Court of Appeals of Ohio, Eleventh District, Portage
Criminal Appeals from the Portage County Court of Common
Pleas, Case Nos. 2015 CR 00417 and 2015 CR 00018.
V. Vigluicci, Portage County Prosecutor, and Pamela J.
Holder, Assistant Prosecutor, For Plaintiff-Appellee.
A. Nixon, pro se, PID: A694-305, Defendant-Appellant.
CYNTHIA WESTCOTT RICE, J.
Appellant, David A. Nixon, appeals from the judgment of the
Portage County Court of Common Pleas, denying his
"Motion to Vacate Sentence" without a hearing. We
In January 2015, appellant was charged with one count of
domestic violence, a felony of the fourth degree, in
violation of R.C. 2919.25. On February 9, 2015, he pleaded
guilty to the charge and, on May 8, 2015, the trial court
sentenced him to house arrest for 30 days and placed him
under the general control of the Adult Probation Department
in the Intensive Supervision Program for one year and four
additional years under the General Division Program. The
trial court ordered appellant's stated prison term to be
Four months later, the Probation Department filed a motion to
revoke appellant's community control for a violation of a
temporary protection order issued in a separate case and for
failing to report for case management meetings. The record
reflects appellant pleaded guilty to domestic violence, a
felony of the third degree, in violation of R.C. 2919.25 and,
on February 9, 2016, a sentencing and revocation hearing were
held together. Appellant again was placed under the general
control of the Adult Probation Department in the Intensive
Supervision Program for one year and under the General
Division Program for an additional 48 months. Appellant's
stated prison term was set at three years.
In June 2016, the Probation Department again filed a motion
to revoke based upon charges he was facing in Mahoning
County, his failure to report these charges, and his failure
to attend case management meetings. On February 27, 2017, the
trial court found appellant had violated the terms of his
community control and ordered: "Defendant's
probation is continued and it shall be stayed pending
Defendant's release from the pending cases from Judge
Becky L. Doherty."
In February 2018, the Probation Department filed a motion to
revoke community control for appellant's failure to
report for case management meetings, failure to complete an
anger management program or follow through with mental health
counseling services. The trial court issued a warrant for
appellant's arrest for failing to appear at the
revocation hearing. On March 30, 2018, appellant was held
"without bond" as he appeared in court without
counsel for his revocation hearing.
On May 11, 2018, the state withdrew the motion to revoke and
the trial court found it had not lifted the stay on
appellant's probation. The court consequently noted
"probation is unstayed and Defendant shall be placed on
probation as stated on February 7, 2017." On February
5, 2019, appellant filed a motion to vacate his sentence
arguing the trial court lacked authority to stay his
probation and lacked subject matter jurisdiction to sentence
him. The trial court denied appellant's motion without a
hearing. He appeals and assigns two errors for our review.
"[1.] The trial court abused its discretion by denying
defendant-appellant's motion to vacate sentence without
hearing and by failing to render the sentence void based on
the trial court's and defendant-appellant's knowledge
of the lack of subject matter jurisdiction.
"[2.] The trial court committed prejudicial error by
denying defendant-appellant's pro se motion to vacate
sentence when defendant-appellant clearly and convincingly
demonstrated an infringement of his constitutional rights and
statutory provisions, as to render the trial court's
judgment and sentences a nullity or void."
Under his assignments of error, appellant challenges the
trial court's decision denying his motion to vacate his
sentence without a hearing. He asserts the trial court lacked
subject-matter jurisdiction to impose a sentence while ...