[Cite as State v. Morris , 2019-Ohio-5404.]

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

STATE OF OHIO Appellee

v. DAVID C. MORRIS Appellant C.A. No. 29419

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR-1987-04-0423-A

DECISION AND JOURNAL ENTRY Dated: December 31, 2019

CALLAHAN, Presiding Judge. {¶1} Appellant, David Morris, appeals an order that denied his “Moti on for De Novo Resentencing to Corre ct Void Sentence.” T his Court affirms.

I. {¶2} In 1987, Mr. Morris pleaded guilty to five charges of aggravate d robbery and one charge of kidnapping. A three-judge panel found him guilty of two charges of aggravated murder, one charge of attempted aggravated murder, and one char ge of carrying a concealed weapon. On September 3, 1987, the trial court sentenced him to prison “for the remainder of his natural life” for the aggravated murder charges and imposed sig nificant prison terms for each of the other charges as well. (Emphasis omitted.) Mr. Morris app ealed, and this Court affirmed his

convictions. State v. Morris , 9th Dist. Summit No. 13366, 1988 WL 40387 (Apr. 27, 1988). O n November 6, 2008, Mr. Morris petiti oned the trial court for pos tconviction relief. The trial court dismissed the petition, and this C ourt affirmed, concluding tha t the petition was untimely. State2

v. Morris , 9th Dist. Summit No. 24613, 2009-Ohio-3183. On March 22, 201 9, Mr. Morris filed a “Motion for De Novo Resentencing to Correct Void Sentence,” i n which he argued that his sentences for aggravated murder were void because the trial cou rt did not have the authority to sentence him to prison “for the r emainder of his natural life.” (Emphasis omitted.) The trial court denied his motion, and Mr . Morris filed this appeal.

II.

ASSIGNMENT OF ERROR NO. 1 THE TRIAL COURT ERRED AS A MATTER OF LAW IN[] APPLYING RES JUDICATA TO THIS CASE TO DENY RELIEF.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ERRED AS A MATTER OF LAW IN REFUSING TO VACATE THE VOID SENTENCE IN THIS CASE AND CONDUCT A DE NOVO RESENTENCING, DENYING APPELLANT DUE PROCESS OF LAW. {¶3} Mr. Morris’ assignments of error argue that the trial court err ed by denying his post-sentence motion. Because we conclude that the trial court could not consider his motion, his two assignments of error are addressed together. {¶4} 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 under 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 relied upon, and asking the court to vacate or set aside the judgment or sentenc e 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 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 a3

judgment or sentence,” may be treated as a petition for postcon viction relief 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 judg ment void or voidable, and req uested 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). {¶5} In his motion, Mr. Morris went to great lengths to emphasize th at it should not be treated as a petition for postconviction relief. The manner in which a defendant captions or classifies a filing, however, is not controlling: the classific ation of a motion rests on the type of

relief it seeks to obtain. See State v. Fryer , 5th Dist. Perry No. 18-CA-00005, 2018-Ohio-3024, ¶ 20 (observing that the caption of a pro se pleading “[did] not conclusively define the nature of the pleading.”). Compare Lingo v. State , 138 Ohio St.3d 427, 2014-Ohio-1052, ¶ 38, citing State ex rel. Zupancic v. Limbach , 58 Ohio St.3d 130, 132 (1991); State v. Davidson , 17 Ohio St.3d 132, 135 (1985); Dept. of Natural Resources v. Ebbing , 3d Dist. Mercer No. 10-13-24, 2015- Ohio-471, ¶ 83, fn. 17. This Court has characterized similar m otions as petitions for postconviction relief. See , e.g. , State v. Higgins , 9th Dist. Summit No. 29324, 2019-Ohio-3081, ¶ 9-10; State v. Walker , 9th Dist. Summit No. 29151, 2019-Ohio-605, ¶ 7-8. Mr. Morris ’ motion is appropriately cons idered as a petition f or postconviction re lief as well. {¶6} R.C. 2953.21(A)(2) 1 provides that a petition for postconviction relief must be filed within 365 days of the date on which the transcript is fi led in a direct appeal or, if no direct appeal is taken, within 365 days of the expiration of the time for filing an appeal. A defendant

1 Mr. Morris filed his petition on March 22, 2019, so the curren t 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 triggering event is the filing of the postconviction petition, which determines the applicable version of the statute.”).4

who was sentenced prior to the amendment of Ohio’s postconvicti on act, however, could file a petition for postconviction relief within one year of the effec tive date of the amendment, or by September 21, 1996. See 1995 Am.Sub.S.B. No. 4, Section 3. Mr. Morris was sentenced in 1987—eight years before the amendment of Ohio’s postconviction statute. Compare State v.

Swihart , 9th Dist. Medina No. 06CA0091-M, 2007-Ohio-763, ¶ 6. Consequ ently, Mr. Morris was permitted to file a petition for postconviction relief with in one year of the effective date of the act, or by September 21, 1996. See 1995 Am.Sub.S.B. No. 4, Section 3; Swihart at ¶ 6. His “Motion for De Novo Resentencing to Correct Void Sentence” was filed almost twenty-three years after that date and was “clearly untimely.” See Swihart at ¶ 7. In addition, “R.C. 2953.23(A) allows a prisoner to f ile only one postconviction pe tition in most situations.” State v. Apanovitch , 155 Ohio St.3d 358, 2018-Ohio-4744, ¶ 21. Mr. Morris’ curren t petition also represents at least the second th at he has filed. Mr. Morris’ petition, therefore, is both untimely

and successive. See id

. {¶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.” Apanovitch at ¶ 22. A trial court may only entertain an un timely or successive petition for postconviction 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 peti tion, the United States Supreme Court recognized a new federal or state right th at applies retroactively to persons in th e petitioner’s situation, and the petition asserts a claim based 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 c onvincing evidence “that, but fo r constitutional error at trial, no

reasonable factfinder would ha ve found the petitioner guilty of the offense of which the5

petitioner was convicted.” R.C . 2953.23(A)(1)(b). When the re quirements of R.C. 2953.23(A)(1) have not been met, a trial court cannot consider a petition. See Apanovitch at ¶

36. {¶8} Mr. Morris’ motion did not explain why he was unavoidably preve nted 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.

Morris has not satisfied that re quirement, we conclude that the 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. Morris’ suggestion that his sentences for aggravated murder are void does not change this result. This Court has recognized that the Supreme Court applies its void-sentence analysis only in limited circumstances and, without clear direc tion from the Supreme Court, this

Court has declined to extend its reach. State v. Wilson , 9th Dist. Summit No. 29375, 2019-Ohio4337, ¶ 8. The trial court had ju risdiction over Mr. Morris’ c riminal case, and when a sentencing Court has jurisdiction and statut ory authority to act, errors i n sentencing are voidable. State ex rel. Rodriguez v. Barker , Slip Opinion No. 2019-Ohio-4155, ¶ 9. See also State v. Brown , 7th Dist. Mahoning No. 14 MA 37, 2014-Ohio-5832, ¶ 37. {¶10} Mr. Morris’ first and second assign ments of error are overruled

. III. {¶11} Mr. Morris’ assignments of error are overruled. The judgment o f the Summit County Court of Comm on Pleas is affirmed. Judgment affirmed.6

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 pa rties and to make a notation of the mailing in the docket , pursuant to App.R. 30. Costs taxed to Appellant.

LYNNE S. CALL AHAN FOR THE COURT

CARR, J. SCHAFER, J. CONCUR.

APPEARANCES: DAVID C. MORRIS, pro se, Appellant. SHERRI BEVAN WALSH, Prosecuti ng Attorney, and JACQUENETTE S. CO RGAN, Assistant Prosecuting Attorney, for Appellee.