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State v. Lett

Court of Appeals of Ohio, Eleventh District, Lake

June 18, 2018

STATE OF OHIO, Plaintiff-Appellee,
v.
MARK S. LETT, Defendant-Appellant.

          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).

          Mark S. Lett, pro se, (Defendant-Appellant).

          OPINION

          DIANE V. GRENDELL, J.

         {¶1} 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.

         {¶2} 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).

         {¶3} 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.

         {¶4} 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 similar object.

         {¶5} 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.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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.

         {¶9} Lett timely appeals and raises the following assignments of error:

         {¶10} "[1.] Whether a trial court may accept a guilty plea of fewer than all of the essential elements of an offense and ...


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