FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
SUMMIT, OHIO CASE No. CR-2008-08-2755-B
BRESHAUN NICHOLS, pro se, Appellant.
BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN,
Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
A. TEODOSIO PRESIDING JUDGE.
Appellant, Breshaun Nichols, appeals from the trial
court's denial of his motion to vacate void judgment in
the Summit County Court of Common Pleas. This Court affirms.
This Court previously set forth a portion of the procedural
history in this case as follows:
In 2009, Nichols was convicted of attempted murder, felonious
assault, aggravated robbery, having weapons under disability,
and three firearm specifications. The trial court sentenced
Nichols to 29 years in prison, and Nichols appealed. This
Court affirmed his convictions on appeal. See State v.
Nichols, 9th Dist. Summit No. 24900, 2010-Ohio-5737.
After this Court issued its decision, the trial court sua
sponte ordered Nichols to appear for resentencing due to a
defective post-release control notification. The trial court
held a resentencing on the issue of post-release control and
issued a new sentencing entry on August 15, 2011, to reflect
the correction to Nichols' term of post-release control.
On March 28, 2013, Nichols filed a pro se petition for
post-conviction relief ("PCR"). The State then
filed a motion to dismiss the petition as untimely. The trial
court agreed that the petition was untimely and ultimately
concluded that it lacked jurisdiction to consider it.
Consequently, the court dismissed the petition.
State v. Nichols, 9th Dist. Summit No. 26923,
2014-Ohio-102, ¶ 2-4. Mr. Nichols appealed from the
denial of his petition, and this Court affirmed, concluding
that: "Because Nichols' PCR petition was untimely
and failed to satisfy the requirements for an untimely
petition, the trial court did not err by dismissing the
petition." Id. at ¶ 14-15.
Mr. Nichols then filed a motion to correct void judgment,
which the trial court denied. He untimely appealed the denial
of that motion, and this Court dismissed the attempted appeal
for want of jurisdiction. See State v. Nichols, 9th
Dist. Summit No. 28649 (July 13, 2017).
Mr. Nichols next filed a motion to vacate void judgment,
arguing that his conviction is void because attempted felony
murder is "not a cognizable crime in Ohio," it was
unclear from the jury's verdict whether it found him
guilty of attempted purposeful murder or attempted felony
murder, and the attempted murder jury instruction given by
the trial court was "clearly erroneous." The trial
court recast the motion as a petition for post-conviction
relief, denied it as untimely, and further found that it was
barred by res judicata.
Mr. Nichols now appeals from the trial court's denial of
his motion to vacate void judgment and raises two ...