Court of Appeals of Ohio, First District, Hamilton
Criminal Appeal From: Hamilton County Court of Common Pleas
TRIAL NO. B-0203877
T. Deters, Hamilton County Prosecuting Attorney, and Scott M.
Heenan, Assistant Prosecuting Attorney, for
T. Nix, pro se.
Defendant-appellant Damien T. Nix appeals the Hamilton County
Common Pleas Court's judgment overruling his "Motion
to Correct Illegal/Void Sentence and * * * Judgment Entry of
Sentence/Incarceration." We dismiss the case numbered
C-170044 as duplicative of the case numbered C-170040. In the
case numbered C-170040, we affirm in part and reverse in part
the court's judgment overruling the motion, and we remand
for correction of a clerical error in the judgment of
Nix was convicted in 2003 of murder and two counts of
felonious assault. He unsuccessfully challenged his
convictions on direct appeal. State v. Nix, 1st
Dist. Hamilton No. C-030696, 2004-Ohio-5502, delayed
appeal denied, 105 Ohio St.3d 1496, 2005-Ohio-1666, 825
In 2016, Nix filed with the common pleas court his
"Motion to Correct Illegal/Void Sentence and * * *
Judgment Entry of Sentence/Incarceration." He sought in
that motion resentencing on the firearm specifications
accompanying his felonious-assault offenses, arguing that
former R.C. 2929.14(D)(1)(b) (now R.C. 2929.14(B)(1)(b))
precluded the trial court from imposing a prison term for
each specification, because the felonious assaults had been
committed as part of the same transaction. And he sought
correction of his judgment of conviction to reflect that he
had been convicted following a jury trial, and not, as the
entry indicated, upon guilty pleas.
In this appeal, Nix advances two assignments of error that,
read together, challenge the overruling of his motion. The
challenge is well taken in part.
to Grant Relief Sought
Nix did not specify in his motion a statute or rule under
which the relief sought may be afforded. Thus, it fell to the
common pleas court to "recast" the motion
"into whatever category necessary to identify and
establish the criteria by which the motion should be
judged." State v. Schlee, 117 Ohio St.3d 153,
2008-Ohio-545, 882 N.E.2d 431, ¶ 12 and syllabus.
No jurisdiction to resentence on firearm
specifications. R.C. 2953.21 et seq., governing the
proceedings upon a petition for postconviction relief, permit
relief from a conviction upon proof of a constitutional
violation during the proceedings leading to that conviction.
See R.C. 2953.21(A)(1); State v. Powell, 90
Ohio App.3d 260, 264, 629 N.E.2d 13 (1st Dist.1993).
Nix's claim in his motion that former R.C.
2929.14(D)(1)(b) precluded sentencing him for both
felonious-assault specifications alleged a statutory, rather
than a constitutional, violation. See In re D.L.,
1st Dist. Hamilton Nos. C-170152, C-170153 and C-170154,
2018-Ohio-2161, ¶ 13 (holding that the constitutional
protections against double jeopardy are not implicated by
sentencing on multiple firearm specifications, because
specifications are penalty enhancements, not offenses).
Therefore, the claim was not reviewable by the common pleas
court under the standards provided by the postconviction
The claim was also not reviewable under either Crim.R. 32.1
or Crim.R 33. Nix had been convicted not upon guilty pleas,
but upon guilty verdicts returned by a jury. And he did not
seek relief based on that claim in the form of a new trial.
Nor was the claim reviewable by the common pleas court under
the standards provided under R.C. Chapter 2731 for a petition
for a writ of mandamus, under R.C. Chapter 2725 for a
petition for a writ of habeas corpus, or under R.C. Chapter
2721 for a declaratory-judgment action. Nix's motion did
not satisfy those statutes' procedural requirements.
See R.C. 2731.04, 2721.12(A) and 2725.04.
Nor could relief have been afforded on that claim under
Civ.R. 60(B). Civ.R. 60(B) governs the proceedings upon a
motion seeking relief from a judgment entered in a civil
action, and Crim.R. 57(B) permits a court in a criminal
matter to "look to the rules of civil procedure * * * if
no rule of criminal procedure exists." But Nix's
firearm-specification sentences were reviewable ...