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State v. McNamara

Court of Appeals of Ohio, Fourth District, Pickaway

July 5, 2018

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

          CRIMINAL APPEAL FROM COMMON PLEAS COURT

          Timothy Young, Ohio Public Defender, and Katherine A. Szudy, Assistant Public Defender, Columbus, Ohio, for appellant.

          Judy C. Wolford, Pickaway County Prosecuting Attorney, Circleville, for appellee.

          DECISION & JUDGMENT ENTRY

          Peter B. Abele, Judge.

         {¶1} 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.

         Appellant 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."

         {¶2} 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 motion.

         {¶3} 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 followed.

         {¶4} 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, ¶ 17.

         {¶5} 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 untimely.

         {¶6} 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).

         {¶7} 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.

         {¶8} 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 ...


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