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State v. Ellis

Court of Appeals of Ohio, First District, Hamilton

August 7, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
JAMES P. ELLIS, Defendant-Appellant.

          Criminal Appeal From: Hamilton County Court of Common Pleas TRIAL NO. B-9403355

         Judgment Appealed From Is: Appeal Dismissed

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

          James P. Ellis, pro se.

          OPINION

          Per Curiam.

         {¶1} Defendant-appellant James P. Ellis appeals the Hamilton County Common Pleas Court's judgment overruling his "Motion for: 'Sentencing,' (to correct a fundamental miscarriage of justice)" and "Motion for: 'Issuance of a Final Appealable Order.'" We dismiss the appeal for lack of jurisdiction.

         {¶2} In 1995, Ellis was convicted of aggravated murder and aggravated burglary. The trial court imposed prison terms of life for the aggravated murder and ten to 25 years, with ten years of actual incarceration, for the aggravated burglary and ordered that those terms be served consecutively. We affirmed those convictions in the direct appeal. See State v. Ellis, 1st Dist. Hamilton No. C-950307, 1996 WL 496930 (Sept. 4, 1996), appeal not allowed, 77 Ohio St.3d 1518, 674 N.E.2d 371 (1997).

         {¶3} In 2016, Ellis filed with the common pleas court a single document captioned "Motion for: 'Sentencing,' (to correct a fundamental miscarriage of justice)" and "Motion for: 'Issuance of a Final Appealable Order.'" In his combined motions, Ellis asserted that his consecutive sentences are void and thus unenforceable because he had been "ordered" to serve his ten-to-25-year prison term after completing his life term, and that, in the absence of a lawful sentence, the judgment of conviction did not comply with Crim.R. 32(C).

         {¶4} In this appeal, Ellis presents a single assignment of error challenging the overruling of his motions. We do not reach the merits of the assignment of error, because we have no jurisdiction to review the judgment overruling the motions.

         No Common Pleas Court Jurisdiction

         {¶5} Ellis did not specify in either his "Motion for: 'Sentencing'" or his "Motion for: 'Issuance of a Final Appealable Order'" a statute or rule under which the relief sought might have been afforded. The common pleas court was thus left to "recast" the motions "into whatever category necessary to identify and establish the criteria by which the motion[s] should be judged." State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12 and syllabus. Accord State v. Diol, 1st Dist. Hamilton No. C-180249, 2019-Ohio-2170, ¶ 17; State v. Black, 1st Dist. Hamilton No. C-070546, 2008-Ohio-3790, ¶ 4.

         {¶6} But the motions did not allege a constitutional violation and thus were not reviewable by the common pleas court under the standards provided by R.C. 2953.21 et seq., governing the proceedings upon a petition for postconviction relief. See R.C. 2953.21(A)(1) (requiring a postconviction petitioner to demonstrate a constitutional violation in the proceedings resulting in his conviction). The motions were also not reviewable as motions for a new trial under Crim.R. 33 or as motions to withdraw a guilty or no-contest plea under Crim.R. 32.1, because Ellis was convicted following a jury trial, not upon guilty or no-contest pleas, and his motions did not seek a new trial. The motions were not reviewable under R.C. Chapter 2731 as petitions for a writ of mandamus, under R.C. Chapter 2721 as declaratory judgment actions, or under R.C. Chapter 2725 as petitions for a writ of habeas corpus, because the motions did not satisfy those statutes' procedural requirements. See R.C. 2731.04, 2721.12(A), and 2725.04. And Crim.R. 57(B) did not require the common pleas court to entertain the motions under Civ.R. 60(B), because Ellis's sentences were reviewable under the procedures provided for a direct appeal. Therefore, the common pleas court had no jurisdiction to entertain the motions. See State v. Smith, 1st Dist. Hamilton Nos. C-150445 and C-150446, 2016-Ohio-3521, ¶ 17-19.

         No Court of Appeals Jurisdiction

         {¶7} Moreover, this court has no jurisdiction to review the entry overruling Ellis's postconviction motions for "Sentencing" and "Issuance of a Final Appealable Order." Article IV, Section 3(B)(2), Ohio Constitution, confers upon an intermediate appellate court only "such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final ...


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