[Cite as State v. Higgins , 2020-Ohio-2914.]

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

STATE OF OHIO Appellee

v. TOMMY W. HIGGINS, JR. Appellant C.A. No. 29628

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 13 04 0884

DECISION AND JOURNAL ENTRY Dated: May 13, 2020

CALLAHAN, Presiding Judge. {¶1} Appellant, Tommy Higgins, appeals an order of the Summit County Court of

Common Pleas that denied his “Mo tion to Correct Illegal Sentenc e.” This Court affirms.

I. {¶2} Mr. Higgins pleaded guilty to two counts of intimidation of a c rime victim or witness in 2014. The trial court sentenced him to prison but s uspended the prison sentences on the condition that Mr. Higgins succe ssfully complete one year of co mmunity control. Mr. Higgins did not file a direct appeal. In 2015, the trial court found that Mr. Higgins had violated the terms of community control and imposed the previously-suspended prison t erms, to be served consecutively to the sentence imposed in the case arising out o f the community control violation. 1 Beginning in 2015, Mr. Higgins filed numerous motions attacking his sentence, variously styled

1 Mr. Higgins did attempt to appeal the order that imposed the p rison terms. This Court dismissed his first attempted appeal as untimely. This Court d enied his motion for a delayed appeal in his second attempt.2

as motions to vacate a judgment or motions to correct an illega l sentence. Mr. Higgins withdrew some of these motions while continuing to file others. On Febr uary 12, 2019, the trial court denied all of his pending motions, concluding that they were untimely petitions for postconviction relief or, in the alternative, that Mr. Higgins’ claims were res judic ata. Mr. Higgins appealed, and this Court affirmed the trial court’s judgment. State v. Higgins , 9th Dist. Summit No. 29324, 2019-

Ohio-3081. {¶3} On August 12, 2019, Mr. Higgins filed a “Motion to Correct Ille gal Sentence,” which he supplemented on August 21, 2019. On December 20, 2019 , the trial court denied his motion, construing it as an un timely petition for postconvictio n relief. In the alternative, the trial court noted that any error in the original imposition of commun ity control in Mr. Higgins’ sentence was voidable and, therefore, res judicata. Mr. Higgins filed t his appeal

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED BY IMPOSING ONE SENTENCE OF COMMUNITY CONTROL FOR MULTIPLE CONVICTIONS; THE SENTENCE IS CONTRARY TO LAW AND VOID[.] {¶4} Mr. Higgins’ assignment of error reiterates the arguments that he made in his motion to the trial court, and the essence of his assignment of error is that the trial court erred by denying his “Motion to Correct I llegal Sentence.” This Court d isagrees. {¶5} This Court must first consider the nature of the motion at issu e in this appeal. R.C. 2953.21(A)(1)(a) provides: Any person who has been convicted of a criminal offense or adju dicated a delinquent child and who claims t hat there was such a denial or infringement of the person’s rights as to render the judgment void or voidable unde r the Ohio Constitution or the Constitution of the United States * * * may file a petition in the court that imposed sentence, stating the grounds for relief rel ied upon, and asking3

the court to vacate or set aside the judgment or sentence or to grant other appropriate relief. This Court may construe an irregular motion “into whatever cate gory necessary to identify and establish the criteria by which the motion s hould be judged.” State v. Schlee , 117 Ohio St.3d 153, 2008-Ohio-545, ¶ 12. “A vaguely titled motion, including a mot ion to correct or vacate a judgment or sentence,” may be treated as a petition for postconviction r elief under R.C. 2953.21(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, a nd requested that the judgment and sentence be vacated. State v.

Davis , 9th Dist. Medina No. 15CA0004-M, 2015-Ohio-5182, ¶ 6, citing State v. Reynolds , 79 Ohio St.3d 158, 160 (1997); R.C. 2953.21(A)(1 )(a). This Court has c haracterized similar motions as petitions for postc onviction relief. See , e.g. , Higgins , 2019-Ohio-3081, at ¶ 9-10; State v. Walker , 9th Dist. Summit No. 29151, 2019-Ohio-605, ¶ 7. As the trial c ourt concluded, Mr. Higgins’ motion is appropriately consid ered to be a pe tition for postcon viction relief. {¶6} R.C. 2953.21(A)(2) 2 provides that a petition for post conviction relief must be fil ed within 365 days of the date on wh ich the transcript is filed in a direct appeal or, if no direct appeal is taken, within 365 days of the expiration of the time for fil ing an appeal. Mr. Higgins’ sentencing entry was dated February 21, 2014. He did not file a direct ap peal, so under R.C. 2953.21(A)(2), he had until March 24, 2015, to petition for postconviction rel ief. 3 Mr. Higgins filed his petition on August 12, 2019, more than four years after that deadline pa ssed. In addition, “R.C. 2953.23(A)

2 Mr. Higgins filed his petition on August 12, 2019, so the curr ent versions of the postconviction statutes apply in this case. See State v. Stephens , 9th Dist. Summit No. 27957, 2016-Ohio-4942, ¶ 6. See also State v. McManaway , 4th Dist. Hocking No. 16CA8, 2016-Ohio7470, ¶ 11 (explaining that “the tri ggering event is the filing of the postconvic tion petition, which determines the applicable ve rsion of the statute.”). 3 Because March 23, 2014, was a Sunday, Mr. Higgins’ deadline fo r filing a direct appeal was Monday, March 24, 2014.4

allows a prisoner to file only one postconviction petition in m ost situations.” State v. Apanovitch , 155 Ohio St.3d 358, 2018-Ohio-4744, ¶ 21. Mr. Higgins’ current petition also represents at least

the second that he has filed. See Higgins at ¶ 10. Mr. Higgins’ petition, therefore, is both untimely

and successive. See Apanovitch at ¶ 21. {¶7} “R.C. 2953.23(A) permits a prisoner to file an untimely, succes sive petition for postconviction relief only under s pecific, limited circumstance s.” Id. at ¶ 22. A trial court may only entertain an untimely or successive petition for postconvi ction relief when: (a) Either the petitioner shows that the petitioner was unavoid ably prevented from discovery of the facts upon which the petitioner must rely to p resent the claim for relief, or, subsequent to the period prescribed in division (A) (2) of section 2953.21 of the Revised Code or to the filing of an earlier petition, th e United States Supreme Court recognized a new federal or state right that applies retr oactively to persons in the petitioner’s situation, and t he petition asserts a claim ba sed on that right. R.C. 2953.23(A)(1)(a). A petitione r, other than one who challe nges a sentence of death, must also demonstrate by clear and convinc ing evidence “that, but for con stitutional error at trial, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted.” R.C. 2953.23(A)(1)( b). When the requirements of R.C. 2953.23(A)(1) have not been met, a trial court cannot consider an untimely or successi ve petition. See Apanovitch at ¶ 36. {¶8} Mr. Higgins’ petition did not explain why he was unavoidably pr evented from discovering the facts upon which it was based, and it did not i dentify a retroactive right that has been recognized by the United States Supreme Court. See R.C. 2953.23(A)(1)(a). Because Mr. Higgins has not satisfied that requirement, we conclude that th e trial court could not consider his untimely and successive petition a nd need not address whether h e has satisfied the requirements of R.C. 2953.23(A)(1)(b). See Apanovitch at ¶ 26. {¶9} Mr. Higgins’ suggestion that his sentences are void does not ch ange this result. This Court has recognized that the S upreme Court applies its void-se ntence analysis only in limited5

circumstances and, without clear direction from the Supreme Cou rt, this Court has declined to

extend its reach. State v. Wilson , 9th Dist. Summit No. 29375, 2019-Ohio-4337, ¶ 8. The trial court had jurisdiction over Mr. Higgins’ criminal case, and whe n a sentencing court has jurisdiction and statutory author ity to act, errors in sentenci ng are voidable. State ex rel. Rodriguez

v. Barker , 158 Ohio St.3d 39, 2019-Ohio-4155, ¶ 9. {¶10} Mr. Higgins’ assignment of error is overruled.

III. {¶11} Mr. Higgins’ assignment of error is overruled. The judgment of the Summit County

Court of Common Pl eas is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting 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 consti tute the journal entry of judgment, and it shall be file s tamped 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 parties and to m ake a notation of the mailing in the docket, pursuant to App.R. 30.6

Costs taxed to Appellant.

LYNNE S. CALL AHAN FOR THE COURT

HENSAL, J. TEODOSIO, J. CONCUR.

APPEARANCES: TOMMY W. HIGGINS, JR., pro se, Appellant. SHERRI BEVAN WALSH, Prosecuti ng Attorney, and JACQUENETTE S. CO RGAN, Assistant Prosecuting Attorney, for Appellee.