challenge is untenable.
No Jurisdiction
{¶6} In his “Motion to Vacate Void Judicial Sanction,” Roberson asked the
common pleas court to vacate as void the prison term imposed in 2019 for violating
the postrelease-control sanction imposed in 2016. He argued that the 2019
postrelease-control violation was based on the unauthorized postrelease-control
portions of the unauthorized sentences imposed in 2016 for attempt and concealed
carry. In this appeal, he challenges the common pleas court’s denial of relief on that
basis. We conclude that the common pleas court had no jurisdiction to entertain the
motion, and that this court has no jurisdiction to review the judgment overruling the
motion.
{¶7} No common pleas court jurisdiction. Roberson failed to
designate in his “Motion to Vacate Void Judicial Sanction” a statute or rule under
which the relief sought might have been afforded. Thus, the common pleas court was
left to “recast” the motion “into whatever category necessary to identify and establish
the criteria by which the motion should be judged.” See State v. Schlee, 117 Ohio
St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12 and syllabus.
{¶8} But the common pleas court could not have afforded Roberson the relief
sought in his motion pursuant to any postconviction procedure provided by statute
or rule. The motion was not reviewable by the court under the standards provided by
R.C. 2953.21 et seq., governing the proceedings upon a petition for postconviction
relief, because the motion did not seek relief based on a constitutional violation OHIO FIRST DISTRICT COURT OF APPEALS
4
during the proceedings resulting in Roberson’s convictions. See State v. Powell, 90
Ohio App.3d 260, 264, 629 N.E.2d 13 (1st Dist.1993) (citing R.C. 2953.21(A)(1) to
hold that “the violation upon which [a postconviction] petitioner relies to establish
his right to relief must be of constitutional dimension, and it must have occurred at
the time the petitioner was tried and convicted of a criminal offense”). The motion
was not reviewable under Crim.R. 33 as a motion for a new trial, because the
convictions in both cases were upon guilty pleas. And the motion was not reviewable
under Crim.R. 32.1, when the motion did not seek to withdraw those guilty pleas.
Nor was the motion reviewable under R.C. Chapter 2731 as a petition for a writ of
mandamus, under R.C. Chapter 2721 as a declaratory judgment action, or under R.C.
Chapter 2725 as a petition for a writ of habeas corpus, because the motion 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
motion under Civ.R. 60(B), because Roberson’s sentences were reviewable under the
procedures provided for a direct appeal.
{¶9} Nor could the common pleas court have corrected Roberson’s sentences
under its jurisdiction to correct a void judgment. Those sentences are not void
because the trial court, in imposing sentence, acted with personal and subject-matter
jurisdiction. See State v. Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784, 162
N.E.3d 776, ¶ 43 (holding that an error in a sentence imposed by a court with
personal and subject-matter jurisdiction is voidable, not void, and the voidable
sentence may not be challenged in a postconviction motion).
{¶10} Because the common pleas court had no jurisdiction to entertain the
motion, the court should have dismissed the motion. Therefore, the court cannot be
said to have erred in declining to grant the relief sought in the motion.
{¶11} No court of appeals jurisdiction. Moreover, Article IV, Section
3(B)(2) of the Ohio Constitution confers upon an appellate court only “such OHIO FIRST DISTRICT COURT OF APPEALS
5
jurisdiction as may be provided by law to review and affirm, modify, or reverse
judgments or final orders of the courts of record inferior to the court of appeals
within the district * * *.” No law provides this court with jurisdiction to review the
common pleas court’s judgment denying the relief sought in Roberson’s “Motion to
Vacate Void Judicial Sanction.”
{¶12} A court of appeals has jurisdiction under R.C. 2953.02 or 2953.08 to
review a judgment of conviction entered in a criminal case. Here, Roberson does not
appeal the 2016 and 2019 judgments of conviction imposing the sentences
challenged in his motion. He appeals the entry denying him the relief sought in his
postconviction motion seeking an order vacating those sentences. That entry is not
reviewable under the statutory grant of jurisdiction to review a criminal conviction.
{¶13} A court of appeals also has jurisdiction under R.C. 2953.23(B) to
review an order awarding or denying postconviction relief. But as we determined,
Roberson’s motion was not reviewable by the common pleas court under the
postconviction statutes. In turn, the entry overruling that motion was not appealable
under R.C. 2953.23(B).
{¶14} Finally, a court of appeals has jurisdiction under R.C. 2505.03(A) to
review and affirm, modify, or reverse the “final order, judgment or decree” of an
inferior court. R.C. 2505.02 identifies four types of “final order[s]” pertinent to our
analysis here: an order that “affects a substantial right” and is entered (1) “in an
action” and “in effect determines the action and prevents a judgment,” (2) “in a
special [statutory] proceeding” that “prior to 1853 was not denoted as an action at
law or a suit in equity,” or (3) “upon a summary application in an action after
judgment”; and (4) an order that “grants or denies a provisional remedy,” entered in
“a proceeding ancillary to an action,” if the order “in effect determines the action
with respect to the provisional remedy and prevents a judgment in the action in favor
of the appealing party with respect to the provisional remedy,” and “[t]he appealing OHIO FIRST DISTRICT COURT OF APPEALS
6
party would not be afforded a meaningful or effective remedy by an appeal following
final judgment as to all proceedings, issues, claims, and parties in the action.”
(Emphasis added.) R.C. 2505.02(A) and (B)(1), (2) and (4).
{¶15} Thus, R.C. 2505.02 defines a “final order” for purposes of the grant of
jurisdiction under R.C. 2505.03 as an order entered in a pending “action” or
“proceeding” or “upon a [postjudgment] summary application.” As we determined,
the common pleas court should have dismissed Roberson’s motion for lack of
jurisdiction, because the motion was not reviewable pursuant to any postconviction
procedure provided by statute or rule or under the jurisdiction to correct a void
judgment. Thus, the common pleas court’s entry denying the relief sought in the
motion was not entered “in an action,” “in a special [statutory] proceeding,” “in a
proceeding ancillary to an action,” or “upon a [postjudgment] summary application.”
See R.C. 2505.02(B)(1), (2) and (4). Accordingly, the entry is not a “final order”
reviewable by this court under the jurisdiction conferred by R.C. 2505.03(A), to
review and affirm, modify, or reverse a “final order, judgment or decree.”
Appeal Dismissed
Outcome: This court has no jurisdiction to review the common pleas court’s judgment overruling Roberson’s “Motion to Vacate Void Judicial Sanction.”
Accordingly, we dismiss this appeal.
Appeal dismissed.
Plaintiff's Experts:
Defendant's Experts:
Comments: