[Cite as State v. Payne , 2020-Ohio-4804.]

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

STATE OF OHIO Appellee

v. MICHAEL A. PAYNE Appellant C.A. No. 29714

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 10 09 2482

DECISION AND JOURNAL ENTRY Dated: October 7, 2020

CALLAHAN, Presiding Judge. {¶1} Appellant, Michael A. Payne, appeals an order of the Summit Cou nty Court of Common Pleas that denied his “Motion to Vacate Judg[]ment for L ack of Jurisdiction[.]” This

Court affirms.

I. {¶2} In 2010, a jury found Mr. Payne guilty of felonious assault, do mestic violence, and violating a protection order. On January 24, 2011, the trial c ourt sentenced him to prison terms totaling thirteen years. Mr. Payne appealed, arguing that the trial court erred by denying his motion

to dismiss the indictment because the words “a true bill” were not handwritten by the jury foreman. State v. Payne , 9th Dist. Summit No. 25825, 2012-Ohio-1334, ¶ 5-7. This Cour t affirmed his

conviction. Id . at ¶ 10. {¶3} On August 21, 2017, Mr. Payne filed a document titled “Post Con viction Relief— Structu[r]al Error—Void Sentence in Violation of Crim.R. 5(B),” arguing that he was deprived of2

his right to a preliminary hearing by virtue of his direct indi ctment. The trial court denied that motion, concluding that it was an untimely petition for postcon viction relief or, in the alternative, that it was barred by res judicata. On February 18, 2020, Mr. Payne filed the “Motion to Vacate Judg[]ment for Lack of Jurisdiction” that is at issue in this a ppeal. In that motion, he appeared to reargue the error asserted in his direct appeal, framed as an i ssue of subject matter or personal jurisdiction. On March 5, 2020, th e trial court denied the mot ion, concluding that it was an untimely petition for postconvicti on relief or, in the alternat ive, that Mr. Payne’s arguments were barred by res judicata. {¶4} Mr. Payne filed this appeal.

II.

ASSIGNMENT OF ERROR NO. 1 [THE] TRIAL COURT ERR[ED] BY DENYING THE MOTION TO VACATE JUDG[]MENT FOR LACK OF JURISDICTION OVER THE SUBJECT MATTER OF OFFENSES AND FOR LACK OF JURISDICTION OVER THE PERSON FILED FEBRUARY 18, 2020.

ASSIGNMENT OF ERROR NO. 2 [THE] TRIAL COURT VIOLATED APPELLANT[’S]/ DEFENDANT[’S] OHIO CONSTITUTIONAL RIGHTS & UNITED STATES CONSTITUTIONAL AMENDMENTS BY DENYING THE MOTION TO VACATE JUDG[]MENT FOR LACK OF JURISDICTION OVER THE SUBJECT MATTER OF OFFENSE AND FOR LACK OF JURISDICTION OVER THE PERSON FILED FEBRUARY 18, 2020. {¶5} Mr. Payne’s two assignments of error argue that the trial court erred by denying his “Motion to Vacate Judg[]ment for Lack of Jurisdiction.” This C ourt does not agree. {¶6} 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 the3

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 asking 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. , State v. Walker , 9th Dist. Summit No. 29151, 2019- Ohio-605, ¶ 7. Mr. Payne’s motion is appropriately considered to be a petition for postconviction

relief. {¶7} R.C. 2953.21(A)(2) 1 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 th e expiration of the time for fil ing an appeal. The transcript in Mr. Payne’s direct appeal was filed on April 20, 2011. Consequentl y, he had until April 19, 2012, to petition for postconviction relief. 2 Mr. Payne filed his petition on February 18, 2020, almost eig ht

1 Mr. Payne filed his petition on February 18, 2020, 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.”). 2 The year 2012 was a leap year.4

years after that deadline passed. In addition, “R.C. 2953.23(A ) allows a prisoner to file only one postconviction petition in m ost situations.” State v. Apanovitch , 155 Ohio St.3d 358, 2018-Ohio4744, ¶ 21. Mr. Payne’s current petition also represents at lea st the third that he has filed. Mr. Payne’s petition, therefore, i s both untimely and successive. See Id. at ¶ 21. {¶8} “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. {¶9} Mr. Payne’s petition did not explain why he was unavoidably pre vented 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. Payne 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. {¶10} Mr. Payne’s suggestion that his sentence is void does not chang e this result. A sentence is only void “when a se ntencing court lacks jurisdicti on over the subject-matter of the5

case or personal jurisdiction over the accused.” State v. Harper , Slip Opinion No. 2020-Ohio2913, ¶ 42. Mr. Payne’s argument is not properly characterized as one related to subject matter or personal jurisdiction. See , e.g. , Payne v. Jeffreys , 109 Ohio St.3d 239, 2006-Ohio-2288, ¶ 2-6;

State ex rel. Blanton v. Winters , 6th Dist. Ottawa No. OT-12-001, 2012-Ohio-973, ¶ 8; Pishok v. Kelly , 11th Dist. Trumbull No. 2008-T-0093, 2009-Ohio-287, ¶ 15. Re gardless, however, this Court has previously considered and rejected the merits of Mr. Payne’s arguments in his direct appeal. See Payne , 2012-Ohio-1334, at ¶ 5-9. Compare Payne , 2006-Ohio-2288, at ¶ 2-6. See generally State v. Johnson , 4th Dist. Highland No. 16C A26, 2017-Ohio-4213, ¶ 11, 22 (affi rming the trial court’s determination that, with respect to the appel lant’s successive postconviction motions, “‘no’ means no.”). {¶11} Mr. Payne’s assignments of error are overruled.

III. {¶12} Mr. Payne’s assignments of error are overruled. The judgment o f the Summit County Court of Comm on Pleas 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 period6

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. Costs taxed to Appellant.

LYNNE S. CALL AHAN FOR THE COURT

SCHAFER, J. TEODOSIO, J. CONCUR.

APPEARANCES: MICHAEL A. PAYNE, pro se, Appellant. SHERRI BEVAN WALSH, Prosecuti ng Attorney, and JACQUENETTE S. CO RGAN, Assistant Prosecuting Attorney, for Appellee.