[Cite as State v. White , 2022-Ohio-605.]

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

STATE OF OHIO Appellee

v. CLIFTON WHITE, III Appellant C.A. No. 30041

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 1996-01-0059

DECISION AND JOURNAL ENTRY Dated: March 2, 2022

TEODOSIO, Presiding Judge. {¶1} Appellant, Clifton White III, a ppeals from the trial court’s ju dgment denying his motion to vacate void judgment in the Summit County Court of Co mmon Pleas. This Court

affirms.

I. {¶2} On Christmas Eve in 1995, Mr. White shot and killed two people in his apartment with deer slugs from a 12-gauge pump shotgun and then tried to kill a third person inside of a Kentucky Fried Chic ken restaurant. See State v. White , 85 Ohio St.3d 433, 434 (1999). The third victim survived, but lost most of his right ear, part of his skull, and the right upper lobe of

his brain. See id. Mr. White was later convicted after a jury trial of aggravate d murder with two death specifications, murder, and attempted aggravated murder, along with firearm specifications

for each count. See id. at 435. Following a mitigation h earing, the trial court sente nced him to prison terms for murder and atte mpted aggravated murder and imp osed a sentence of death for2

aggravated murder. See id. The Supreme Court of Ohio affi rmed his convictions and death sentence on appeal. See id. {¶3} Mr. White filed a petition for pos t-conviction relief in the tr ial court, which was

denied. This Court affirmed the trial court’s judgment on appe al. See State v. White , 9th Dist. Summit No. 19040, 1999 WL 394938 (June 16, 1999). Years later, he filed a second petition for post-conviction relief, which the trial court denied. This Cou rt affirmed the trial court’s judgment on appeal, but that deci sion was later reversed by the Supreme Court of Ohio. See

State v. White , 9th Dist. Summit No. 22591, 2005-Ohio-6990, rev’d , 118 Ohio St.3d 12, 2008- Ohio-1623. Because Mr. White was intellectually disabled 1 and thus ineligible for the death penalty pursuant to Atkins v. Virginia , 536 U.S. 304 (2002), and State v. Lott , 97 Ohio St.3d 303, 2002-Ohio-6625, the matter was remanded to the trial court for resentencing. Upon remand, the

trial court resentenced Mr. Wh ite to 61-76 years to life in pri son. Many years later, Mr. White filed a motion to vacate void judgment in the trial court, chal lenging his original indictment as defective. The court reclassified the motion as a petition for post-conviction relief and denied it as being both untimely and successive. {¶4} Mr. White now appeals from the tr ial court’s judgment denying h is motion to vacate void judgment and raises one assignment of error for thi s Court’s review.

1 In recent years, both the Supreme Court of Ohio and the United States Supreme Court have made a concerted effort to use the term “intellectually di sabled” rather than “mentally retarded,” and we s hall do the same. See, e.g., State v. Ford , 158 Ohio St.3d 139, 2019-Ohio4539, ¶ 44, fn.1; Brumfield v. Cain , 576 U.S. 305, 308 (2015), fn.1.3

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO VOID (SIC) SENTENCE WHERE DEFENDANT’S SENTENCE IS VOID AS A MATTER OF LAW. {¶5} In his sole assignment of error, Mr. White argues that the tria l court erred in denying his motion to vacate void judgment because the indictme nt in this case was allegedly never signed by a foreperson or deputy foreperson. According t o Mr. White, the defective indictment violated his due pro cess rights and his right to fun damentally fair grand jury proceedings, so the trial court never had jurisdiction and shou ld have vacated his sentence and convictions as void. We disagree. {¶6} We recognize at the outset that t he trial court reclassified Mr . White’s motion to vacate void judgment as a petiti on for post-conviction relief. “Courts may recast irregular motions into whatever category necessary to identify and establ ish the criteria by which the motion should be judged.” State v. Schlee , 117 Ohio St.3d 153, 2008-Ohio-545, ¶ 12. “‘A vaguely titled motion, including a motion to correct or vacate a judgment or sentence,’ may be treated as a petition for post[-]conviction relief under R.C. 2 953.21(A)(1) when the motion was filed after a direct appeal, alleged a denial of constitutional rights, sought to render the judgment void or voidable, and requested t hat the judgment and sentence be vacated.” State v. Higgins , 9th Dist. Summit No. 29628, 2020-Ohio-2914, ¶ 5, quoting State v. Davis , 9th Dist. Medina No. 15CA0004-M, 2015-Ohio-5182, ¶ 6. Mr. White’s motion to vacate void judgment meets these criteria, so we conclu de that it was properly reclassified as a petition for post-convi ction relief. {¶7} A post-conviction proceeding is a collateral civil attack on a criminal judgment, in which the petitioner receives no more rights than those granted by the statute. State v. Calhoun ,4

86 Ohio St.3d 279, 281 (1999). Former R.C. 2953.21(A)(1)(a) 2 stated that anyone convicted of a

criminal offense: who claims that there was such a denial or infringement of the person’s rights as to render the judgment void or voidable under the Ohio Constitu tion or the Constitution of the United States * * * may file a petition in the court that imposed sentence, stating the grounds for relief relied upon, a nd asking the court to vacate or set aside the judgmen t or sentence or to grant oth er appropriate relief. {¶8} We generally review a trial court’s decision denying a petition for post-conviction

relief under an abuse of discretion standard. State v. Nichols , 9th Dist. Summit No. 29228, 2019- Ohio-3084, ¶ 10. “Our standard of review is de novo, however, when the trial court denies a petition solely on the basis of an issue of law.” Id. “Whether a defendant’s post-conviction relief petition satisfied the procedural requirements set forth in R.C. 2953.21 and R.C. 2953.23 is

an issue of law.” State v. Childs , 9th Dist. Summit No. 25448, 2011-Ohio-913, ¶ 9. Here, the trial court found not only that Mr. White’s petition was untime ly and successive under R.C. 2953.21, but also that he failed to argue any of the exceptions in R.C. 2953.23 applied. Our

standard of review in this matter is therefore de novo. {¶9} Mr. White filed a direct appeal from his convictions, and his s entence of death was later overturned by the Supreme Court. Thus, he was requir ed to file his petition no later than 365 days after the date on which the trial transcript was filed in his direct appeal. Former R.C. 2953.21(A)(2). The trial transcript was filed in Mr. Whit e’s direct appeal to the Supreme Court on January 22, 1997. He f iled his petition in this matte r on March 4, 2021, more than 24

2 Although Mr. White was convicted in 1996, he filed his petitio n on March 4, 2021, so the amended versions of the pos t-conviction relief statutes tha t were in effect from April 6, 2017, until April 12, 2021, apply in this case. See, e.g., State v. Morris , 9th Dist. Summit No. 29419, 2019-Ohio-5404, ¶ 6, fn. 1 (citing cases and recognizing that “ the triggering event is the filing of the post[-]conviction petition, whi ch determines the applicable version of the statute.”).5

years past the statutory deadline. Apart from being untimely, Mr. White’s petition was also successive, as the record reveals that he filed two prior petit ions for post-convi ction relief in

1998 and 2002. {¶10} A trial court may not entertain untimely o r successive petition s for postconviction relief unless the pe titioner satisfies certain requi rements. See Former R.C. 2953.23(A)(1). First, he must show either that (1) he was “una voidably prevented” from discovering the facts he relies on, or (2) subsequent to the 36 5-day deadline, “the United States Supreme Court recognized a new fe deral or state right that appl ies retroactively to persons in [his] situation, and the petition asserts a claim based on that right.” Former R.C. 2953.23(A)(1)(a). Second, he must show “by clear and convincin g evidence that, but for constitutional error at trial, no reasonable factfinder would h ave found the petitioner guilty of the

offense of which he was c onvicted * * *.” Former R.C. 2953.23( A)(1)(b). {¶11} Raising a defective indictment argument does not constitute an exception to R.C. 2953.23’s procedural requirements. State v. Morris , 9th Dist. Summit No. 24613, 2009-Ohio3183, ¶ 7. Beyond that, Mr. White made no attempt to satisfy t he requirements of Former R.C. 2953.23(A)(1). “[A] petitioner’s failure to satisfy R.C. 2953. 23(A) deprives a trial court of jurisdiction to adjudicate the merits of an untimely or success ive post[-]conviction petition.” State v. Apanovitch , 155 Ohio St.3d 358, 2018-Ohio-4744, ¶ 36. Consequently, the trial court lacked authority to entertain Mr. White’s petition, so we canno t say that the court erred in denying it. See Nichols at ¶ 13. {¶12} Even assuming arguendo that the tr ial court had authority to en tertain Mr. White’s petition, his claims would nonethel ess be precluded by res judi cata. Pursuant to the doctrine of res judicata:6

[A] final judgment of convicti on bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process t hat was raised or could have been raised by the de fendant at the trial, which res ulted in that judgment of conviction, or on an a ppeal from that judgment. State v. Perry , 10 Ohio St.2d 175 (1967), paragrap h nine of the syllabus. {¶13} Mr. White argued in his petition that the indictment in this ca se was defective because it was not signed by the foreperson or deputy foreperso n. As a result, he argued that his “due process rights and right to fundamentally fair grand jury proceedings were denied by the prosecutor’s failure to present a valid indictment” and “the tr ial court never invoked its jurisdiction [] by the [r]eturn of a valid indictment.” Any al leged error in the indictment would have been apparent in the recor d, however, and Mr. White could have raised that issue prior to trial pursuant to Crim.R. 12(C) and then later on direct appeal

. See State v. Quinn , 9th Dist. Medina No. 20CA0027-M, 2021-Ohio- 1764, ¶ 19. As it stands now, Mr. White’s arguments are barred by the doctrine of res judicata. {¶14} Mr. White’s argument that his sen tence and convictions are void because the court “never invoked its jurisdi ction” does not change that res ult. In fact, his contention that the indictment was unsigned does not actually implicate the court’s jurisdiction. See State v. Daniel , 9th Dist. Summit No. 26670, 2013-Oh io-3510, ¶ 12 (stating that a grand jury foreman’s failure to sign an indictment does not depri ve the trial court of jurisdic tion); accord State ex rel. Justice v.

McMackin , 53 Ohio St.3d 72, 73 (1990). A sentence is only void “when a sentencing court lacks jurisdiction over the subject-ma tter of the case or personal ju risdiction over the accused.” State v. Harper , 160 Ohio St.3d 480, 2020-Ohio-2913, ¶ 42. “[P]ursuant to R.C . 2931.03, ‘a common pleas court has subject-matter jurisdiction over felony cases.’ ” Id. at ¶ 25, quoting Smith v.

Sheldon , 157 Ohio St.3d 1, 2019-Ohio-1677, ¶ 8. Furthermore, a court acquires personal7

jurisdiction over a person “by lawfully issued process, followe d by the arrest and arraignment of the accused and his plea to the charge.” State v. Henderson , 161 Ohio St.3d 285, 2020-Ohio4784, ¶ 36. “A defendant also submits to the court’s jurisdict ion if he does not object to the court’s exercise of jurisdiction over him.” Id. Because the trial court here had both subjectmatter jurisdiction over the case and personal jurisdiction ove r Mr. White, his sentence was not

void. See State v. Dyson , 9th Dist. Wayne No. 21AP0021, 2021-Ohio-4466, ¶ 9. Any sente nce based on an error in the court’s exercise of its jurisdiction w ould be voidable, and “neither the

state nor the defendant can cha llenge [a] voidable sentence thr ough a post[-]conviction motion.”

Henderson at ¶ 43. See also Harper at ¶ 42 (“When the sentencing court has jurisdiction to act, sentencing errors * * * render the sentence voidable, not void, and the sentence may be set aside if successfully challenged on direct appeal.”). Accordingly, M r. White’s arguments are now barred by res judicata, and we can only conclude that the trial court did not err in denying his petition for post-convi ction relief. {¶15} Mr. White’s sole assign ment of error is overruled.

III. {¶16} Mr. White’s sole assignment of e rror is overruled. The judgmen t of the Summit County Court of Common P leas is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal.8

We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Summit, State o f 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 consti tute the journal entry of judgment, and it shall be file stamped by the Clerk of the Cour t 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 pa rties and to make a notation of the mailing in the docket , pursuant to App.R. 30. Costs taxed to Appellant.

THOMAS A. TE ODOSIO FOR THE COURT

CALLAHAN, J. SUTTON, J. CONCUR.

APPEARANCES: CLIFTON WHITE, III, pro se, Appellant. SHERRI BEVAN WALSH, Prosecuti ng Attorney, and JACQUENETTE S. CO RGAN, Assistant Prosecuting Attorney, for Appellee.