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State v. Nichols

Court of Appeals of Ohio, Ninth District, Summit

July 31, 2019

STATE OF OHIO Appellee
v.
BRESHAUN NICHOLS Appellant

          APPEAL 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.

          SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          THOMAS A. TEODOSIO PRESIDING JUDGE.

         {¶1} 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.

         I.

         {¶2} 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.

         {¶3} 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).

         {¶4} 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.[1]

         {¶5} Mr. Nichols now appeals from the trial court's denial of his motion to vacate void judgment and raises two ...


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