FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
SUMMIT, OHIO CASE No. CR 2013 04 0884
W. HIGGINS, JR., pro se, Appellant.
BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN,
Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
A. SCHAFER JUDGE
Defendant-Appellant, Tommy Higgins, Jr., appeals the judgment
of the Summit County Court of Common Pleas converting his
motion to vacate a void judgment into a petition for
postconviction relief and subsequently denying the motion. We
In 2013 the Summit County Grand Jury indicted Higgins on five
counts of felonious assault in violation of RC.
2903.11(A)(2), felonies of the second degree with firearm
specifications; one count of improperly discharging a firearm
in a habitation in violation of RC. 2923.161, with a firearm
specification, a felony of the second degree; two counts of
intimidating a witness in violation of RC. 2921.04(B),
felonies of the third degree; one count of possession of
drugs in violation of RC. 2925.11(A)(C)(2), a misdemeanor of
the third degree; and one count of driving under suspension
in violation of R.C. 4510.11, a misdemeanor of the first
degree. Higgins entered a plea of not guilty and the matter
proceeded through the pretrial process.
Pursuant to a plea agreement, Higgins ultimately entered a
plea of guilty to two counts of intimidation of a witness.
The trial court accepted his plea, found him guilty, and
dismissed the remaining charges upon recommendation of the
prosecutor. On February 4, 2014, following a presentence
investigation, the trial court sentenced Higgins to two years
incarceration on both counts to be served consecutively with
each other for a total of four years. The trial court then
suspended all prison time upon the condition that Higgins
complete one year of community control. One condition of
Higgins' community control was to obey all laws. Higgins
did not file a direct appeal of his conviction.
On September 17, 2014, the Summit County Grand Jury indicted
Higgins on numerous charges. Following a trial, a jury found
Higgins guilty of possession of heroin, trafficking in
heroin, aggravated possession of drugs, and possession of
criminal tools. The trial court sentenced Higgins to a total
of three years in prison. Consequently, on January 26, 2015, the
trial court found Higgins guilty of violating the conditions
of his community control in the present matter and imposed
the previously suspended four year sentence in a journal
entry on February 10, 2015. The trial court ordered the
sentences for both cases to be served consecutively for a
total of seven years. Higgins did not appeal his conviction
for violating his community control.
On March 16, 2018, Higgins filed a notice of appeal of the
February 10, 2015 order. This Court dismissed the attempted
appeal as untimely. See State v. Higgins, 9th Dist.
Summit No. 28981, Apr. 19, 2019. On October 23, 2018, Higgins
filed a second notice of appeal and moved this Court for
leave to file a delayed appeal from the February 10, 2015
order. This Court dismissed the attempted appeal. See
State v. Higgins, 9th Dist. Summit No. 29205, Nov. 28,
Relevant to this appeal, Higgins filed a motion to vacate
judgment on April 3, 2018, a motion to vacate void judgment
on April 13, 2018, a motion to proceed to judgment on April
20, 2018, and a motion to vacate void judgment on October 22,
2018. The trial court determined that Higgins' motions
were untimely motions for postconviction relief that failed
to allege or establish that he was unavoidably prevented from
any discovery or that he would not have been found guilty of
violating the conditions of his community control but for an
alleged sentencing error. In the alternative, the trial court
further found that Higgins' motions were barred by res
judicata and/or moot.
Higgins filed this timely appeal, raising one assignment of
error for our review.