[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Lowe v. Smith, Slip Opinion No.
2025-Ohio-4541.]
NOTICE
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SLIP OPINION NO. 2025-OHIO-4541
LOWE, APPELLANT, v. SMITH, WARDEN, ET AL., APPELLEES.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Lowe v. Smith, Slip Opinion No. 2025-Ohio-4541.]
Habeas corpus—Even if preserved, any procedural irregularity in assignment of
visiting judge to try appellant’s criminal trial would render appellant’s
convictions and sentence voidable, not void—Appellant failed to show that
trial court patently and unambiguously lacked subject-matter jurisdiction—
Court of appeals’ judgment granting warden’s motion to dismiss granted.
(No. 2025-0064—Submitted May 13, 2025—Decided October 2, 2025.)
APPEAL from the Court of Appeals for Belmont County,
No. 24 BE 0038, 2024-Ohio-5902.
__________________
The per curiam opinion below was joined by KENNEDY, C.J., and FISCHER,
DEWINE, BRUNNER, DETERS, HAWKINS, and SHANAHAN, JJ.
SUPREME COURT OF OHIO
Per Curiam.
{¶ 1} Appellant, Dennis Ray Lowe, appeals the judgment of the Seventh
District Court of Appeals dismissing his petition for a writ of habeas corpus. When
Lowe filed the petition, he was incarcerated at the Belmont Correctional Institution,
serving a life sentence. He named appellee Shelbie Smith,1 the warden of the
institution, as the respondent, alleging that his convictions were void because the
visiting judge who presided over his trial was improperly assigned and thus lacked
jurisdiction. The warden moved to dismiss under Civ.R. 12(B)(6). The court of
appeals granted the motion, holding that Lowe had failed to demonstrate that his
convictions were void. Because Lowe’s petition fails to state a valid claim for
habeas relief, we affirm the Seventh District’s judgment.
I. BACKGROUND
A. Conviction and Sentencing by Visiting Judge
{¶ 2} In 2002, Lowe was indicted in Summit County for aggravated murder
and attempted aggravated murder, both with firearm specifications. Judge Mary F.
Spicer was assigned to the case at arraignment and presided over pretrial matters.
When Lowe’s case was tried, however, a visiting judge presided. The judgment
entry indicates that the visiting judge, Judge Mary Cacioppo, was “[s]itting on
[a]ssignment pursuant to Art. IV Sec. 6, Ohio Constitution” for Judge Spicer.
{¶ 3} Lowe pled not guilty to the charges and waived his right to a jury trial.
Following a bench trial, Judge Cacioppo found Lowe guilty of both charges and
both specifications and imposed consecutive sentences of life imprisonment on the
aggravated-murder charge, ten years on the attempted-aggravated-murder charge,
and three years on the firearm specifications after merging them.
1. After Lowe filed his petition, he was transferred to the Chillicothe Correctional Institution, where
Tim Shoop is the warden. We sua sponte join Shoop as an appellee in this case. See Humphrey v.
Bracy, 2021-Ohio-3836, ¶ 1 (sua sponte joining as appellee the warden of facility where the inmate
was transferred after filing habeas petition); State ex rel. Oliver v. Turner,
2018-Ohio-2102, ¶ 1
(same).
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January Term, 2025
B. Appeals and Collateral Attacks on Convictions and Sentence
{¶ 4} Lowe appealed, challenging the sufficiency and weight of the
evidence and the imposition of consecutive sentences. State v. Lowe, 2003-Ohio-
6807, ¶ 4, 27 (9th Dist.). He did not allege lack of subject-matter jurisdiction or
otherwise challenge the authority of Judge Cacioppo to hear the case. See id. The
Ninth District Court of Appeals affirmed his convictions and sentence,
id., and we
declined review,
2004-Ohio-3069.
{¶ 5} Lowe petitioned for postconviction relief and moved for a new trial
in 2006, arguing in both actions that his judgment of conviction was defective
because Judge Cacioppo lacked authority to sign the entry. See State v. Lowe, 2011-
Ohio-3355, ¶ 8 (9th Dist.). The trial court denied both the petition and the motion,
and Lowe did not appeal either judgment. In 2010, he filed a motion for a final,
appealable order, which the trial court denied. Id. at ¶ 9. Lowe appealed the denial
of this motion to the Ninth District, which affirmed. Id. at ¶ 8-9. The court of
appeals held that the motion was barred by res judicata because the claim it
presented was identical to the claims Lowe unsuccessfully asserted in his petition
for postconviction relief and motion for new trial. Id. at ¶ 8-9. We declined review.
2011-Ohio-5605.
C. Petition for Writ of Habeas Corpus
{¶ 6} In August 2024, Lowe filed his habeas petition in the Seventh District.
He claimed that his 2002 convictions and sentence were void because Judge
Cacioppo had not been properly assigned to the case and thus lacked jurisdiction
over it. The warden filed a motion to dismiss under Civ.R. 12(B)(6), asserting that
any procedural irregularity in Judge Cacioppo’s assignment rendered the judgment
voidable, not void. The court of appeals granted the motion on this basis. Lowe
has appealed as of right to this court.
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SUPREME COURT OF OHIO
II. ANALYSIS
A. Standard of Review
{¶ 7} This court reviews de novo a court of appeals’ Civ.R. 12(B)(6)
dismissal of a habeas corpus petition. State ex rel. Spencer v. Forshey, 2023-Ohio-
4568, ¶ 6. Dismissal is appropriate only if it appears beyond doubt from the
petition, presuming all factual allegations as true and making all reasonable
inferences in the nonmovant’s favor, that the inmate can prove no set of facts
entitling him to a writ of habeas corpus. Id. To be entitled to habeas relief, Lowe
must show that he is being unlawfully restrained of his liberty and that he is entitled
to immediate release from prison or confinement. R.C. 2725.01; State ex rel. Davis
v. Turner,
2021-Ohio-1771, ¶ 8. A writ of habeas corpus is not available when the
petitioner has an adequate remedy in the ordinary course of law, except when the
court that sentenced the petitioner to the confinement patently and unambiguously
lacked subject-matter jurisdiction. Leyman v. Bradshaw,
2016-Ohio-1093, ¶ 8-9.
B. Lowe’s Convictions and Sentence Were Voidable, Not Void
{¶ 8} Lowe argues that the trial court’s judgment of conviction and sentence
is void for lack of jurisdiction. Specifically, he contends that Judge Cacioppo, the
visiting judge who presided over his trial, “was never vested with jurisdiction or
legal authority to hear or decide any issues of case no. CR-02-09-2684[,] thus
making conviction and sentence void instead of voidable.” Lowe relies on a 2005
letter he received from this court’s judicial-assignment officer stating that “[t]he
Supreme Court has no record of the Chief Justice assigning Judge Cacioppo to hear
[State v. Lowe, Summit C.P. No. CR-2002-09-2684].” Alleging that no
documentation assigning Judge Cacioppo to his case exists, he argues that a
provision of the Rules of Superintendence was violated and, therefore, that the trial
court lacked jurisdiction to convict and sentence him. Because his convictions and
sentence are void, Lowe claims, he is entitled to a writ of habeas corpus.
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January Term, 2025
{¶ 9} This argument lacks merit. Taking as true Lowe’s allegation that no
docket entry or other record shows Judge Cacioppo’s assignment to his criminal
case, the trial court’s judgment would be voidable, not void. “In a court that
possesses subject-matter jurisdiction, procedural irregularities in the transfer of a
case to a visiting judge affect the court’s jurisdiction over the particular case and
render the judgment voidable, not void.” In re J.J., 2006-Ohio-5484, paragraph
one of the syllabus. We consistently have held that the improper assignment of a
judge does not void a conviction. See, e.g., State ex rel. Thompson v. Gonzales,
2024-Ohio-897, ¶ 12-13; State ex rel. Smith v. Triggs,
2023-Ohio-3098, ¶ 8; State
ex rel. Bell v. Pfeiffer,
2012-Ohio-54, ¶ 20. Here, the Summit County Common
Pleas Court had subject-matter jurisdiction over Lowe’s criminal trial for
aggravated murder and attempted aggravated murder, both felonies. See Smith v.
Sheldon,
2019-Ohio-1677, ¶ 8 (“a common pleas court has subject-matter
jurisdiction over felony cases”), citing R.C. 2931.03; see also R.C. 2901.02(C)
(classifying aggravated murder as a felony); 2923.02(E)(1) (classifying attempted
aggravated murder as a first-degree felony). Any procedural irregularity in Judge
Cacioppo’s assignment thus rendered Lowe’s convictions and sentence voidable,
not void. Accordingly, Lowe has not shown that the trial court patently and
unambiguously lacked subject-matter jurisdiction.
{¶ 10} Moreover, Lowe waived any alleged procedural irregularity by
failing to raise a timely objection. A party’s failure to timely object to the authority
of a visiting judge based on an improper case transfer or assignment waives the
procedural error. J.J. at ¶ 16-17. Lowe does not allege, and the record does not
show, that he timely objected to Judge Cacioppo’s authority or raised the issue of
improper assignment at any point during trial or on direct appeal. Lowe, 2003-
Ohio-6807, at ¶ 4, 27. Thus, Lowe has not properly preserved the issue and has
waived it for purposes of appellate review.
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SUPREME COURT OF OHIO
{¶ 11} Presuming all factual allegations to be true and making all
reasonable inferences in his favor, it appears beyond doubt that Lowe cannot state
a claim that would entitle him to a writ of habeas corpus. His 2002 convictions and
sentence were voidable, not void. Regardless, he waived the alleged procedural
error of improper judicial assignment by failing to raise the issue at trial or on direct
appeal. Thus, Lowe fails to state a valid claim for habeas relief. Dismissal was
appropriate.
III. CONCLUSION
{¶ 12} Because Lowe does not state a claim that entitles him to a writ of
habeas corpus, we conclude that the Seventh District Court of Appeals correctly
granted the warden’s motion to dismiss, and we affirm the court’s judgment
dismissing Lowe’s petition.
Judgment affirmed.
__________________
Dennis Ray Lowe, pro se.
Dave Yost, Attorney General, and Katherine E. Mullin, Assistant Attorney
General, for appellee.
__________________
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