Court of Appeals of Ohio, Fourth District, Pickaway
CRIMINAL APPEAL FROM COMMON PLEAS COURT
Timothy Young, Ohio Public Defender, and Katherine A. Szudy,
Assistant Public Defender, Columbus, Ohio, for appellant.
C. Wolford, Pickaway County Prosecuting Attorney,
Circleville, for appellee.
DECISION & JUDGMENT ENTRY
B. Abele, Judge.
Robert McNamara, defendant below and appellant herein,
appeals a Pickaway County Common Pleas Court judgment that
overruled his motion to vacate his convictions and sentence.
assigns the following error for review:
"THE TRIAL COURT ERRED WHEN IT OVERRULED ROBERT
MCNAMARA'S MOTION TO VACATE HIS VOID CONVICTION AND
SENTENCE UNDER R.C. 2919.21(B). R.C. 2919.21(B); STATE V.
PITTMAN, 150 OHIO ST.3D 113, 2006-OHIO-8314, 79 N.E.3D
531; STATE V. NOLIN [SIC.], 141 OHIO ST.3D 454,
2014-OHIO-4800, 25 N.E.3D 1016."
On April 3, 2009, a Pickaway County Grand Jury returned an
indictment that charged appellant with one count of
nonsupport of dependents in violation of R.C. 2919.21(B), a
fifth-degree felony. After appellant entered a guilty plea,
the trial court: (1) sentenced appellant to serve twelve
months of incarceration, to be served consecutively to Case
Numbers 2009-CR-071, 2009-CR-103, and 2009-CR-180; and (2)
notified appellant that he may be subject to a three year
period of post release control. Subsequently, appellant filed
a motion for judicial release. The trial court denied that
Some eight years later, appellant filed a motion to vacate
void convictions and sentence on June 26, 2017. The trial
court denied appellant's request and noted that appellant
did not timely file his petition. The court construed
appellant's motion as a petition for postconviction
relief and held that the statute, in effect at the time of
appellant's conviction, authorized a court to consider a
postconviction relief petition filed within 180 days after
the expiration of the time for filing an appeal. R.C.
2953.21(A)(2). The court determined that appellant filed his
petition beyond the 180 day time limit. Additionally, the
trial court noted that appellant based his motion on
State v. Pittman, 150 OHIO ST.3D 113,
2016-Ohio-8314, 79 N.E.3D 531, but pointed out that
Pittman has not been applied retroactively. As such,
on July 31, 2017 the trial court concluded that
appellant's petition did not satisfy the requirements for
a delayed petition for postconviction relief. This appeal
We first consider the proper standard of review. Generally,
the "abuse of discretion" standard is used to
review the dismissal of a petition for postconviction relief
without a hearing. State v. Waulk, 4th Dist. Ross
No. 15CA3501, 2016-Ohio-5018, ¶ 4, citing State v.
Hicks, 4th Dist. Highland No. 09CA15, 2010-Ohio-89,
¶ 10. Here, however, appellant asked the trial court to
determine whether his conviction is void. The determination
of whether a judgment is void is a question of law.
Blaine v. Blaine, 4th Dist. Jackson No. 10CA15,
2011-Ohio-1654, ¶ 19; see, also State v. Jones,
9th Dist. Summit No. 26854, 2013-Ohio-3710, ¶ 6 (quoting
Blaine). Appellate courts review questions of law
under the de novo standard of review. See State v.
Blake, 10th Dist. Franklin No. 10AP-992, 2011-Ohio-3318,
In the case sub judice, appellant pled guilty to one count of
nonsupport of dependents in violation of R.C. 2919.21(B), a
fifth-degree felony. That charge stemmed from appellant's
nonpayment of child support from March 1, 2007 to March 1,
2009. Appellant subsequently filed a motion to vacate his
conviction and sentence, but the trial court determined that
appellant's petition is actually a motion for
postconviction relief and had to be filed within 180 days
after the expiration of the time for filing an appeal. Thus,
the court concluded that appellant's petition is
This court has held that courts may "recast irregular
motions into whatever category is necessary to identify and
to establish the criteria by which a motion should be
evaluated." State v. Eldridge, 4th Dist. Scioto
No. 13CA3584, 2014-Ohio-2250, ¶ 5; State v.
Sanders, 4th Dist. Pickaway No. 13CA29, 2014-Ohio-2521,
¶ 6; citing State v. Lett, 7th Dist. Mahoning
No. 09MA131, 2010-Ohio-3167, ¶ 15; State v.
Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d
431, ¶ 12. Here, we agree with the trial court's
conclusion that appellant filed his petition beyond the R.C.
2953.21(A) time requirements. Additionally, we also agree
with the trial court's conclusion that the petition has
no merit. R.C. 2919.21(B) provides, "No person shall
abandon, or fail to provide support as established by a court
order to, another person whom, by court order or decree, the
person is legally obligated to support." The penalty
section of R.C. 2919.21(B) provides: "If the offender
previously has been convicted of or pleaded guilty to a
violation of division (A)(2) or (B) of this section or if the
offender has failed to provide support under division (A)(2)
or (B) of this section for a total accumulated period of
twenty-six weeks out of one hundred four consecutive weeks,
whether or not the twenty-six weeks were consecutive, then a
violation of division (A)(2) or (B) of this section is a
felony of the fifth degree." R.C. 2919.21(G)(1).
Appellant argued that State v. Pittman, 150 Ohio
St.3d 113, 2016-Ohio-8314, 79 N.E.3D 531, should apply here
and the result is that his sentence is an illegal sentence
for a void conviction. In Pittman, the Supreme Court
of Ohio determined that a person is not subject to
prosecution under R.C. 2919.21(B) for the nonpayment of an
arrearage-only child support order when he or she has no
current legal obligation to support an emancipated child.
Id. at ¶ 22-23. The state, however, contends
that because the Supreme Court did not indicate that
Pittman should apply retroactively, it applies
prospectively and is inapplicable to the case at bar.
Appellant points out that S.M., born on April 8, 1989,
reached 18 years of age on April 8, 2007. On August 6, 2007,
S.M. also withdrew from high school, without graduating, and
went to Tennessee. Thus, appellant reasons, because child
support should have terminated on August 5, 2007, appellant
did not fail to pay child support for more than 26 weeks
under a valid order during the indictment period. After S.M.
left high school, appellant had no obligation to pay child
support and, at that point, he became subject to arrearage
payments. Consequently, appellant argues ...