State v. Broom

[Cite as State v. Broom, 

.]


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

STATE OF OHIO                                        C.A. No.      27703

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
ANDRE BROOM                                          COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 1988 07 1062

                                 DECISION AND JOURNAL ENTRY

Dated: March 9, 2016



        WHITMORE, Presiding Judge.

        {¶1}    Appellant, Andre Broom, appeals an order of the Summit County Court of

Common Pleas. This Court affirms.

                                                I.

        {¶2}    In 1988, Mr. Broom pleaded guilty to trafficking in marijuana. On October 14,

2014, while facing sentencing in an unrelated federal case, Mr. Broom moved the trial court to

vacate his guilty plea and find the judgment against him to be void. The trial court denied the

motion on October 22, 2014. Mr. Broom appealed, but this Court dismissed his appeal as

untimely. On January 14, 2015, Mr. Broom moved the trial court to find that its previous order

was void, alleging that the trial court did not give him time to file a reply brief before denying

the motion. The trial court denied the motion, and Mr. Broom filed this appeal.
                                                  2


                                                  II.

                                Assignment of Error Number One

       THE TRIAL COURT VIOLATED LOCAL RULE 7.14 IN FAILING TO WAIT
       FOURTEEN (14) DAYS FROM THE DATE OF FILING OF THE MOTION,
       BEFORE DENYING [BROOM’S] MOTION TO FIND THE GUILTY PLEA
       AND JUDGMENT ENTRY VOID FILED ON OCTOBER 15, 2014 AND
       DENIED ON OCTOBER 22, 2014 “PRIOR TO” [BROOM’S] REPLY TO THE
       STATE’S RESPONSE TO THE MOTION FOR RELIEF.

       {¶3}    Broom’s first assignment of error argues that the trial court should have

concluded that because it did not afford him fourteen days to file a reply in support of his motion

to vacate his guilty plea and sentence, its order denying that motion was void. We disagree.

       {¶4}    A void judgment may be challenged at any time, either by direct appeal or

collateral attack. State v. Knuckles, 9th Dist. Summit No. 27571, 

, ¶ 8, citing

State v. Fischer, 

, 

. When an alleged defect renders a

judgment voidable rather than void, however, it must be challenged on direct appeal, and res

judicata applies to subsequent collateral challenges. See Knuckles at ¶ 12.

       {¶5}    An alleged violation of Loc.R. 7.14(A) of the Summit County Court of Common

Pleas may render a judgment voidable, but it does not mean the judgment is void. See, e.g., State

v. Holcomb, 9th Dist. Summit No. 21682, 

. Accordingly, Broom should

have raised this argument in a timely appeal from the trial court’s October 22, 2014, order. He

failed to do so, and his first assignment of error is overruled on that basis.

                                Assignment of Error Number Two

       THE TRIAL COURT ERR[ED] IN OVERRULING [BROOM’S] MOTION TO
       FIND THE GUILTY PLEA AND JUDGMENT ENTRY VOID BY APPLYING
       RES JUDICATA TO A VOID JUDGMENT CONTRARY TO THE SUPREME
       COURT’S HOLDING IN STATE V. FISHER, 128 OHIO ST.3D 92; 2010-
       OHIO-6738.
                                                 3


       {¶6}    Broom’s second assignment of error challenges the trial court’s October 22, 2014,

order. Broom filed an untimely appeal from that order, and this Court dismissed the appeal for

lack of jurisdiction. The October 22, 2014, order is not the subject of this appeal, so Broom’s

second assignment of error is not properly before this Court, and we decline to consider it.

                                                III.

       {¶7}    Broom’s first assignment of error is overruled, and his second assignment of error

is not properly before this Court. The judgment of the Summit County Court of Common Pleas

is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       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.




                                                       BETH WHITMORE
                                                       FOR THE COURT
                                     4




MOORE, J.
SCHAFER, J.
CONCUR.


APPEARANCES:

ANDRE B. BROOM, pro se, Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.