[Cite as State v. Thomas,
2014-Ohio-64.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 13CA010424
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
RICHARD J. THOMAS COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellant CASE No. 93CR043635
DECISION AND JOURNAL ENTRY
Dated: January 13, 2014
BELFANCE, Presiding Judge.
{¶1} Defendant-Appellant Richard Thomas appeals, pro se, from the entry of the
Lorain County Court of Common Pleas denying his “motion to correct illegal void sentence
pursuant to subject matter jurisdiction[.]” For the reasons set forth below, we affirm.
I.
{¶2} Mr. Thomas was indicted in April 1993 on one count of aggravated murder with
an accompanying capital specification and an accompanying firearm specification, one count of
attempted aggravated murder with an accompanying firearm specification, and one count of
having weapons under disability. Ultimately, Mr. Thomas pleaded guilty to the charges and
specifications. Mr. Thomas was sentenced to life with parole eligibility after serving 30 years
plus 3 years actual incarceration for the firearm specification for the aggravated murder
conviction, 10 to 25 years for the attempted murder conviction, and one and one half years for
the conviction for having weapons while under disability. Mr. Thomas failed to appeal his
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conviction. On June 10, 2013, Mr. Thomas filed a “motion to correct illegal void sentence
pursuant to subject matter jurisdiction[,]” in which he asserted that (1) the trial court erred in
accepting his plea without a written jury trial waiver; (2) the State failed to present sufficient
evidence to support a conviction for aggravated murder at sentencing; (3) the trial court erred in
failing to convene a three-judge panel to accept his plea or make findings; (4) the single judge
failed to make certain findings at his plea hearing; and (5) the trial court illegally sentenced him
to 10 to 25 years for the conviction of attempted aggravated murder. The trial court denied his
motion without a hearing.
{¶3} Mr. Thomas has appealed from that entry raising three assignments of error for
our review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN ACCEPTING APPELLANT’S PLEAS OF
GUILTY BY A SINGLE JUDGE IN THE FOLLOWING RESPECTS[.]
{¶4} Mr. Thomas asserts in his first assignment of error that the trial court erred in
denying his motion to correct an illegal void sentence because the trial court erred in failing to
convene a three-judge panel and failing to have that panel make findings, that the single judge
erred in failing to make certain findings at his plea hearing, and that his sentence for attempted
aggravated murder is an illegal sentence. We do not agree.
{¶5} We begin by noting that Mr. Thomas’ entire motion was based on the premise
that certain errors by the trial court rendered its judgment void. This Court has previously stated
that “[a] defendant may challenge a void judgment at any time.” State v. Dawson, 9th Dist.
Summit No. 26500, 2013-Ohio-1767, ¶ 6. Thus, based upon the specific arguments advanced by
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Mr. Thomas below, we consider whether the trial court committed reversible error in denying his
motion on the basis that the January 1994 judgment is void.
{¶6} To the extent that Mr. Thomas argues that the trial court’s judgment was void for
failure to convene a three-judge panel to accept his guilty plea to a capital offense and for failure
to have a three-judge panel make necessary findings, we find this contention without merit. The
Supreme Court of Ohio has held that “[t]he failure of a court to convene a three-judge panel, as
required by R.C. 2945.06, does not constitute a lack of subject-matter jurisdiction that renders
the trial court’s judgment void ab initio and subject to collateral attack in habeas corpus. It
constitutes an error in the court’s exercise of jurisdiction that must be raised on direct appeal.”
Pratts v. Hurley, 102 Ohio St.3d 81,
2004-Ohio-1980, syllabus; see also Kelley v. Wilson,
103
Ohio St.3d 201,
2004-Ohio-4883, ¶ 9-14 (“Therefore, despite our language in [State v. Green,
81
Ohio St.3d 100 (1998),] that the specified errors rendered the sentence ‘void,’ the judgment was
voidable and properly challenged on direct appeal. Consequently, any error by Kelley’s three-
judge panel [in failing to comply with Crim.R. 11 and R.C. 2945.06] was an error in the exercise
of its jurisdiction that is not cognizable in habeas corpus.”). Accordingly, even assuming Mr.
Thomas was entitled to have his guilty plea accepted by a three-judge panel and have that panel
make findings, such error would not render the trial court’s judgment void for lack of subject
matter jurisdiction. See Pratts at syllabus; Kelley at ¶ 9-14. Thus, the trial court did not err in
denying Mr. Thomas’ motion on this basis.
{¶7} To the extent Mr. Thomas asserted in his motion that the judgment was void
because the single judge failed to make required findings at his plea, we note that, even assuming
that such error rendered the judgment void, it appears that Mr. Thomas failed to provide a
transcript of his plea and/or sentencing hearing for the trial court to review, so the trial court
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could not even review the merits of Mr. Thomas’ argument. Thus, we cannot conclude the trial
court erred in overruling Mr. Thomas’ argument on that basis as Mr. Thomas failed to
demonstrate any error, let alone that the trial court acted without subject matter jurisdiction.
Moreover, Mr. Thomas has failed to include a transcript of his plea or sentencing hearing in the
record on appeal, so even assuming he had provided it for the trial court, we would be unable to
properly review his argument. See App.R. 9(B). Accordingly, we overrule his argument on that
basis.
{¶8} Mr. Thomas next asserts that the trial court erred in denying his motion because
his sentence for attempted aggravated murder was an illegal sentence rendering it void. Mr.
Thomas asserts that his sentence fell outside the range authorized by former R.C. 2929.11 and
should have been less than 10 to 25 years. However, Mr. Thomas’ sentence of 10 to 25 years for
attempted aggravated murder was within the permitted range. See former R.C. 2923.02(E);
former R.C. 2929.11(A), (B)(1). Accordingly, even assuming that sentencing Mr. Thomas
outside the permissible range would render his sentence void, Mr. Thomas has not demonstrated
such an error. See State v. Fischer, 128 Ohio St.3d 92,
2010-Ohio-6238, ¶ 8. Thus, we cannot
say that the trial court erred in denying his motion on that basis. Mr. Thomas’ first assignment of
error is overruled.
ASSIGNMENT OF ERROR II
THIS IS A CASE OF GREAT GENERAL INTEREST[.] THE CLERK OF THE
LORAIN COUNTY COMMON PLEAS COURT ROUTINELY FAILS TO
PLACE A “TIME STAMP” SHOWING JOURNALIZATION BY THE CLERK
OF COURT ON THE ENTRY AS REQUIRED BY CRIMINAL[] RULE 32(C).
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ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED WHEN IT PLACE[D] APPELLANT TWICE IN
JEOPARDY FOR THE SAME OFFENSE IN VIOLATION OF THE FIFTH
AND FOURTEENTH AMENDMENT OF THE UNITED STATES
CONSTITUTION AND ARTICLE I, SECTION 10 OF OHIO CONSTITUTION.
{¶9} Mr. Thomas raises additional arguments in his second and third assignments of
error. However, we note that none of those arguments were raised in his motion in the trial
court. Accordingly, the trial court never had the opportunity to consider these arguments. We
decline to review these arguments in the first instance, but note that a cursory review of his
arguments reveals none that would render the trial court’s judgment void. See State v. Lanik, 9th
Dist. Summit Nos. 26192, 26224, 2013-Ohio-361, ¶ 12 (declining to review an argument the
defendant failed to make in a motion to suppress and instead made for the first time on appeal);
see also Dawson,
2013-Ohio-1767, at ¶ 6 (“The question of whether a judgment is void is
distinct from the question of whether it is a final, appealable order.”); State v. Marbury, 9th Dist.
Summit No. 26889,
2013-Ohio-5306, ¶ 4 (“This Court has held that a trial court’s failure to
merge allied offenses does not result in a void sentence.”) (Internal quotations and citations
omitted.). Thus, we overrule Mr. Thomas’ second and third assignments of error.
III.
{¶10} In light of the foregoing, we affirm the judgment of the Lorain County Court of
Common Pleas which denied Mr. Thomas’ motion to “correct illegal void sentence pursuant to
subject matter jurisdiction[.]”
Judgment affirmed.
There were reasonable grounds for this appeal.
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We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, 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.
EVE V. BELFANCE
FOR THE COURT
WHITMORE, J.
CONCURS.
CARR, J.
CONCURRING IN JUDGMENT ONLY.
{¶11} I would construe Thomas’ motion as a petition for post-conviction relief.
Thomas’ filing exceeded the 180-day limit prescribed by R.C. 2953.21(A)(2), and he has not
demonstrated that his petition falls within exceptions set forth in R.C. 2953.23(A)(1)/(2). Thus, I
would conclude that the trial court was without statutory authority to address the merits of the
petition.
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APPEARANCES:
RICHARD THOMAS, pro se, Appellant.
DENNIS P. WILL, Prosecuting Attorney, an NATASHA RUIZ GUERRIERI, Assistant
Prosecuting Attorney, for Appellee.
