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State v. Braggs

Court of Appeals of Ohio, First District

August 2, 2013

STATE OF OHIO, Plaintiff-Appellee,
v.
ROBERT BRAGGS, Defendant-Appellant.

Criminal Appeal From: Hamilton County Court of Common Pleas TRIAL NO. B-8903470

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for Plaintiff-Appellee.

Gregory A. Cohen, for Defendant-Appellant.

OPINION

Fischer, Judge.

{¶1} Defendant-appellant Robert Braggs appeals the Hamilton County Common Pleas Court's judgment overruling his "Motion for Declaratory Judgment That Sentence is Void." We affirm the court's judgment as modified.

{¶2} Braggs was convicted of drug abuse in December 1989 and was placed on probation for three years. He unsuccessfully challenged his conviction in his direct appeal to this court, see State v. Braggs, 1st Dist. Hamilton No. C-900003 (Nov. 9, 1990), and, collaterally, in a series of postconviction petitions and motions filed with the common pleas court. See, e.g., State v. Braggs, 1st Dist. Hamilton No. C-120487 (Feb. 27, 2013); State v. Braggs, 1st Dist. Hamilton No. C-120137 (June 27, 2012); State v. Braggs, 1st Dist. Hamilton No. C-950436 (Dec. 22, 1995). In 1992, Braggs's probation was "terminated" and his "case [was] closed."

{¶3} In his "Motion for Declaratory Judgment That Sentence is Void, " filed September 4, 2012, Braggs invoked the "jurisdiction [of a court] * * * to correct a void judgment" and sought relief in the form of "a declaratory judgment resolving the fact that [he had been] improperly given four hundred hours of community service in violation of [former] R.C. 2951.02(H)(1)(a) which statutory limitation is * * * two hundred hours." In this appeal, he advances two assignments of error that, distilled to their essence, challenge the overruling of his motion. We find no merit to this challenge, because the common pleas court lacked jurisdiction to afford Braggs the relief sought.

{¶4} Declaratory relief. Ohio's Declaratory Judgment Act, found in R.C. Chapter 2721, plainly "contemplate[s] a distinct proceeding * * * initiated by the filing of a complaint." Thus, "[a] 'motion' for a declaratory judgment is procedurally incorrect and inadequate to invoke the jurisdiction of [a] court pursuant to R.C. Chapter 2721." Fuller v. German Motor Sales, Inc., 51 Ohio App.3d 101, 103, 554 N.E.2d 139 (1st Dist.1988); accord State v. Nemitz, 1st Dist. Hamilton No. C-970561, 1998 Ohio App. LEXIS 3590 (Aug. 7, 1998). Braggs sought declaratory relief by means of a motion filed in his criminal case. Therefore, he failed to invoke the jurisdiction conferred by the act.

{¶5} Moreover, even if Braggs had satisfied the act's procedural and jurisdictional requirements, he would not have been entitled to the relief sought. The Declaratory Judgment Act is "remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations." Radaszewski v. Keating, 141 Ohio St. 489, 496, 49 N.E.2d 167 (1943) (quoting former G.C. 12102-12); accord Mid-American Fire & Cas. Co. v. Heasley, 113 Ohio St.3d 133, 136, 2007-Ohio-1248, 863 N.E.2d 142. Thus, a declaratory judgment may serve to "relieve parties from acting at their own peril in order to establish their legal rights." Gray v. Willey Freightways, Inc., 89 Ohio App.3d 355, 362, 624 N.E.2d 755 (6th Dist.1993); accord Steinriede v. Cincinnati, 1st Dist. Hamilton No. C-100289, 2011-Ohio-1480, ¶ 11.

{¶6} But the Declaratory Judgment Act does not authorize a court to render an advisory opinion. A declaratory judgment action must instead "satisfy a threshold requirement of * * * justiciability." Arnott v. Arnott, 132 Ohio St.3d 401, 2012-Ohio-3208, 972 N.E.2d 586, ¶ 10. Thus, a declaratory judgment action will lie to determine only "an actual controversy, the resolution of which will confer certain rights or status upon the litigants." Corron v. Corron, 40 Ohio St.3d 75, 79, 531 N.E.2d 708 (1988); see Schaefer v. First Natl. Bank, 134 Ohio St. 511, 18 N.E.2d 263 (1938), paragraph three of the syllabus (requiring a showing that "a real controversy between adverse parties exists which is justiciable in character and [that] speedy relief is necessary to the preservation of rights that may be otherwise impaired or lost"). Accord Mallory v. Cincinnati, 1st Dist. Hamilton No. C-110563, 2012-Ohio-2861, ¶ 10-16.

{¶7} Because of the justiciability requirement, a declaratory judgment action does not provide a means for determining whether previously-adjudicated rights were properly decided. State v. Stewart, 2d Dist. Montgomery No. 98-CA-116, 1999 Ohio App. LEXIS 323, *8 (Feb. 5, 1999). It follows then that a declaratory judgment action will not, as Braggs would have it, provide a substitute for an appeal of, or a means for mounting a collateral challenge to, a criminal conviction. See Wilson v. Collins, 10th Dist. Franklin No. 10AP-511, 2010-Ohio-6538, ¶ 9; Gotel v. Ganshiemer, 11th Dist. Ashtabula No. 2008-A-0070, 2009-Ohio-5423, ¶ 47; Moore v. Mason, 8th Dist. Cuyahoga No. 84821, 2005-Ohio-1188, ¶ 14; State v. Zizelman, 3d Dist. Auglaize No. 2-98-33, 1999 Ohio App. LEXIS 1769, *7 (Apr. 9, 1999); State v. Brooks, 133 Ohio App.3d 521, 524-526, 728 N.E.2d 1119 (4th Dist.1999), citing Tootle v. Wood, 40 Ohio App.2d 576, 577, 321 N.E.2d 623 (4th Dist.1974); Stewart at *8.

{¶8} Postconviction relief. Rather, "the exclusive remedy by which a person may bring a collateral challenge to the validity of a conviction or sentence in a criminal case" is provided by R.C. 2953.21 et seq., governing the proceedings upon a petition for postconviction relief. R.C. 2953.21(J). Therefore, Braggs's motion was reviewable under the standards provided by the postconviction statutes. See State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12.

{¶9} But Braggs filed his postconviction motion well after the expiration of the time prescribed by R.C. 2953.21(A)(2). R.C. 2953.23 closely circumscribes the jurisdiction of a common pleas court to entertain a late postconviction claim: the petitioner must show either that he was unavoidably prevented from discovering the facts upon which his claim depends, or that his claim is predicated upon a new or retrospectively applicable right recognized by the United States Supreme Court since the time for filing a postconviction petition expired or since he filed his last postconviction petition; and he must show "by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found [him] guilty of the offense of which [he] was convicted."

{¶10} The record before us does not, as it could not, demonstrate that, but for the claimed sentencing error, no reasonable factfinder would have found Braggs guilty of the offense of which he was convicted. Because Braggs satisfied neither the time restrictions of R.C. 2953.21(A)(2) nor the jurisdictional requirements of R.C. 2953.23, the postconviction statutes did not confer upon the ...


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