Court of Appeals of Ohio, First District, Hamilton
Criminal Appeal From: Hamilton County Court of Common Pleas
TRIAL NO. B-9403355
Appealed From Is: Appeal Dismissed
T. Deters, Hamilton County Prosecuting Attorney, and Philip
R. Cummings, Assistant Prosecuting Attorney, for
P. Ellis, pro se.
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.
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).
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).
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.
Common Pleas Court Jurisdiction
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.
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.
Court of Appeals Jurisdiction
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