[Cite as State v. Smith, 2022-Ohio-12.]

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

STATE OF OHIO, 

Plaintiff-Appellee, 

vs. 

MAURICE SMITH,

Defendant-Appellant. 

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APPEAL NO. C-210267

TRIAL NO. B-1506673 

O P I N I O N.

 

Criminal Appeal From: Hamilton County Court of Common Pleas 

 

Judgment Appealed From Is: Affirmed as Modified 

Date of Judgment Entry on Appeal: January 5, 2022 

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean Donovan, 

Assistant Prosecuting Attorney, for Plaintiff-Appellee, 

Maurice Smith, pro se. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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BOCK, Judge. 

{¶1} Defendant-appellant Maurice Smith appeals the common pleas 

court’s judgment denying his postconviction “Motion for Summary Judgment to 

Vacate Judgment and Sentence.” We affirm the trial court’s judgment as modified. 

I. Procedural Posture 

{¶2} A jury convicted Smith of burglary, possession of cocaine, tampering 

with evidence, trafficking in cocaine, and possession of marijuana. This court twice 

remanded on direct appeal, ordering the trial court to merge allied offenses of similar 

import and to make findings for consecutive sentences. State v. Smith, 2017-Ohio8558, 99 N.E.3d 1230, ¶ 65 (1st Dist.); State v. Smith, 1st Dist. Hamilton No. C180165 (April 10, 2019). Following resentencing, Smith stood convicted of burglary, 

tampering with evidence, trafficking in cocaine, and possession of marijuana.

{¶3} While his first direct appeal was pending, Smith unsuccessfully 

petitioned the common pleas court for postconviction relief. State v. Smith, 1st Dist. 

Hamilton Nos. C-180439 and C-180604, 2019-Ohio-5350, ¶ 3. Smith argued that he 

was denied his Sixth Amendment right to the effective assistance of trial counsel. Id. 

On appeal, this court affirmed the denial of the petition, holding that Smith’s claims 

were barred under the doctrine of res judicata. Id. at ¶ 12. 

{¶4} In January 2021, Smith filed another motion seeking postconviction 

relief from his conviction. He argued that, because the police officer who arrested 

him had failed to allege facts in his complaint that constituted cocaine trafficking or 

marijuana possession, the trial court lacked subject-matter jurisdiction to convict 

him of those charges. The common pleas court reviewed the motion as a petition for 
OHIO FIRST DISTRICT COURT OF APPEALS 

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postconviction relief and, in a two-sentence judgment entry, denied the motion. 

Smith appeals. 

II. Law and Analysis 

{¶5} Smith raises on appeal three assignments of error. In his first 

assignment of error, he argues that the common pleas court abused its discretion in 

denying his motion to vacate his convictions because the court lacked “authority and 

subject-matter jurisdiction” to rule on the motion. In his second and third 

assignments of error, he challenges the denial of the motion without an evidentiary 

hearing or findings of fact and conclusions of law. We address the assignments of 

error together and hold that they are not well taken. 

{¶6} In his motion, Smith did not designate a statute or rule under which 

the common pleas court may have afforded the relief sought. Thus, the court “recast” 

the motion “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-Ohio545, 882 N.E.2d 431, ¶ 12 and syllabus. 

{¶7} Ohio’s postconviction statutes govern the right of an individual 

convicted of a crime to challenge a criminal conviction or sentence. See R.C. 2953.21 

through R.C. 2953.23. Convicted people may “file a petition in the court that 

imposed sentence,” asserting a violation of their rights that renders their convictions 

void or voidable under the Ohio or United States Constitutions. R.C. 

2953.21(A)(1)(a)(i). Smith’s motion sought relief from his convictions based on an 

alleged constitutional violation during the proceedings resulting in those convictions. 

Therefore, the common pleas court properly reviewed the motion under the 

standards provided by the postconviction statutes. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶8} A postconviction petition must be filed within 365 days after “the trial 

transcript is filed in the court of appeals in the direct appeal.” R.C. 2953.21(A)(2)(a). 

A court lacks jurisdiction to entertain an untimely “or a second petition or successive 

petitions for similar relief” unless it falls under one of two statutory exceptions. R.C. 

2953.23(A). Smith’s petition was successive to his 2018 petition for postconviction 

relief, requiring him to satisfy one of the two statutory exceptions. 

{¶9} Under the first exception, Smith must show that his postconviction 

claim relies on either facts that he “was unavoidably prevented from discover[ing]” 

or “a new federal or state right [recognized by the United States Supreme Court] that 

applies retroactively” to him. R.C. 2953.23(A)(1)(a). If Smith clears that bar, he must 

show “by clear and convincing evidence that, but for constitutional error at trial, no 

reasonable factfinder would have found [him] guilty.” R.C. 2953.23(A)(1)(a). The 

second exception applies when the postconviction claim relies on DNA testing that 

establishes, by clear and convincing evidence, the convicted person’s actual 

innocence. R.C. 2953.23(A)(2). 

{¶10} Smith’s postconviction claim did not rely on DNA testing or a new 

right recognized by the United States Supreme Court. Therefore, the common pleas 

court could have entertained his late and successive claim only if he showed that his 

claim relied on facts that he was “unavoidably prevented from discover[ing].” R.C. 

2953.23(A)(1)(a). But Smith’s postconviction claim relied on the complaints and 

affidavit filed by the arresting officer in 2015. And the record does not otherwise 

show that Smith was unavoidably prevented from discovering those facts. Therefore, 

Smith failed to satisfy the R.C. 2953.23(A) jurisdictional requirements for filing a 

successive postconviction petition. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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Conclusion

{¶11} Because the common pleas court had no jurisdiction to entertain 

Smith’s postconviction claim, his petition was subject to dismissal without an 

evidentiary hearing or findings of fact and conclusions of law. See R.C. 2953.21(H) 

and 2953.23(A); State ex rel. Kimbrough v. Greene, 98 Ohio St.3d 116, 2002-Ohio7042, 781 N.E.2d 155, ¶ 6. Accordingly, we overrule the assignments of error. 

Pursuant to App.R. 12(A)(1)(a), we modify the judgment appealed to reflect a 

dismissal of the petition. And we affirm the judgment as modified. 

Judgment affirmed as modified. 

ZAYAS, P.J., andWINKLER, J., concur. 

Please note: 

The court has recorded its entry on the date of the release of this opinion