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State v. Higgins

Court of Appeals of Ohio, Ninth District, Summit

July 31, 2019

STATE OF OHIO Appellee
v.
TOMMY W. HIGGINS, JR. Appellant

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 2013 04 0884

          TOMMY W. HIGGINS, JR., pro se, Appellant.

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

          DECISION AND JOURNAL ENTRY

          JULIE A. SCHAFER JUDGE

         {¶1} 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 affirm.

         I.

         {¶2} 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.

         {¶3} 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.

         {¶4} 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.[1] 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.

         {¶5} 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, 2018.

         {¶6} 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.

         {¶7} Higgins filed this timely appeal, raising one assignment of error for our review.

         II.

         Assignment ...


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