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State v. Love

Court of Appeals of Ohio, Seventh District, Mahoning

March 16, 2018


          Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 1999 CR 645 A

          For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney.

          For Defendant-Appellant: Christopher Love, pro se.

          Hon. Carol Ann Robb Hon. Gene Donofrio Hon. Cheryl L. Waite, Judge.


          ROBB, P.J.

         {¶1} Defendant-Appellant Christopher Love appeals the decision of the Mahoning County Common Pleas Court denying his motion to vacate his conviction as void on the basis of subject matter jurisdiction. Appellant claimed an internal inconsistency between the caption and the body of the indictment rendered his aggravated murder conviction void. The court dismissed the motion to vacate a void judgment and found the motion untimely under the postconviction relief statutes. For the following reasons, the trial court's judgment is affirmed.


         {¶2} On July 15, 1999, a direct presentment joint indictment was filed against Appellant and a co-defendant. The body of the indictment, located on the second page, charged: "on or about July 5, 1999 at Mahoning County, [the named defendants] did purposely and with prior calculation and design, cause the death of Olivia Hubbert. In violation of Ohio Revised Code Section 2903.01 (A)(F), a Felony * * *." Division (F) of the cited statute (R.C. 2903.01) states whoever violates this section is guilty of aggravated murder and shall be punished as provided in R.C. 2929.02. Division (A) sets forth the elements as quoted in the indictment. The caption of the indictment, located on the first page, stated, "MURDER R.C. 2903.02(A)(B) Felony/Life"; this statute defines the offense of murder.

         {¶3} Before convicting Appellant of aggravated murder, the jury heard the following testimony. Appellant approached the victim on a sidewalk near the Victory Estates housing projects in Youngstown. The co-defendant had just been involved in a physical altercation with the victim, but this appeared to be over. Nevertheless, Appellant punched the victim hard in the face, which knocked her out. He then repeatedly kicked, stomped, and jumped on her; he stood on her at one point pronouncing he was "the king of this mountain." Appellant carried the unconscious victim who was breathing with great difficulty; after a short distance, he threw her to the ground. He then carried her to her apartment and left her there where she was found dead with her pants pulled down to her ankles and her shirt pulled up to her neck. The victim's cause of death was asphyxia due to beating with strangulation; the victim had a broken hyoid bone and broken cartilage in her neck.

         {¶4} Appellant's shoes tested positive for blood. Appellant testified he approached the victim and co-defendant who were arguing. He said the victim yelled at him causing spit to land on his face. This prompted him to push the victim in the face which resulted in her falling to the ground. Appellant claimed it was the co-defendant who then "started kicking the hell out of her." He stated he did not participate in kicking the victim. He admitted he carried the victim but said he did not mean to drop her. He thereafter helped carry the victim to her apartment.

         {¶5} The court provided jury instructions on aggravated murder, murder, and involuntary manslaughter. The jury found Appellant guilty of aggravated murder. The co-defendant was acquitted. At the sentencing hearing, defense counsel argued in support of a motion for new trial or in the alternative modification of the verdict to a lesser offense. He argued the state failed to prove prior calculation and design (for aggravated murder); he alternatively argued the state failed to prove purpose (for murder) for an amendment of the verdict to involuntary manslaughter.

         {¶6} The court denied his motion and recited: "The Court finds the defendant was found guilty by a jury of his peers of aggravated murder, a violation of Section 2903.02(A), and that on or about the 5th day of July, 1999, at Mahoning County, Ohio, Christopher Love, also known as Christopher Loma, did purposely, and with prior calculation and design, cause the death of Olivia Hubbert." The statute recited in this portion of the transcript was the murder statute instead of the aggravated murder statute, but the quoted elements were those corresponding to aggravated murder. Compare R.C. 2903.02(A) ("No person shall purposely cause the death of another"). The court thereafter announced the sentence by stating: "It is hereby ordered that the defendant serve a term of life in prison for aggravated murder with parole eligibility after 20 years in accordance with Section 2929.03(A)." This cited statute provided for a mandatory life sentence with parole eligibility after 20 years for an aggravated murder conviction. See Former R.C. 2929.03(A) (if the indictment did not contain specifications for aggravating circumstances, sexual motivation, or sexually violent predator). See also R.C. 2929.02, citing R.C. 2929.03.

         {¶7} Both of these quoted statements were repeated in the trial court's November 27, 2002 sentencing entry. Appellant filed a timely direct appeal. The transcripts were filed in this court on February 3, 2004, starting the time for a timely postconviction relief petition. Appellant was represented by a different attorney on appeal who raised twelve assignments of error. The trial court's judgment was affirmed by this court. State v. Love, 7th Dist. No. 02 CA 245, 2006-Ohio-1762.

         {¶8} On October 31, 2008, Appellant filed a motion to vacate a void judgment for lack of subject matter jurisdiction, which the trial court overruled on November 10, 2008. (The court ordered the clerk to serve the defendant with the judgment, but the docket does not evince service by the clerk.) In 2010, Appellant filed a motion seeking to have his sentence declared void as impermissible by statute, claiming the charge and conviction should be construed as murder and he ...

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