[Cite as State v. Collins, 2017-Ohio-648.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, ) CASE NO. 16 MA 0045 

) 

PLAINTIFF-APPELLEE, ) 

) 

VS. ) OPINION 

) 

KENYATTA COLLINS, ) 

) 

DEFENDANT-APPELLANT. ) 

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of 

Common Pleas of Mahoning County, 

Ohio 

Case No. 2012 CR 892 

JUDGMENT: Affirmed. 

APPEARANCES: 

For Plaintiff-Appellee: Atty. Paul J. Gains 

 Mahoning County Prosecutor 

Atty. Ralph M. Rivera 

Assistant Prosecuting Attorney 

21 West Boardman St., 6th Floor 

Youngstown, Ohio 44503 

For Defendant-Appellant: Kenyatta Collins, pro se 

Inmate No. 651-971 

Trumbull Correctional Camp 

P.O. Box 640 

5701 Burnett Road 

Leavittsburg, Ohio 44430 

JUDGES: 

Hon. Carol Ann Robb 

Hon. Gene Donofrio 

Hon. Cheryl L. Waite 

Dated: February 22, 2017 
[Cite as State v. Collins, 2017-Ohio-648.]

ROBB, P.J. 

{¶1} Defendant-Appellant Kenyatta Collins appeals the judgment of the 

Mahoning County Common Pleas Court overruling his “Motion To Vacate NonCognizable Offense.” He asserts his conviction of attempted murder is void. He 

relies on the Ohio Supreme Court’s Nolan case. However, Nolan was a 

pronouncement on the non-cognizable charge of “attempted felony murder.” In that 

case, the attempt statute was improperly applied to the type of murder defined by 

division (B) of R.C. 2903.02. Appellant was convicted of an attempt to commit the 

type of murder defined by division (A) of R.C. 2903.02, which requires a purpose to 

cause the death of another. This is a cognizable offense. Accordingly, the trial 

court’s judgment is affirmed. 

STATEMENT OF THE CASE 

{¶2} On August 14, 2012, Appellant asked the victim to meet him at a club in 

Youngstown. When the victim arrived, he was robbed and shot. Appellant was 

indicted for: attempted murder under R.C. 2903.02(A) and R.C 2923.02(A), for 

engaging in conduct which, if successful, would have resulted in the offense of 

purposely causing the death of another; aggravated robbery under R.C. 

2911.02(A)(1), for having and indicating possession of a deadly weapon while 

knowingly committing, attempting, or fleeing from a theft offense; felonious assault 

under R.C. 2903.11 (A)(2), for knowingly causing physical harm to another by means 

of a deadly weapon; and three firearm specifications. A superseding indictment was 

issued adding Willie Daniel, Jr. as a co-defendant. 

{¶3} On the day trial was to begin, Appellant entered a guilty plea to 

attempted murder under R.C. 2903.02(A) and R.C. 2923.02(A), aggravated robbery 

under R.C. 2911.02(A)(1), and two firearm specifications. (The felonious assault 

charge was nolled.) Under the November 2, 2013 plea agreement, the state agreed 

to recommend five years on each count to run concurrently plus three years for the 

merged firearm specifications for a total of eight years. The sentencing hearing 

proceeded on January 13, 2014. The trial court imposed the recommended 

sentence. Appellant did not appeal from the February 6, 2014 sentencing order. 
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{¶4} On March 11, 2015, Appellant filed a motion to vacate his attempted 

murder conviction. His motion claimed attempted murder was a non-cognizable 

offense due to the Ohio Supreme Court’s Nolan case. He urged a conviction for a 

non-cognizable offense would be void. He noted a void judgment can be attacked at 

any time. 

{¶5} After ten months without a ruling, Appellant filed an original action in 

this court against the trial judge. The judge filed an answer arguing Appellant had no 

clear right to have his conviction vacated and had an adequate legal remedy through 

a direct appeal. On March 21, 2016, we ordered the trial court to issue a ruling on 

Appellant’s March 11, 2015 motion. See State ex rel. Collins v. Sweeney, 7th Dist. 

No. 16 MA 0007, 2016-Ohio-1171, ¶ 6-10 (noting the judge’s argument misconstrued 

the type of relief sought in the mandamus action: “he is simply seeking to have the 

trial court rule on his March 11, 2015 motion”), citing State ex rel. Culgan v. Collier, 

135 Ohio St.3d 436, 2013-Ohio-1762, 988 N.E.2d 564. 

{¶6} On April 1, 2016, the trial court overruled Appellant’s motion to vacate 

his attempted murder conviction. The court’s entry noted, “The State of Ohio objects 

to said Motion.” As Appellant points out, however, the docket shows the state never 

responded to his March 11, 2015 motion. Appellant filed a timely notice of appeal 

from the trial court’s April 1, 2016 judgment. 

MURDER & ATTEMPT STATUTES 

{¶7} Pursuant to R.C. 2903.02(A), “No person shall purposely cause the 

death of another or the unlawful termination of another's pregnancy.” Effective June 

30, 1998, a second type of murder was added under division (B), which states: “No 

person shall cause the death of another as a proximate result of the offender's 

committing or attempting to commit an offense of violence that is a felony of the first 

or second degree and that is not a violation of section 2903.03 or 2903.04 of the 

Revised Code.” R.C. 2903.02(B). A conviction under either division (A) or (B) is 

officially labeled “murder.” R.C. 2903.02(D). 

{¶8} The offense described by division (B) is more specifically known as 

“felony murder.” See, e.g., State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, 926 

N.E.2d 1239, ¶ 43. There is no mens rea component contained in the felony murder 
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statute. Id., citing State v. Miller, 96 Ohio St.3d 384, 2002-Ohio-4931, 775 N.E.2d 

498, ¶ 31-33 (a defendant can commit felony murder even if there was no intent to 

cause a 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. In other words, the predicate 

offense contains the mens rea element for felony murder.” Fry, 125 Ohio St.3d 163 

at ¶ 73. 

{¶9} The general attempt statute provides: “No person, purposely or 

knowingly, and when purpose or knowledge is sufficient culpability for the 

commission of an offense, shall engage in conduct that, if successful, would 

constitute or result in the offense.” R.C. 2923.02(A). “Whoever violates this section 

is guilty of an attempt to commit an offense.” R.C. 2923.02(E)(1). This subdivision 

also specifies that an attempt to commit murder is a felony of the first degree. Id.

ASSIGNMENT OF ERROR: APPLICATION OF NOLAN 

{¶10} Appellant’s sole assignment of error alleges: 

“THE TRIAL COURT DENIED APPELLANT DUE PROCESS OF LAW AND 

EQUAL PROTECTION UNDER THE LAW, WHEN THAT COURT FAILED TO 

VACATE VOID JUDGMENT ON NON-COGNIZABLE OFFENSE.” 

{¶11} Appellant asks this court to apply the Ohio Supreme Court’s Nolan

holding to his attempted murder conviction. In Nolan, the Court reviewed an 

“attempted felony murder” conviction under the attempt statute and division (B) of the 

murder statute. State v. Nolan, 141 Ohio St.3d 454, 2014-Ohio-4800, 25 N.E.3d 

1016. The Court concluded it is not possible to commit “attempted felony murder” in 

Ohio. ¶ 5. In accordance: “Attempted felony murder is not a cognizable crime in 

Ohio.” Id. at syllabus. The Supreme Court explained how an attempt offense 

requires the mens rea of purposely or knowingly. See id. at ¶ 6-7, 10, citing R.C. 

2923.02(A). However, 

intent to kill need not be proven for the state to obtain a conviction for 

felony murder, so that a person can be convicted of that offense even 

though the death was unintended. Thus, this case devolves to an 

anfractuous question: Can a person be guilty of attempting to cause an 
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unintended death? We conclude that the court of appeals correctly 

determined that it is impossible to purposely or knowingly cause an 

unintended death. Accordingly, we hold that attempted felony murder is 

not a cognizable crime in Ohio. 

Id. at ¶ 10. 

{¶12} The state initially contends Appellant’s argument is barred by the 

doctrine of res judicata as he could have raised this argument via direct appeal but 

failed to appeal from his conviction. Under the doctrine of res judicata, a defendant 

who was represented by counsel is barred from raising an issue in a petition for postconviction relief if the defendant raised or could have raised the issue at trial or on 

direct appeal. See, e.g., State v. Szefcyk, 77 Ohio St.3d 93, 95, 671 N.E.2d 233 

(1996), syllabus; State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967). 

{¶13} To counter this argument, Appellant relies on the proposition that a void 

judgment can be attacked at any time. “A void judgment is a nullity and open to 

collateral attack at any time.” Lingo v. State, 138 Ohio St.3d 427, 2014-Ohio-1052, 7 

N.E.3d 1188, ¶ 46 (“The statement that void judgments are not open to collateral 

attack and that attacks on void judgments can be defeated by the doctrine of res 

judicata is mistaken.”). See also State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio5014, 1 N.E.3d 382, ¶ 7 (a void sanction can be reviewed at any time); 

Westmoreland v. Valley Homes Mut. Hsg. Corp., 42 Ohio St.2d 291, 294, 328 N.E.2d 

406 (1975) (a court has inherent authority to vacate a void judgment), citing Staff 

Note to Civ.R. 60(B) (1970) (“Any court has inherent power to vacate a void judgment 

without the vacation being subject to a time limitation.”). 

{¶14} Appellant then asserts that a conviction for a non-cognizable offense is 

void. He fails to cite a case directly supporting this conclusion; however, we note the 

Eleventh District has held: “Although the trial court had subject matter jurisdiction 

over the case, because attempted felony murder is not a cognizable crime in Ohio, 

the trial court lacked authority to sentence appellant and to enter an order of 

conviction on Count 2. Therefore, his conviction of that offense is void.” State v. 

Bozek, 11th Dist. No. 2015-P-0018, 2016-Ohio-1305, ¶ 21 (where the defendant was 
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actually convicted of attempted felony murder). We need not express an opinion on 

this holding here. 

{¶15} As the state points out, the Ohio Supreme Court’s Nolan case has no 

application to Appellant’s case. As reviewed supra, Nolan dealt with a conviction of 

an attempt to commit a murder under R.C. 2903.02(B), also known as “felony 

murder.” Appellant was not convicted by way of division (B). Appellant was 

convicted of an attempt to commit a murder under division (A) of R.C. 2903.02 for 

attempting to purposely cause a death. He was indicted for this offense, he pled 

guilty to this offense, and he was convicted of this offense. 

{¶16} That the attempted murder may have occurred contemporaneously with 

Appellant’s commission of an aggravated robbery does not detract from the separate 

offense of attempted murder. See State v. Maple, 9th Dist. No. 28031, 2016-Ohio5024, ¶ 5 (“Nolan's rationale does not apply because it is possible to attempt to 

purposely cause the death of another while committing a different felony.”) In other 

words, the state was not merely accusing Appellant of attempting to cause a death as 

a proximate result of the aggravated robbery. Rather, he was accused of and pled 

guilty to an attempt to purposely cause a death. 

{¶17} In summary, Nolan merely held that an attempt to commit murder under 

division (B) of R.C. 2903.02 (or “attempted felony murder”) is a non-cognizable 

offense. The case had no effect on the pre-existing offense of attempting to commit 

a murder under division (A) of R.C. 2903.02. See State v. Robinson, 8th Dist. 

103559, 2016-Ohio-2931, ¶ 15 (a defendant convicted of attempted murder under 

division (A) of a murder statute cannot use Nolan to argue the offense is noncognizable). Appellant was convicted of attempted murder under R.C. 2903.02(A). 

Attempted murder under R.C. 2903.02(A) is a cognizable offense. See id. See 

generally State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d 433, ¶ 

115-121 (finding sufficient evidence the defendant purposely attempted to cause the 

victim’s death under division (A) of R.C. 2903.02 and the attempt statute); State v. 

Kidder, 32 Ohio St.3d 279, 283, 513 N.E.2d 311 (1987) (“The elements of attempted 

murder, as defined by R.C. 2923.02 and 2903.02, are (1) purposely, (2) engaging in 

conduct which, if successful, would (3) cause another's death.”). 
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{¶18} Accordingly, Appellant’s argument is without merit. The judgment of the 

trial court is affirmed. 

Donofrio, J., concurs. 

Waite, J., concurs.