State v. Levy

Decision Date16 March 2023
Docket Number111779
Citation2023 Ohio 818
PartiesSTATE OF OHIO, Plaintiff-Appellee, v. JERMAINE LEVY, Defendant-Appellant.
CourtOhio Court of Appeals

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-01-404892-A

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Anthony T. Miranda, Assistant Prosecuting Attorney, for appellee.

Law Offices of William B. Norman and William B. Norman, for appellant.



{¶ 1} Defendant-appellant, Jermaine Levy, appeals the trial court's judgment entry denying his emergency motion to vacate void judgment. For the reasons that follow, we affirm.

I. Procedural Background

{¶ 2} In 2002, a jury found Levy, who acted as his own trial counsel, guilty of escape, a second-degree felony, and forgery, a fifth-degree felony. The trial court sentenced him to three years in prison, to be served consecutively to other previously imposed prison sentences.[1] Levy, through a delayed appeal, challenged his convictions, raising six assignments of error, none of which challenged his waiver of counsel at trial. State v. Levy, 8th Dist. Cuyahoga No. 83114, 2004-Ohio-4489, ¶ 1-8.[2] This court overruled his assignments of error and affirmed his convictions. Id.[3]

{¶ 3} Subsequently in 2005, Levy, pro se, filed a delayed application to reopen his appeal pursuant to App.R. 26(B), and in 2006 filed an amended application. This court denied the applications without opinion. The Ohio Supreme Court declined jurisdiction and dismissed the appeal. State v. Levy, 109 Ohio St.3d 1458, 2006-Ohio-2226, 847 N.E.2d 9.

{¶ 4} In 2008, the United States District Court for the Northern District of Ohio dismissed Levy's petition for writ of habeas corpus, finding that he failed to make a substantial showing of a denial of a constitutional right directly related to his conviction or custody. See Levy v. Ohio, N.D.Ohio No. 1:06-CV-237, 2008 U.S. Dist. LEXIS 8726 (Feb. 6, 2008). The content of Levy's petition and the federal court's decision will be discussed later in this opinion.

{¶ 5} In June 2022, Levy filed an emergency motion to vacate void judgment contending that his convictions were void because he was deprived of his constitutional right to counsel, predicated on an invalid waiver of counsel. The state opposed the motion, contending that the Ohio Supreme Court's recent holdings in State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, and State v. Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776, did not afford Levy relief from his conviction because (1) a denial of counsel renders a conviction voidable, and (2) res judicata prevented Levy from this challenge because he could have raised this issue in his direct appeal. The trial court summarily denied Levy's motion.

{¶ 6} Levy now appeals, raising the following two assignments of error, which will be addressed together:

I. The trial court's failure to inform appellant Levy of, and ensure he understood: the nature of the charged offenses, the statutory offenses included, the range of allowable punishments, the possible defenses to each change, any other facts essential to a broad understanding of the matter as a whole, and the dangers and disadvantages of self-representation resulted in an invalid waiver of counsel.
II. Denial of counsel, effected through an invalid waiver of counsel, results in a loss of jurisdiction and a conviction which is void.

{¶ 7} At the heart of Levy's appeal is his reliance on the Ohio Supreme Court's decision in State ex rel. Ogle v. Hocking Cty. Common Pleas Court, 167 Ohio St.3d 181, 2021-Ohio-4453, 190 N.E.3d 594, and this court's subsequent decisions in Euclid v. Hedge, 8th Dist. Cuyahoga No. 110473, 2022-Ohio-464, and State v. Majid, 8th Dist. Cuyahoga No. 110560, 2022-Ohio-189, that both recognized the effect of Ogle. He contends that based on this authority, Harper and Henderson do not apply, his conviction is void, and the trial court erred in denying his request to vacate his conviction.

{¶ 8} We find that even if Levy were permitted to assert this challenge twenty years after his conviction, and even if he demonstrated that his constitutional right to counsel was violated, he has not established that this violation rose to the level of a plain error that this court must correct.

II. Postconviction and Void Judgment

{¶ 9} In this appeal, Levy contends that his waiver of trial counsel was invalid; and thus, his judgment of conviction is void. We construe Levy's motion to vacate a void judgment as an untimely petition for postconviction relief under R.C. 2953.21(A)(1). See State v. Reynolds, 79 Ohio St.3d 158, 679 N.E.2d 1131 (1997), at syllabus (holding that a post direct appeal seeking to vacate a conviction on constitutional grounds is treated as a petition for postconviction relief); see also State v. Ali, 8th Dist. Cuyahoga No. 110624, 2021-Ohio-4303, ¶ 10. Under R.C. 2953.21(A), a person convicted of a criminal offense may petition the court to vacate the judgment if the defendant alleges that the judgment is void or voidable. Postconviction relief is available for errors of constitutional dimension, i.e., errors that effectively deprived the trial court of jurisdiction to conviction the defendant. State v. Perry, 10 Ohio St.2d 175, 178-179, 226 N.E.2d 104 (1967).

{¶ 10} Because Levy was convicted in 2002, and this court affirmed his convictions in his direct appeal in 2004, Levy's 2021 motion is untimely. See R.C. 2953.21(A)(2) (petition for postconviction relief must be filed no later than 365 days after the date on which the trial transcript is filed in the court of appeals in a direct appeal). Moreover, Levy previously filed a petition for postconviction relief, making his current petition successive.

{¶ 11} If a petition is successive or untimely, a defendant may still seek relief pursuant to R.C. 2953.23(A) by (1) demonstrating that he was unavoidably prevented from discovering facts upon which his petition relies, or that his petition relies on the recognition of a new federal or state right recognized by the United States Supreme Court that retroactively applies to his situation; and (2) showing by clear and convincing evidence that, but for the constitutional error, no reasonable trier of fact would have found him guilty of the offense for which he was convicted.

{¶ 12} Typically, a petitioner's failure to satisfy R.C. 2953.23(A) deprives a trial court of jurisdiction to adjudicate the merits of an untimely or successive postconviction relief petition. State v. Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, 121 N.E.3d 351, ¶ 36. Moreover, a successive petition for postconviction relief is typically subject to the doctrine of res judicata.

{¶ 13} Levy does not allege or establish any of the requirements necessary to bring an untimely or successive petition for postconviction. Rather, he contends that his conviction is void because his waiver of counsel was deficient, thus depriving him of his constitutional right of counsel. The state contends that Levy's constitutional challenge would merely render his conviction voidable and thus, res judicata prevents him from this collateral attack because he could have raised the issue in a direct appeal. The state maintains that the Ohio Supreme Court's recent holdings in Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, and Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776, prevent Levy from obtaining the relief he seeks. Levy contends that Harper and Henderson do not apply because deprivation of the right to counsel as guaranteed by the Sixth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution, divests a court of jurisdiction and renders a conviction void.

{¶ 14} When the petitioner contends that the trial court lacked jurisdiction over his conviction, res judicata will not apply. A jurisdictional defect cannot be waived and may be raised at any time. State ex rel Tubbs Jones v. Suster, 84 Ohio St.3d 70, 75, 701 N.E.2d 1002 (1998); see also NDHMD, Inc. v. Cuyahoga Cty. Bd. of Revision, 8th Dist. Cuyahoga No. 98004, 2012-Ohio-5508, ¶ 8. This is because "[i]f a court acts without jurisdiction, then any proclamation by that court is void." Id., citing Patton v. Diemer, 35 Ohio St.3d 68, 518 N.E.2d 941 (1988) (courts have inherent authority to vacate their own void judgments). Accordingly, because a void judgment is a nullity, it is open to collateral attack at any time. Lingo v. State, 138 Ohio St.3d 427, 2014-Ohio-1052, 7 N.E.3d 1188, ¶ 46. Moreover, such attacks cannot be defeated by res judicata. Id. See also State v. Wilson, 73 Ohio St.3d 40, 45, 652 N.E.2d 196 (1995), fn. 6, (holding that res judicata does not bar a criminal defendant from challenging a trial court's subject matter jurisdiction in a petition for postconviction relief).

{¶ 15} In Harper and Henderson, the Supreme Court of Ohio realigned its precedent with the traditional understanding of what constitutes a void judgment. Harper at ¶ 4; Henderson at ¶ 34. The court did so to "restore predictability and finality to trial-court judgments and criminal sentences." Henderson at ¶ 33. As explained in Henderson, "[a] void judgment is rendered by a court without jurisdiction. * * * A voidable judgment is one pronounced by a court with jurisdiction." Id. at ¶ 17. If a judgment is void, "[i]t is a mere nullity and can be disregarded" and "[i]t can be attacked in collateral proceedings." Id., citing Tari v. State, 117 Ohio St. 481, 494, 159 N.E. 594 (1927).

{¶ 16} In Harper, the Supreme Court of Ohio returned to the traditional view and held that "[w]hen a case is within a court's subject-matter...

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