Court of Appeals of Ohio, Eleventh District, Lake
Criminal Appeal from the Lake County Court of Common Pleas,
Case No. 2007 CR 000297.
Charles E. Coulson, Lake County Prosecutor, and Jennifer A.
McGee, Assistant Prosecutor, Lake County Administration
Building, (For Plaintiff-Appellee).
S. Lett, pro se, (Defendant-Appellant).
V. GRENDELL, J.
Defendant-appellant, Mark S. Lett, appeals from the Opinion
and Judgment Entry of the Lake County Court of Common Pleas,
denying his "Motion for Vacation of:
'Non-Cognizable' Offense." The issues to be
determined by this court are whether a motion to vacate a
conviction/sentence for felony murder following a guilty
plea, based on the failure to indict a defendant for a
predicate felony, is properly filed as a postconviction
petition over eight and a half years after the direct appeal
was initiated; whether such motion is barred by res judicata;
and whether a conviction and/or sentence issued under such
conditions are void. For the following reasons, we affirm the
judgment of the court below.
On June 25, 2007, the Lake County Grand Jury issued an
Indictment, charging Lett with Aggravated Murder, an
unclassified felony in violation of R.C. 2903.01(A); Murder,
an unclassified felony, in violation of R.C. 2903.02(A);
Murder, an unclassified felony, in violation of R.C.
2903.02(B); two counts of Tampering with Evidence, felonies
of the third degree, in violation of R.C. 2921.12(A)(1); two
counts of Receiving Stolen Property, felonies of the fourth
and fifth degree, in violation of R.C. 2913.51(A); Misuse of
Credit Cards, a felony of the fifth degree, in violation of
R.C. 2913.21(B)(2); and Gross Abuse of a Corpse, a felony of
the fifth degree, in violation of R.C. 2927.01(B).
On October 25, 2007, a change of plea hearing was held and
Lett entered a plea of guilty to Murder in violation of R.C.
2903.02(B). The court accepted the plea of guilty and issued
a Judgment Entry on October 31, 2007, memorializing its
finding. On the State's motion, the trial court entered a
Nolle Prosequi on the remaining counts of the Indictment.
The State advised the court that, had the matter been tried,
it would have brought forth evidence that Lett caused the
victim, Peter Milano's, death as a result of his
committing, or attempting to commit an offense of violence
that is a felony of the first or second degree, specifically
Felonious Assault. The State maintained that Lett punched the
victim and struck him in the head with a metal pipe or
Pursuant to a November 16, 2007 Judgment Entry of Sentence,
the trial court sentenced Lett to serve an indefinite prison
term of fifteen years to life.
Lett appealed, asserting that the trial court erred by not
"clearly explaining the effects of entering" a
guilty plea. This court affirmed, finding no error in the
acceptance of his plea. State v. Lett, 11th Dist.
Lake No. 2007-L-216, 2008-Ohio-4300, ¶ 9-13.
On October 30, 2017, Lett filed a Motion for Vacation of:
'Non-Cognizable' Offense. Lett argued that he had not
been charged with a first- or second-degree felony to serve
as a predicate offense for a felony murder conviction,
rendering his conviction and sentence void. The State filed a
November 9, 2017 Brief in Opposition.
In a November 17, 2017 Opinion and Judgment Entry, the trial
court construed this Motion as a postconviction petition,
which it rejected as untimely filed. It also found Lett's
arguments to be barred by res judicata.
Lett timely appeals and raises the following assignments of
"[1.] Whether a trial court may accept a guilty plea of
fewer than all of the essential elements of an offense and