[Cite as State v. Stewart, 2020-Ohio-4709.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 Plaintiff-Appellee, : 

 No. 19AP-458 

v. : (C.P.C. No. 86CR-3463)

Darin T. Stewart, : (REGULAR CALENDAR) 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on September 30, 2020 

 

On brief: Ron O'Brien, Prosecuting Attorney, and Seth L. 

Gilbert, for appellee.

On brief: Darin T. Stewart, pro se.

 

APPEAL from the Franklin County Court of Common Pleas 

DORRIAN, J. 

{¶ 1} Defendant-appellant, Darin T. Stewart, appeals from a judgment of the 

Franklin County Court of Common Pleas which denied his "Motion to Vacate a Statutorily 

Void Judgment for Lack of Subject-Matter Jurisdiction." For the following reasons, we 

conclude the trial court should have dismissed appellant's petition for lack of jurisdiction. 

I. Facts and Procedural History 

{¶ 2} In October 1986, appellant was arrested for an incident in connection with 

the shooting of Kevin Doddrill, Chris Buchanan, and David Montgomery. The facts of that 

incident, as taken from his direct appeal decision, are as follows: 

Defendant and his brother, Edward Stewart, were evicted 

from Minsky's Music Hall, a bar, by the bar's bouncers. While 

outside, both men, as well as the bouncers and other persons 

who gathered, exchanged obscenities and threats. When 

fighting erupted between some onlookers and the defendant 
No. 19AP-458 2 

and his brother, the bouncers attempted to stop the fight. 

Subsequently, David Montgomery, a Columbus police officer, 

who was working special duty for the shopping center where 

the bar was located, arrived on the scene. 

Officer Montgomery intervened and told both Stewarts to go 

home. Nevertheless, they continued the altercation. When 

Edward Stewart spit on Montgomery, he was arrested. Upon 

seeing Montgomery grab his brother's arm, defendant tackled 

the officer and threw him to the ground. While defendant and 

Montgomery struggled, defendant took the officer's gun. 

When several people, including Kevin Doddrill and Chris 

Buchanan came to the officer's aid, defendant fired at them. 

Although defendant also tried to shoot Montgomery, he was 

unsuccessful. As a result of this incident, Chris Buchanan was 

wounded in the leg and Kevin Doddrill was killed. 

State v. Stewart, 10th Dist. No. 88AP-132 (Dec. 6, 1988). 

{¶ 3} Out of that incident, appellant was indicted on one count of aggravated 

murder, in the course of an aggravated robbery, pursuant to R.C. 2903.01,1 with an 

accompanying death penalty specification of committing the murder in the course of a 

robbery, and a firearm specification. Count 2 charged appellant with aggravated robbery 

in violation of R.C. 2911.01. Counts 3 and 4 charged appellant with attempted aggravated 

murder in violation of R.C. 2923.02 and 2903.01 with firearm specifications.2 Appellant 

was convicted by a three-judge panel of a lesser-included offense of Count 1: to wit: murder 

in violation of R.C. 2903.01, with a firearm specification and a lesser-included offense of 

Count 4: to wit: attempted murder, as it relates to R.C. 2903.01, with a firearm 

specification. Appellant filed a motion to modify the verdict which the trial court denied. 

Appellant filed an appeal arguing the motion should have been granted and he should have 

been convicted of the lesser-included offenses of aggravated assault and involuntary 

 

1 The indictment does not specifically state which division of R.C. 2903.01 appellant was indicted on. However, 

the text of the indictment alleged that appellant acted purposely and while committing or attempting to 

commit an aggravated robbery. This text indicates that appellant was indicted on Division (B) of R.C. 2903.01. 

 

2 The indictment does not specifically state which division of R.C. 2903.01 in Counts 3 and 4 apply. However, 

as with Count 1, the indictment alleged appellant acted purposely while committing, attempting to commit or 

fleeing from the commission of aggravated robbery. This text indicates that appellant was indicted for attempt 

on Division (B) of R.C. 2903.01. 
No. 19AP-458 3 

manslaughter. This court affirmed the trial court's judgment. Stewart, 10th Dist. No. 

88AP-132. 

{¶ 4} Subsequently, appellant filed a petition for postconviction relief pursuant to 

R.C. 2953.21 and raised the issue of ineffective assistance of counsel, alleging in the petition 

that his counsel erred in waiving a trial by jury and proceeding with a three-judge panel. 

The trial court denied the petition. This court determined that the issues appellant raised 

could have been raised by the direct appeal from his conviction and, thus, the issues were 

res judicata and the petition did not set forth evidentiary documents containing sufficient 

operative facts to demonstrate the lack of competent counsel on any of the issues asserted 

on appeal. This court overruled appellant's assignments of error and affirmed the 

judgment. See State v. Stewart, 10th Dist. No. 91AP-1021 (Aug. 6, 1992). 

{¶ 5} In 2015, appellant filed an action for declaratory relief, seeking a declaration 

that his convictions and sentences were void because he was convicted of lesser-included 

offenses of the charges that he had been indicted for by the Franklin County Grand Jury. 

The trial court granted summary judgment to Judge William T. Gillie and Michael Miller 

(the judge who sentenced appellant and the Franklin County prosecutor at the time). 

Appellant filed an untimely notice of appeal and this court dismissed the appeal for lack of 

jurisdiction. See Stewart v. Gillie, 10th Dist. No. 16AP-859, 2017-Ohio-4088. 

{¶ 6} On November 20, 2018, appellant filed a "Motion to Vacate a Void Judgment 

for Lack of Subject-Matter Jurisdiction" arguing the trial court made a constructive 

amendment to the charges in the indictment. Plaintiff-appellee, State of Ohio, filed a 

memorandum contra on December 5, 2018. Appellant moved to strike the state's 

memorandum contra, and the trial court denied the motion to strike. 

{¶ 7} In his motion to vacate, appellant argued the trial court lost subject-matter 

jurisdiction when it made a constructive amendment to the indictment at trial by finding 

him guilty of an offense that was not a lesser-included offense of the offense in the 

indictment.3 Furthermore, although he explained in his brief that he had been indicted on 

aggravated murder pursuant to R.C. 2903.01(B) with a predicate offense of aggravated 

 

3 The record before us contains only the motions, memoranda contra and entry relevant to the motion to 

vacate judgment for lack of subject-matter jurisdiction. We have taken judicial notice of the indictment and 

the judgment entry. 
No. 19AP-458 4 

robbery, he goes on to argue he was indicted on the offense of felony murder4 and the 

offense he was convicted of, murder, is not a lesser-included offense of felony murder. On 

these grounds, he argued the trial court did not have subject-matter jurisdiction and his 

conviction is void. On April 25, 2019, the trial court denied his motion as not well-taken. 

II. Assignment of Error 

{¶ 8} Appellant filed an App.R. 5(A) motion for leave to file a delayed appeal of the 

trial court's April 25, 2019 entry denying his motion to vacate. This court granted the 

motion for leave to file a delayed appeal on grounds that appellant did not receive a copy of 

the April 25, 2019 entry until June 25, 2019, and the state did not file a memorandum 

contra the motion for leave. Appellant assigns the following sole assignment of error for 

our review: 

The Court abused its discretion and created plain error, when 

it constructively amended5 the indictment handed down by 

the Franklin County Grand Jury. Jurisdiction is essential to a 

valid judgment, and any conviction rendered by a Court 

without jurisdiction is void. 

 

4 Appellant's assertion, in his motion and in his brief, that he was indicted on "felony murder" is confusing 

because he also explains he was indicted on R.C. 2903.01(B) aggravated murder. Felony murder is the name 

of the offense proscribed in R.C. 2903.02(B). It differs from aggravated murder proscribed by R.C. 2903.01(B) 

in that the felony murder statute does not contain a mens rea component; whereas aggravated murder 

contains the element of purpose. A defendant may be found guilty of felony murder even if there was no intent 

to cause the victim's death. Rather, a person commits felony murder pursuant to R.C. 2903.02(B) by 

proximately causing another's death while possessing the mens rea element set forth in the underlying felony 

offense. See State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, ¶ 40; 43. The indictment reveals, contrary to 

appellant's claim that he was indicted on felony murder, that indeed he was indicted on aggravated murder 

pursuant to R.C. 2903.01(B). We decline to address appellant's confusing argument. We do note, however, 

that subject-matter jurisdiction "connotes the power to hear and decide a case upon its merits." Morrison v. 

Steiner, 32 Ohio St.2d 86 (1972), paragraph one of the syllabus. Further, in the recent Supreme Court of Ohio 

case State v. Harper, __ Ohio St.3d __, 2020-Ohio-2913, ¶ 42, the court clarified void and voidable. When a 

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." As in our recent case, State v. Cockroft, 

10th Dist. No. 19AP-738, 2020-Ohio-4436, the trial court had subject-matter jurisdiction and personal 

jurisdiction over the defendant, thus any alleged sentencing error would have made the judgment voidable, 

not void, and such alleged error could have been raised in a direct appeal. 

5 In his brief, appellant also argues the trial court lacked subject-matter jurisdiction pursuant to Crim.R. 32(B). 

He states that "[m]urder or attempted murder are not offenses found by the grand jury of Franklin County." 

(Appellant's Brief at 6.) However, appellant did not assign as error the trial court's denial of the motion on this 

ground. The assignment of error is limited to assigned error on the grounds of constructive amendment. 

Therefore, we decline to address appellant's Crim.R. 32(B) argument. 
No. 19AP-458 5 

III. Analysis 

{¶ 9} The Ohio Rules of Criminal Procedure do not expressly provide for a motion 

to vacate a conviction; however, "[c]ourts may recast irregular motions into whatever 

category necessary to identify and establish the criteria by which the motion should be 

judged." State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, ¶ 12. Appellant's motion 

meets the definition of a petition for postconviction relief pursuant to R.C. 2953.21(A)(1), 

because it "(1) was filed subsequent to [appellant's] direct appeal, (2) claimed a denial of 

constitutional rights, (3) sought to render the judgment void, and (4) asked for vacation of 

the judgment and sentence." State v. Norman, 10th Dist. No. 19AP-106, 2019-Ohio-4020, 

¶ 11, citing State v. Reynolds, 79 Ohio St.3d 158, 160 (1997). Accordingly, we review 

appellant's motion as a petition for postconviction relief and determine the trial court 

should have dismissed the petition for lack of jurisdiction rather than assuming jurisdiction 

and denying it. 

{¶ 10} The distinction between the trial court assuming jurisdiction and denying 

appellant's petition for lack of jurisdiction is important because subject-matter jurisdiction 

"is a court's power to hear and decide a case on the merits," but "a jurisdictional defect 

cannot be waived." State ex rel. Tubbs Jones v. Suster, 84 Ohio St.3d 70, 75 (1998). 

Because " ' "the question [of] whether a court of common pleas possesses subject-matter 

jurisdiction to entertain an untimely [or successive] petition for postconviction relief is a 

question of law," ' an appellate court applies a de novo standard of review to the trial court's 

determination." State v. Conway, 10th Dist. No. 17AP-90, 2019-Ohio-382, ¶ 8, quoting 

State v. Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, ¶ 24, quoting State v. Kane, 10th 

Dist. No. 16AP-781, 2017-Ohio-7838, ¶ 9. 

{¶ 11} The postconviction relief process is a collateral civil attack on a criminal 

judgment, not an appeal of the judgment. State v. Steffen, 70 Ohio St.3d 399, 410 (1994). 

Appellant does not have a constitutional right of postconviction review and postconviction 

relief does not afford appellant any rights beyond those granted by statute. State v. 

Calhoun, 86 Ohio St.3d 279, 281 (1999). A postconviction petition does not provide 

appellant a second opportunity to litigate his conviction. State v. Hessler, 10th Dist. No. 

01AP-1011, 2002-Ohio-3321. Appellant's motion, construed as a petition for postconviction 

relief, "cannot circumvent the requirements of R.C. 2953.21 and attempt to obtain relief 
No. 19AP-458 6 

through the 'back door' by styling his action as other than that which it is: a petition for 

postconviction relief." Canter v. Voinovich, 9th Dist. No. 97CA006665 (Sept. 24, 1997). 

{¶ 12} We note that this postconviction petition was filed beyond the time provided 

in R.C. 2953.21, and it was appellant's second request for postconviction review; therefore, 

it was also subject to the requirements of R.C. 2953.23. That statute provides a court "may 

not entertain" an untimely or successive postconviction relief petition unless the 

requirements of R.C. 2953.23(A)(1) or (2) are met. The Supreme Court of Ohio has held 

that unless the requirements of R.C. 2953.23(A)(1) or (2) are satisfied, a court lacks 

jurisdiction over a successive postconviction relief petition. Apanovitch at ¶ 38. 

{¶ 13} Appellant has not demonstrated that he met the requirements of R.C. 

2953.23(A)(1) or (2). Because appellant's petition is an untimely petition for postconviction 

relief, and because appellant failed to produce evidence to support a finding that any of the 

R.C. 2953.23(A)(1) exceptions applied, the trial court lacked jurisdiction to entertain 

appellant's petition. Conway; Apanovitch. This court has previously advised trial courts 

should dismiss a petition for postconviction relief when jurisdiction is lacking, rather than 

denying the petition on some other grounds. See, e.g., State v. Banks, 10th Dist. No. 12AP96, 2012-Ohio-3770, ¶ 11 ("the trial court did not err in denying appellant's petition, though 

technically the petition should have been dismissed for lack of jurisdiction); State v. 

Mangus, 10th Dist. No. 06AP-1105, 2009-Ohio-6563, ¶ 13 (affirming denial of 

postconviction petition as untimely filed even though trial court should have dismissed the 

petition for lack of jurisdiction); State v. Russell, 10th Dist. No. 05AP-391, 2006-Ohio-383, 

¶ 10 (although trial court did not err in denying the petition on the merits, it should have 

been dismissed for lack of jurisdiction); State v. Elkins, 10th Dist. No. 10AP-6, 2010-Ohio4605, ¶ 17 (the untimely postconviction petition should have been dismissed for lack of 

jurisdiction). 

{¶ 14} Accordingly, we conclude that even though the trial court should have 

dismissed appellant's petition for lack of jurisdiction rather that denying the petition, we 

agree with the trial court's disposition of appellant's petition. Appellant's petition is 

untimely and a successive postconviction petition. Therefore, appellant's assignment of 

error is overruled. 
No. 19AP-458 7 

IV. Conclusion 

{¶ 15} For the foregoing reasons, we overrule appellant's sole assignment of error. 

The judgment of the Franklin County Court of Common Pleas is modified to reflect the 

dismissal of Stewart's postconviction petition. 

Judgment modified; 

postconviction petition dismissed. 

KLATT and BRUNNER, JJ., concur.