State v. Covington

• Decision Date: 07 February 2020
• Docket Number: Appellate Case No. 2019-CA-50
• Citation: 2020 Ohio 390
• Parties: STATE OF OHIO Plaintiff-Appellee v. FREDERICK COVINGTON Defendant-Appellant
• Court: Ohio Court of Appeals

2020 Ohio 390

STATE OF OHIO Plaintiff-Appellee v. FREDERICK COVINGTON Defendant-Appellant

Appellate Case No. 2019-CA-50

COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

February 7, 2020

Trial Court Case No. 2012-CR-70(A)

(Criminal Appeal from Common Pleas Court)

OPINION

JOHN M. LINTZ, Atty. Reg. No. 0097715, Assistant Prosecuting Attorney, Clark County Prosecutor's Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee

REGINA ROSEMARY RICHARDS, Atty. Reg. No. 0079457, 4 West Main Street, Suite 707, Springfield, Ohio 45502 Attorney for Defendant-Appellant

WELBAUM, P.J.

{¶ 1} Defendant-appellant, Frederick Covington, appeals from a judgment of the Clark County Court of Common Pleas overruling his "Motion to Vacate Void Judgment of Conviction and Sentence and to Withdraw Guilty Plea." In support of his appeal, Covington argues that the trial court erroneously determined that it lacked jurisdiction to rule on the motion due to the untimely nature of its filing and that, even if it was timely filed, the claims raised therein were barred by res judicata. The trial court did not abuse its discretion in overruling Appellant's petition for post-conviction relief on grounds of untimeliness and res judicata because the untimeliness of Appellant's petition and res judicata bar a challenge to a voidable sentence. Even though the trial court imposed a non-mandatory prison sentence for Appellant's offense of engaging in a pattern of corrupt activity when a mandatory prison sentence was required by law, that portion of Appellant's sentence is voidable, not void. Therefore, the judgment of the trial court is affirmed.

Facts and Course of Proceedings

{¶ 2} On October 29, 2012, Covington entered into a plea agreement and pled guilty to one count of engaging in a pattern of corrupt activity in violation of R.C. 2923.32(A)(1), a felony of the first degree, and two counts of trafficking in cocaine in violation of R.C. 2925.03(A)(1) and (A)(2), both felonies of the first degree. In exchange for Covington's guilty plea, the State agreed to dismiss the remaining charges brought against him in this case as well as the charges in Clark C.P. Nos. 2012-CR-535(A), 2012-CR-605, and 2011-CR-788(A). Both Covington and the State also agreed that Covington would not receive an aggregate prison sentence that exceeded 20 years.

{¶ 3} At Covington's plea hearing, the trial court conducted a Crim.R. 11 plea colloquy and advised Covington of the maximum possible penalties he faced for his offenses. During this exchange, the trial court informed Covington that the trafficking in cocaine offenses carried a mandatory prison term. The trial court, however, did not inform Covington that the charge of engaging in a pattern of corrupt activity also carried a mandatory prison term. The plea form signed and reviewed by Covington indicated that the charge for engaging in a pattern of corrupt activity carried a non-mandatory prison term. The State concedes that the portion of the plea form indicating that prison time was not mandatory for engaging in a pattern of corrupt activity was incorrect and was not remedied prior to sentencing.

{¶ 4} On November 8, 2012, Covington's case proceeded to sentencing. At sentencing, the trial court imposed an eleven-year mandatory prison term for each of the two counts of trafficking in cocaine and ordered those sentences to be served concurrently with one another. The trial court also imposed a seven-year prison sentence for engaging in a pattern of corrupt activity and ordered that sentence to be served consecutively with the sentences for trafficking in cocaine. The trial court did not state that the seven-year prison term for engaging in a pattern of corrupt activity was mandatory. Judgment Entry of Conviction (Nov. 8, 2012), p. 3; Sentencing Tr. (Nov. 8, 2012), p. 17.

{¶ 5} Covington did not file a timely direct appeal from his conviction. However, on May 17, 2013, Covington filed a motion for leave to file a delayed appeal. In his motion, Covington indicated that he wished to appeal the validity of his guilty plea and argued that his appeal was delayed because his trial counsel had advised him that there was nothing to appeal since he pled guilty and was sentenced within the authorized statutory range.

{¶ 6} On August 7, 2013, this court issued a decision and entry overruling Covington's motion to file a delayed appeal and stated the following:

The November 8, 2012 conviction entry shows that Covington was sentenced to a non-mandatory term of seven years on one count of engaging in a pattern of corrupt activity, a first-degree felony. Covington argues that the trial court was required by law to impose mandatory prison time for this count. Covington states that at his plea hearing, and within the plea form itself, however, he was not informed that his sentence on Count One [engaging in a pattern of corrupt activity] would be mandatory; indeed, the conviction entry reflects that it is not. As a result, Covington now argues that reversal on appeal is likely because he did not knowingly, intelligently, and voluntarily enter into a plea when he was informed that he would not receive mandatory prison time on Count One, despite mandatory time being required by law.

Upon review, the court does not find Covington prejudiced at this time. Pursuant to the plea agreement,¹he has been ordered to serve a non-mandatory prison sentence on Count One. He was not told the term would be mandatory, and a mandatory term was not imposed. Should the non-mandatory sentence be modified and a mandatory termimposed, Covington would have the opportunity at that time to appeal that new sentence.

(Emphasis added.) State v. Covington, 2d Dist. Clark No. 13-CA-47 (Decision and Final Judgment Entry, Aug. 7, 2013), p. 2.

{¶ 7} Following this court's decision denying Covington's motion for a delayed appeal, Covington's case remained dormant for five years until Covington filed a "Motion to Vacate Void Judgment of Conviction and Sentence and to Withdraw Guilty Plea" on November 29, 2018. In response to Covington's motion, the State filed an opposing memorandum arguing that the motion was an untimely petition for post-conviction relief that the trial court lacked jurisdiction to consider. The State also argued that the claims asserted in the motion were barred by res judicata. Several months later, on June 5, 2019, the trial court issued an entry overruling Covington's motion without a hearing "for the reasons set forth in the State's brief in opposition[.]" Entry (June 5, 2019), p. 1.

{¶ 8} Covington now appeals from the trial court's order overruling his motion, raising a single assignment of error for review.

Assignment of Error

{¶ 9} Under his sole assignment of error, Covington contends that the trial court erred in overruling his "Motion to Vacate Void Judgment of Conviction and Sentence and to Withdraw Guilty Plea" without a hearing. Specifically, Covington argues that the trial court erroneously determined that it lacked jurisdiction to rule on the motion due to the untimely nature of its filing. Covington also argues that the trial court erroneously determined that the claims raised in his motion were barred by res judicata.

{¶ 10} Covington's motion is a collateral attack on the validity of his conviction; therefore it is properly construed as a petition for post-conviction relief. State v. Kuck, 2d Dist. Darke No. 2017-CA-15, 2018-Ohio-3290, ¶ 6, citing State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905 (1999). "We review a denial of a petition for post[-]conviction relief for which no hearing was held under an abuse of discretion standard." (Citations omitted.) State v. Wood, 2d Dist. Clark No. 2018-CA-1, 2018-Ohio-3204, ¶ 8. "An abuse of discretion occurs when the trial court's decision is unreasonable, arbitrary, or unconscionable." (Citations omitted.) Id.

{¶ 11} Petitions for post-conviction relief are governed by R.C. 2953.21 through R.C. 2953.23. Pursuant to R.C. 2953.21(A)(2), if no appeal is taken, a petition for post-conviction relief "shall be filed no later than three hundred sixty-five days after the expiration of the time for filing the appeal." It is well established that "[t]rial courts lack jurisdiction to consider an untimely petition for post-conviction relief, unless the untimeliness is excused under R.C. 2953.23(A)." (Citations omitted.) State v. Current, 2d Dist. Champaign No. 2012 CA 33, 2013-Ohio-1921, ¶ 16.

{¶ 12} In this case, it is clear that Covington's petition for post-conviction relief was untimely, as it was filed almost five years after the expiration of the deadline to file an appeal from his conviction.² Covington also failed to even argue that the untimeliness ofhis petition was excused under the exceptions set forth in R.C. 2953.23(A). However, " 'a trial court, confronted with an untimely * * * petition for post[-]conviction relief that challenges a void sentence, must ignore the procedural irregularities of the petition and, instead, vacate the void sentence and resentence the defendant.' " State v. Hudson, 2d Dist. Clark No. 2014 CA 53, 2014-Ohio-5363, ¶ 19, quoting State v. Holcomb, 184 Ohio App.3d 577, 2009-Ohio-3187, 921 N.E.2d 1077, ¶ 19 (9th Dist.). Accord State v. Harrison, 2d Dist. Montgomery No. 24471, 2011-Ohio-6803, ¶ 20; State v. Alexander, 8th Dist. Cuyahoga No. 105969, 2018-Ohio-1198, ¶ 15 ("[i]n these circumstances, appellate courts * * * have addressed the merits of otherwise untimely petitions to determine if any alleged errors rendered the defendant's sentence void").

{¶ 13} A void sentence is "not precluded from appellate review by principles of res judicata, and may be reviewed at any time, on direct appeal or by collateral attack." State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 40. To the extent that a sentence is void, only the offending portion of the sentence is subject to review and correction. Id....