[Cite as State v. Borecky , 2020-Ohio-3697.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO

STATE OF OHIO, : O P I N I O N Plaintiff-Appellee, : CASE NO. 2019-L-078 - vs - : MARK D. BORECKY, : Defendant-Appellant. :

Civil Appeal from the Lake Count y Court of Common Pleas, Case No. 2005 CR 000727.

Jud g ment: Affirmed.

Charles E. Coulson, Lake County Prosecutor, and Jennifer A. McGee, Assistant Prosecutor, Lake County Administration Building, 105 Main Stree t, P.O. Box 490, Painesville, Ohio 44077 ( For Plaintiff-Appellee )

. Mark D. Borecky, pro se, 314 East 246th Street, Euclid, Ohio 44123 (DefendantAppellant )

.

THOMAS R. WRIGHT, J. {¶1} Appellant, Mark D. Borecky appeals the trial court’s July 10, 2 019 judgment overruling his postconvicti on petition. We affirm. {¶2} Borecky pleaded guilty to rape, a first-degree felony in violat ion of R.C. 2907.02(A)(2), in January 2006, and he was sentenced to ten yea rs in prison and deemed a sexual predator on March 1, 2006. The transcript of proceedi ngs was filed in in his direct appeal on May 10, 2006. We subsequently affirmed Boreck y’s sexual predator2 determination in his direct appeal and later affirmed the trial court’s decision denying his motion to withdraw his guilty plea. State v. Borecky , 11th Dist. Lake No. 2006-L-048, 2006-Ohio-6870, and State v. Borecky , 11th Dist. Lake No. 2007-L-197, 2008-Ohio-3890

. {¶3} Borecky moved for postconviction relief on June 17, 2019 conten ding his conviction is void because the trial court lacked jurisdiction, pursuant to R.C. 2941.021 and Crim.R. 7(A), since Borecky claims he was facing a life sen tence and thus an indictment was required. The trial court overruled the petitio n finding it was filed beyond the 365-day time limit; that the petition was barred by res jud icata; and that it fails on the

merits. {¶4} Borecky raises one assigned error: {¶5} “The Lake County Common Pleas Court never acquired the proper s ubject matter jurisdiction when the state proceeded by way of informat ion due to the mandatory nature of Crim.R. 7(A) and R.C. 2941.021 since defendant was on notice for a possibility of a life sentence [and] the Lake County Common Pleas Court nev er obtained subject matter jurisdiction over the defendant.” {¶6} Borecky reiterates his argument presented to the trial court th at his conviction is void. We disagree. {¶7} “‘[I]n general, a void judgment is one that has been imposed by a court that lacks subject-matter jurisdicti on over the case or the authorit y to act. State v. Payne , 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 27. Unlike a void judgment, a voidable judgment is one rendered by a court that has both juri sdiction and authority to act, but the court's judgment is invalid, irregular, or erroneo us.’” State v. Straley , 2019-3 Ohio-5206, ¶ 25 quoting State v. Simpkins , 117 Ohio St.3d 420, 2008-Ohio- 1197, 884 N.E.2d 568, ¶ 12. {¶8} And unlike a voidable sentence, “a void sentence may be reviewe d at any time, on direct appeal or by collateral attack * * *.” State v. Straley , 2019-Ohio-5206, supra, ¶ 24. “[A] voidable judgment, although imposed irregula rly or erroneously, has the effect of a proper legal order unless it is successfully challe nged on direc t appeal.” Geauga Sav. Bank v. McGinnis , 11th Dist. Trumbull No. 2010-T-0052, 2010-Ohio-6247, ¶ 18. {¶9} Whether a court of common pleas possesses subject matter jurisd iction is a question of law that we review de novo. State v. Apanovitch , 155 Ohio St.3d 358, 2018- Ohio-4744, 121 N.E.3d 351, reconsideration denied, 154 Ohio St.3d 1467, 2018-Ohio5210, 114 N.E.3d 217. {¶10} Borecky contends that he was facing life imprisonment, and as s uch, he had to be charged and prosecuted via indictment as opposed to infor mation, and that this

renders his conviction void. {¶11} A complaint was originally filed in municipal court stating tha t Borecky was facing life in prison based on his alleged violation of R.C. 29 07.02(A)(1)(b) for engaging in sexual conduct with a minor less than ten years old. The ca se was subsequently bound over to the grand jury. {¶12} Borecky then waived his right to prosecution by indictment and was charged by information with one count of rape in violation of R.C. 2907 .02(A)(2), a first-degree felony. This charge subjects h im to a maximum prison term of t en years, not life. {¶13} Borecky’s argument is based on Cr im.R. 7(A), which states in pa rt:4 {¶14} “A felony that may be punished by death or life imprisonment sh all be prosecuted by indictment. All other felonies shall be prosecute d by indictment, except that after a defendant has been advised by the court of the nature o f the charge against the defendant and of the defendant's right to indictment, the defen dant may waive that right in writing and in open court.” {¶15} His argument also relies on R.C. 2941.021 that states: {¶16} “Any criminal offense which is not punishable by death or life imprisonment may be prosecuted by information filed in the common pleas cour t by the prosecuting attorney if the defendant, after he has been advised by the cou rt of the nature of the charge against him and of his rights under the constitution, is represented by counsel or has affirmatively waived counsel by waiver in writing and in op en court, waives in writing and in open court prosecution by indictment.” {¶17} Borecky did not waive his right to be prosecuted by indictment for rape in violation of R.C. 2907.02(A)(1)(b), punishable by life imprison ment, although this offense was initially identified. The fact that the initial municipal court complaint stated an offense punishable by life is of no consequence because the information charged Borecky with rape in violation of R.C. 2907.02(A)(2), which is not subject to punishment of life imprisonment or death. Thus, neither R.C. 2941.021 nor Crim.R. 7(A) were violated. {¶18} Thus, his conviction is not void, and his assigned error lacks merit. {¶19} The trial court also held that Borecky’s postconviction petitio n was untimely. We agree. {¶20} “‘[W]hether a court of common pleas possesses subject-matter ju risdiction to entertain an untimely petition for postconviction relief is a question of law, which5 appellate courts review de novo.” * * * .’” State v. Apanovitch , 155 Ohio St.3d 358, 2018- Ohio-4744, 121 N.E.3d 351, ¶ 24, reconsideration denied, 154 Ohio St.3d 1467, 2018- Ohio-5210, 114 N.E.3d 217. {¶21} The failure to timely file a petition for postconviction relief deprives a trial court of jurisdiction to address the petition. State v. Waulk , 4th Dist. Ross No. 15CA3501, 2016-Ohio-5018, ¶ 12, citing State v. Beaver, 131 Ohio App.3d 458, 722 N.E.2d 978 (11th Dist.1998). {¶22} The statute governing petitions for postconviction relief, R.C. 2953.21(A)(2), states in part: {¶23} “Except as otherwise provided in section 2953.23 of the Revised Code, a petition under division (A)(1) of this section shall be filed no later than three hundred sixty-five days after the date on which the trial transcript is filed in the court of appeals in the direct appeal of the judgment of conviction or adjudication * * *.” {¶24} R.C. 2953.23(A) identifies two exceptions to this time limit. T he first requires a petitioner to show, in part, that his claim is based on a new ly recognized federal or state right that arose after the time limit. R.C. 2953.23(A)(1). An d the second exception permits a petitioner to file an untimely postconviction appeal if there are new DNA results in the case. R.C. 2953.23(A)(2); State v. Fulk , 3rd Dist. Van Wert No. 15-06-13, 172 Ohio App.3d 635, 2007-Ohio-3141, 876 N.E.2d 983, ¶ 13. Neither exce ption applies here. {¶25} Moreover, Borecky’s petition was filed June 17, 2019, which is well beyond 365 days after the transcript of proceedings was filed in the c ourt of appeals in his direct appeal in May of 2006. Thus, Borecky’s postconviction petition was untimely as a matter of law, and as such, the trial court lacked jurisdiction to add ress it. State v. Apanovitch ,6 155 Ohio St.3d 358, 2018-Ohio-4744, 121 N.E.3d 351, reconsideration denied, 154 Ohio St.3d 1467, 2018-Ohio-5210, 114 N.E.3d 217. {¶26} Finally, the argument Borecky raises is based on matters of rec ord at the time of conviction, i.e., the information charging him with rap e and the complaint filed in the municipal court. Because Borecky could have raised this ar gument on direct appeal, res judicata bars him from raising it now. State v. Steffen , 70 Ohio St.3d 399, 410, 1994-Ohio-111, 639 N.E.2d 67 (1994) (“Postconviction revie w is a narrow remedy,

since res judicata bars any claim that was or could have been raised at trial or on direct appeal.”); State v. Sankey , 11th Dist. Ashtabula No. 2019-A-0037, 2019-Ohio-2870, ¶ 9. {¶27} Based on the foregoing, the trial court’s decision is affirmed.

TIMOTHY P. CANNON, P.J., MATT LYNCH, J.,

concur.