[Cite as State v. Pickens,
2021-Ohio-3878.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 9-21-16
v.
HAROLD A. PICKENS,
OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
Trial Court No. 2016 CR 34
Judgment Affirmed
Date of Decision: November 1, 2021
APPEARANCES:
Harold A. Pickens, Appellant
Nathan R. Heiser for Appellee
Case No. 9-21-16
MILLER, J.
{¶1} Defendant-appellant, Harold A. Pickens, appeals the April 12, 2021
judgment of the Marion County Court of Common Pleas denying in part and
dismissing in part his “Motion to Withdraw No Contest Pleas-Void Judgment.” For
the reasons that follow, we affirm.
I. Background
{¶2} On January 28, 2016, the Marion County Grand Jury indicted Pickens
on one count of gross sexual imposition in violation of R.C. 2907.05(A)(4), a third-
degree felony, and one count of rape in violation of R.C. 2907.02(A)(1)(b), a first-
degree felony. At arraignment, Pickens pleaded not guilty to both counts of the
indictment.
{¶3} At a June 3, 2016 hearing, Pickens and the State indicated that a plea
agreement had been reached. Pursuant to the agreement, the State requested
dismissal of the gross-sexual-imposition charge and asked the trial court to amend
the indictment to remove from the rape charge an allegation that “[t]he victim is
under the age of 10 years old.” Granting both requests, the trial court dismissed the
gross-sexual-imposition charge and amended the indictment. In exchange for the
dismissal of the gross-sexual-imposition charge and the amendment of the
indictment, Pickens withdrew his previous not-guilty plea and pleaded no contest to
the amended rape charge. The trial court accepted Pickens’s plea to the amended
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rape charge, found him guilty, and proceeded immediately to sentence him to the
statutorily required sentence of 10 years to life in prison for the rape of a child under
13 years of age. R.C. 2907.02(B) and 2971.03(B)(1)(a). Pickens appealed, and on
April 3, 2017, this court affirmed Pickens’s conviction and sentence. State v.
Pickens, 3d Dist. Marion No. 9-16-35, 2017-Ohio-1231, ¶ 57.
{¶4} On February 5, 2021, Pickens filed a “Motion to Withdraw No Contest
Pleas-Void Judgment.” In his motion, Pickens claimed that “once [the trial court]
amended [the rape charge] and deleted the alleged age of the victim to be less than
10 years old, the court effectively divested itself of subject-matter and personal
jurisdiction to impose a life sentence.” He also maintained that he received
ineffective assistance of counsel in that his trial counsel “induced [him] to plead no
contest to a charge and sentence that he could not have legally been convicted of by
bench or jury.” Pickens argued that his conviction and sentence are consequently
void and that “he is entitled to either withdrawal of the no-contest plea or to have
his life term modified to reflect a [definite] sentence for a first degree felony.” The
State failed to file a response to Pickens’s motion.
{¶5} On April 12, 2021, the trial court denied Pickens’s motion in part and
dismissed it in part. Specifically, the trial court denied the portion of Pickens’s
motion in which he argued that his conviction and sentence are void as being
contrary to law. The trial court concluded that the language deleted from the
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original indictment “goes to a higher penalty, not to the minimum requirements for
a conviction,” and that Pickens’s sentence of 10 years to life in prison is expressly
authorized by statute for the offense to which he pleaded no contest. See R.C.
2907.02(B) and 2971.03(B)(1)(a). Regarding Pickens’s claim of ineffective
assistance of counsel, the trial court held that “the claim is essentially an untimely
request for postconviction relief.” Accordingly, the trial court dismissed this portion
of Pickens’s motion for lack of jurisdiction.
{¶6} On May 7, 2021, Pickens timely filed a notice of appeal. He raises five
assignments of error for our review.
II. Assignments of Error
1. The defendant’s no contest plea to the charge of rape with a
penalty of life imprisonment is void as being unauthorized by law.
2. Defendant’s plea of no contest was not made knowingly,
intelligently, and voluntarily where he was deprived of the
effective assistance of counsel.
3. The defendant’s plea of no contest was not made knowingly,
intelligently, and voluntarily when the State of Ohio intentionally
misled the defendant as to the degree of felony when it agreed to
remove the age of the victim from the indictment knowing the
court would still impose the life sentence as it did.
4. The trial court abused its discretion when it denied
defendant’s motion due to the State’s refusal to respond to said
motion and because the defendant was entitled to relief on his
motion.
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5. The trial court abused its discretion when it determined
appellant’s ineffective assistance claim was an untimely
postconviction motion.
III. Discussion
{¶7} In his five assignments of error, Pickens argues the trial court erred by
denying and dismissing his motion. Before considering the merits of the trial court’s
decision to deny and dismiss Pickens’s motion, we first address Pickens’s
contention that the trial court erred by treating his motion as an untimely petition
for postconviction relief rather than as a Crim.R. 32.1 motion to withdraw his no-
contest plea. We note that Pickens and the State agree that Pickens’s motion should
have been treated as a Crim.R. 32.1 motion to withdraw a no-contest plea. In
addition, in his motion, Pickens expressly invoked Crim.R. 32.1, cited the standard
trial courts use when determining whether to grant Crim.R. 32.1 motions, and asked
that he be allowed to withdraw his no-contest plea. Therefore, given that Pickens
prosecuted his motion as a Crim.R. 32.1 motion and that there is no actual dispute
between the parties concerning the identity of Pickens’s motion, we conclude that
it would have been proper for the trial court to evaluate Pickens’s motion under the
standards governing Crim.R. 32.1 motions.
{¶8} Nonetheless, the trial court was right to dismiss at least some portions
of Pickens’s motion for lack of jurisdiction. Pickens’s motion to withdraw his no-
contest plea was filed nearly four years after we affirmed his conviction and
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sentence. “‘[A] trial court has no jurisdiction to consider a Crim.R. 32.1 motion to
withdraw a guilty [or no-contest] plea after the judgment of conviction has been
affirmed by an appellate court.’” State v. James, 3d Dist. Hancock No. 5-19-30,
2020-Ohio-720, ¶ 9, quoting State v. Streeter, 3d Dist. Allen No. 1-08-52, 2009-
Ohio-189, ¶ 14, citing State ex rel. Special Prosecutors v. Judges, Court of Common
Pleas,
55 Ohio St.2d 94, 97-98 (1978).
{¶9} However, insofar as Pickens’s motion contained claims that his
conviction and sentence are void, such claims could not be reflexively dismissed for
lack of jurisdiction. “The authority to vacate a void judgment is ‘an inherent power
possessed by Ohio courts.’” State v. Love, 7th Dist. Mahoning No. 17 MA 0039,
2018-Ohio-1140, ¶ 18, quoting Patton v. Diemer,
35 Ohio St.3d 68 (1988),
paragraph four of the syllabus. “[A] court always has jurisdiction to correct a void
judgment.” State v. Spurling, 1st Dist. Hamilton No. C-190629,
2020-Ohio-3792,
¶ 14. Thus, if Pickens’s conviction and sentence are in fact void, the trial court
would have had jurisdiction to set them aside notwithstanding that the trial court
otherwise lacked jurisdiction to consider Pickens’s motion under Crim.R. 32.1.
{¶10} But Pickens’s conviction and sentence are not void. “A judgment or
sentence is void only if it is rendered by a court that lacks subject-matter jurisdiction
over the case or personal jurisdiction over the defendant.” State v. Henderson, 161
Ohio St.3d 285,
2020-Ohio-4784, ¶ 43. Even if a sentence imposed is not authorized
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by law, the sentence would only be voidable as long as the trial court possessed both
subject-matter and personal jurisdiction. Id.
{¶11} Although Pickens’s claims are confusing and difficult to follow, he
seemed to argue in his motion that his conviction and sentence are void because (1)
the indictment was improperly amended; (2) his sentence exceeded the statutory
maximum for the offense to which he pleaded no contest; and (3) he received
ineffective assistance of counsel. Yet, even if each of Pickens’s contentions were
true, which we do not find to be the case, they are not jurisdictional in nature so as
to be capable of rendering his conviction and sentence void. See State ex rel. Davis
v. Turner, 164 Ohio St.3d 395,
2021-Ohio-1771, ¶ 11 (“[S]entencing errors are not
jurisdictional ….”); State ex rel. Raglin v. Brigano,
82 Ohio St.3d 410, 410 (1998)
(holding that claims challenging the validity or sufficiency of an indictment are
nonjurisdictional in nature); State v. Powell, 4th Dist. Gallia No. 20CA3, 2021-
Ohio-200, ¶ 51 (concluding that the defendant’s ineffective-assistance-of-counsel
claim, “even if meritorious, was not a jurisdictional error and did not deprive the
adult court of jurisdiction”); State v. Hayes, 1st Dist. Hamilton No. C-130450, 2014-
Ohio-1263, ¶ 5 (concluding that the defendant’s ineffective-assistance-of-counsel
claim, even if demonstrated, would not have rendered his convictions void). As
Pickens did not point to anything else that would have potentially deprived the trial
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court of subject-matter or personal jurisdiction, the trial court correctly determined
that Pickens’s conviction and sentence are not void.
{¶12} Finally, it is of no moment that the State failed to file a response to
Pickens’s motion. It is plain from the face of Pickens’s motion that Pickens did not
present the trial court with any valid basis for concluding that his conviction and
sentence are void. In addition, the trial court would have had to do little more than
conduct a cursory review of Pickens’s case file and of Pickens’s motion to recognize
that Pickens’s prior appeal in this case divested the court of jurisdiction to consider
the motion under Crim.R. 32.1. While a response from the State would have been
helpful to the trial court, it was not necessary to the trial court’s determination of
Pickens’s motion, and the State’s failure to file a response certainly did not bar the
trial court from ruling against Pickens.
{¶13} In sum, we conclude that because Pickens’s conviction and sentence
are not void and the trial court did not have jurisdiction to consider his motion under
Crim.R. 32.1, the trial court was completely without jurisdiction to consider the
claims raised in Pickens’s motion. Accordingly, the trial court technically should
have dismissed the entirety of Pickens’s motion rather than denying it in part and
dismissing it in part. Nevertheless, a trial court does not commit reversible error by
denying a motion it should have dismissed for lack of jurisdiction. See State v.
Jackson, 3d Dist. Allen No. 1-19-63, 2020-Ohio-4015, ¶ 15 (noting that although
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trial courts should dismiss untimely postconviction petitions for lack of jurisdiction,
“a trial court does not commit reversible error by denying an untimely
postconviction petition”).
{¶14} Pickens’s assignments of error are overruled.
IV. Conclusion
{¶15} For the foregoing reasons, Pickens’s assignments of error are
overruled. Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the Marion County Court
of Common Pleas.
Judgment Affirmed
WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.
/jlr
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