The opinion
[Cite as State v. Hamblin, 2022-Ohio-516.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ADAMS COUNTY
STATE OF OHIO, :
: Case No. 21CA1136
Plaintiff-Appellee, :
:
v. : DECISION AND JUDGMENT
: ENTRY
JEFFREY HAMBLIN, :
:
Defendants-Appellant. :
APPEARANCES:
Jeffery Hamblin, Marion, Ohio, Appellant Pro Se.
C. David Kelley, Adams County Prosecuting Attorney, Mark R. Weaver and Ryan
M. Stubenrauch, Assistant Prosecuting Attorneys, West Union, Ohio, for Appellee.
Smith, P.J.
{¶1} Jeffrey Hamblin appeals the March 23, 2021 “Entry Denying
Defendant’s Motion to Vacate Void Judgment” of the Adams County Court of
Common Pleas. In 2005, Hamblin pled guilty to amended charges of murder with
a firearm specification and tampering with evidence. In 2006, we found merit to
the sole assigned error in his direct appeal and reversed the judgment of the trial
court for resentencing, solely on the issue of financial sanctions. In his current
appeal, Hamblin asserts the trial court erred when it accepted a negotiated plea
Adams App. No. 21CA1136 2
agreement which did not comport with statute, and also erred when the court held a
resentencing hearing in his absence.
{¶2} Because we have characterized Hamblin’s underlying motion as an
untimely-filed petition for postconviction relief, we conclude the trial court lacked
jurisdiction to entertain his constitutional claims raised in the petition and should
not have addressed them on the merits. Thus, these claims should have been
dismissed. Further, because the non-constitutional claims are barred by res
judicata and were further waived by Hamblin’s guilty pleas, we affirm the trial
court’s denial of these claims.
{¶3} Thus, the judgment of the trial court is affirmed as to the non-
constitutional claims; but the judgment is modified as to the constitutional claims
in order to reflect that they should have been dismissed for lack of jurisdiction.
See State v. Bear, 4th Dist. Gallia No. at fn1. Accordingly, the judgment of the
trial court is affirmed as modified.
FACTUAL AND PROCEDURAL BACKGROUND
{¶4} The brief facts summarizing the underlying trial court case were
previously set forth in State v. Hamblin, 4th Dist. Adams No. 05CA816, 2006-
Ohio-3207, at paragraphs one and two. We utilize them here as well. Hamblin
initially faced charges of aggravated murder with a firearm specification and
tampering with evidence. He pled guilty to the amended charges of murder with a
Adams App. No. 21CA1136 3
firearm specification and tampering with evidence. The trial court sentenced
Hamblin to 15 years to life for the murder, with three years for the firearm
specification to be served consecutively, and five years for tampering with
evidence to be served concurrently. As part of the sentence, the court also imposed
financial sanctions on Hamblin for restitution, court costs, and fees under R.C.
2929.18(A)(4).
{¶5} Hamblin filed a direct appeal regarding the financial sanctions,
arguing the trial court failed to first consider his present and future ability to pay
prior to imposition of the sanctions. In our decision, we found error because the
court failed to consider Hamblin's ability to pay financial sanctions as required
under R.C. 2929.19(B)(6). Accordingly, we reversed the matter for resentencing
solely on the issue of sanctions.
{¶6} On September 8, 2006, the trial court conducted a resentencing hearing
on the matter. On October 18, 2006, the trial court filed a judgment entry on
resentencing. The trial court found Hamblin did have the ability to pay the
previously ordered restitution.
{¶7} On January 31, 2020, Hamblin filed a motion to vacate void judgment.
Therein, Hamblin requested a resentencing hearing because the trial court failed to
comply with statutory sentencing requirements, causing his sentence to be contrary
to law. Hamblin pointed out that the trial court sentenced him to post-release
Adams App. No. 21CA1136 4
control (PRC) when, as he stood convicted of unclassified felony murder, he was
subject to parole under R.C. 2967.13. He also asserted that his trial counsel
rendered ineffective assistance when counsel failed to object to the erroneous
imposition of PRC. Consequently, he argued that his appellate counsel was
ineffective for failing to raise the issue in Hamblin’s direct appeal.
{¶8} On April 3, 2020, the State of Ohio filed its response. On May 18,
2020, Hamblin filed a reply to the State’s response. On March 23, 2021, the trial
court filed both a corrected judgment entry on sentencing and an entry denying
defendant’s motion to vacate void judgment. This appeal followed.
ASSIGNMENTS OF ERROR1
I. THE TRIAL COURT ABUSED ITS DISCRETION
BECAUSE IT DID NOT HAVE AUTHORITY TO USE
R.C. 2929.191 AND R.C. 2967.28 TO REMOVE A PRC
SANCTION AND ISSUE A CORRECTED MOTION,
THE TRIAL COURT STATED, IN PART, IN
PARAGRAPH ONE, “PURSUANT TO THIS
COURTS’ AUTHORITY, R.C. 2929.191, AND R.C.
2967.28, THE COURT HAS ISSUED A CORRECTED
JUDGMENT ENTRY ON SENTENCING…”
II. THE TRIAL COURT ABUSED ITS DISCRETION
WHEN, DURING THE ORIGINAL PLEA HEARING
AND AGAIN DURING THE SENTENCING
HEARING, THE TRIAL COURT ACCEPTED THE
NEGOTIATED PLEA AGREEMENT THAT DID NOT
COMPORT WITH STATUTE.
1
The assignments of error are set forth exactly as they appeared in Appellant’s brief.
Adams App. No. 21CA1136 5
III. THE TRIAL COURT VIOLATED DEFENDANTS
RIGHT TO DUE PROCESS BY AMENDING
ORIGINAL SENTENCING ENTRY WITHOUT
HOLDING RE-SENTENCING HEARING.
R.C.2929.19 GIVES DEFENDANT THE RIGH TO
PRESENT EVIDENCE IN MITIGATION PRIOR TO
THE IMPOSITION OF SENTENCE.
IV. APPELLATE COUNSEL WAS INEFFECTIVE IN
FAILING TO TAKE ACCOUNT OF THE TRIAL
COURTS ERROR IN ACCEPTING DEFENDANT’S
GUILTY PLEA IN VIOLATION OF CRIM.R. 11
BECAUSE THE ERRONEOUSLY IMPOSED PRC
FOR THE UNCLASSIFIED FELONY
UNDERSTATED THE DEFENDANTS
UNDERSTANDING OF THE MAXIMUM PENALTY
HE FACE. AS WELL AS FAILING TO APPEAL THE
TRIAL COURT’S IMPOSITION OF A “STATED
PRISON TERM OF (15) YEARS TO LIFE” TO
WHICH THE TRIAL COURT AGREED TO FROM
THE WRITTEN PLEA WAIVER AND THEN
SENTENCED THE DEFENDANT TO, MAKING THE
PENALTY FOR THE UNCLASSIFIED FELONY FIT
THE STATUTE. R.C. 2967.28.
V. THE TRIAL COURT VIOLATED DEFENDANT’S
RIGHT TO DUE PROCESS, UNDER THE FIFTH AND
FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION AND OF THE
CONSTITUTION OF THE STATE OF OHIO, WHEN
R.C.2929.191 WAS USED TO REMOVE AN
ERRONEOUS R.C. 2967.28 POST-RELEASE
CONTROL SANCTION WHEN NO AUTHORITY
EXISTS WITHIN THAT STATUTE FOR SUCH
JUDICIAL ACTION. AS WELL AS THE VIOLATION
OF CRIM.R. 11.
Adams App. No. 21CA1136 6
A. STANDARD OF REVIEW
{¶9} A trial court's decision granting or denying a postconviction petition
filed pursuant to R.C. 2953.21 is reviewed for an abuse of discretion and a
reviewing court should not overrule the trial court's finding on a petition for
postconviction relief that is supported by competent, credible evidence. See State
v. Bear, 4th Dist. Gallia No. 20CA9, 2021-Ohio-1539, at ¶ 13; State v. Bennington,
4th Dist. Adams No. 12CA956, 2013-Ohio-3772, ¶ 8, citing State v. Gondor, 112
Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 45. The term “abuse of
discretion” connotes more than an error of judgment; it implies the court's attitude
is unreasonable, arbitrary, or unconscionable. Id., citing State v. Adams, 623 Ohio
St.2d 151, 157, 404 N.E.2d 144 (1980).
B. LEGAL ANALYSIS
1. Characterization of Hamblin’s Irregular Motion.
{¶10} In order to review the denial of Hamblin’s “Motion to Vacate or Set
Aside Judgment,” we must first determine how to characterize the motion. See
State v. Bear, supra, at ¶ 8; State v. Brown, 4th Dist. Scioto No. 16CA3770, 2017-
Ohio-4063, ¶ 18. As explained in Brown, “ ‘ “[c]ourts may recast irregular
motions into whatever category necessary to identify and establish the criteria by
which the motion should be judged.” ’ ” Id., quoting State v. Burkes, 4th Dist.
Adams App. No. 21CA1136 7
Scioto No. 13CA3582, 2014-Ohio-3311, ¶ 11, in turn quoting State v. Schlee, 117
Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12.
{¶11} The Supreme Court of Ohio has held as follows regarding when
irregular motions may meet the definition of petitions for postconviction relief:
“ ‘[w]here a criminal defendant, subsequent to his or her direct appeal, files a
motion seeking vacation or correction of his or her sentence on the basis that his or
her constitutional rights have been violated, such a motion is a petition for
postconviction relief as defined in R.C. 2953.21.’ ” Brown at ¶ 19, quoting State v.
Reynolds, 79 Ohio St.3d 158, 679 N.E.2d 1131, syllabus (1997).
{¶12} Thus, an irregular motion may meet the definition of a petition for
postconviction relief set forth in R.C. 2953.21(A)(1) if the motion was “ ‘(1) filed
subsequent to [defendant's] direct appeal, (2) claimed a denial of constitutional
rights, (3) sought to render the judgment void, and (4) asked for vacation of the
judgment and sentence.’ ” Brown at ¶ 19, quoting State v. Reynolds at 160.
{¶13} “ ‘[P]ostconviction relief petitions are used to assert claims that there
was a denial or infringement of the person's rights as to render the judgment void
or voidable under the Ohio or United States Constitutions.’ ” Brown at ¶ 20,
quoting State v. Kelly, 4th Dist. Scioto No. 14CA3637, 2014-Ohio-5840, ¶ 4. “ ‘It
is a means to resolve constitutional claims that cannot be addressed on direct
appeal because the evidence supporting the claims is not contained in the record.’ ”
Adams App. No. 21CA1136 8
Brown at ¶ 20, quoting Kelly at ¶ 5, citing State v. Shaffer, 4th Dist. Lawrence No.
14CA15, 2014-Ohio-4976, ¶ 9; State v. Knauff, 4th Dist. Adams No. 13CA976,
2014-Ohio-308, ¶ 18.
{¶14} Here, constitutional claims set forth in Hamblin’s “Motion To Vacate
Void Judgment” cause his motion to meet the definition of a petition for
postconviction relief pursuant to R.C. 2953.21. Additionally, Hamblin sought to
render the judgment void.
2. Timeliness
{¶15} Initially, we note that limitations exist with respect to the filing of a
postconviction relief petition. See Bear, supra, at ¶ 14. A petition for
postconviction relief is subject to strict filing requirements. Pursuant to R.C.
2953.21(A)(2), the time for filing a petition for postconviction relief is: (1) 365
days from the date on which the trial transcript was filed in the court of appeals in
the direct appeal of the judgment of conviction, or (2) 365 days after the expiration
of the time for filing the notice of appeal, if no direct appeal is taken.
{¶16} If a defendant fails to file his petition within the prescribed period, the
trial court may entertain the petition only if: (1) the petitioner shows either that he
was unavoidably prevented from discovery of the facts upon which he must rely to
present the claim for relief or that the United States Supreme Court recognized a
new federal or state right that applies retroactively to him; and (2) the petitioner
Adams App. No. 21CA1136 9
shows by clear and convincing evidence that no reasonable factfinder would have
found him guilty but for constitutional error at trial. See R.C. 2953.23(A)(1); see
also Bear, supra, at ¶ 15; State v. McManaway, 4th Dist. Hocking No. 16CA8,
2016-Ohio-7470, ¶ 13-16 (trial court lacks jurisdiction to entertain an untimely
petition for postconviction relief unless the untimeliness is excused by statute).
{¶17} It is obvious that Hamblin has filed an untimely petition for
postconviction relief. Hamblin filed a direct appeal which we found to have merit.
We rendered our decision on the direct appeal in 2006. As noted above, Hamblin
had 365 days from the date on which the trial transcript was filed in the court of
appeals in his direct appeal. R.C. 2953.21(A)(2)(1). Hamblin filed his petition for
postconviction relief on January 31, 2020. Thus, it is obviously well beyond the
time limit.
{¶18} Furthermore, Hamblin has failed to argue and establish the
applicability of either exception set forth in R.C. 2953.23(A). Thus, we find that
the trial court lacked jurisdiction to entertain Hamblin’s motion. Brown at ¶ 25.
However, even if the trial court had not lacked jurisdiction to entertain Hamblin’s
motion, we would find no merit to the issues raised in each assignment of error.
3. Assignments of Error 1,2, 3, and 5 are Barred by Res Judicata.
{¶19} In addition to dismissing a petition as being untimely, a trial court
Adams App. No. 21CA1136 10
may also dismiss a petition when the claims are barred by the doctrine of res
judicata. See Bear, supra, at ¶ 16; State v. Boler, 4th Dist. Athens No. 18CA2,
2018-Ohio-3722, ¶ 19, citing State v. Szefcyk, 77 Ohio St.3d 93, 671 N.E.2d 233,
syllabus (1996). The doctrine of res judicata is applicable in all postconviction
relief proceedings and provides that: “a final judgment of conviction bars a
convicted defendant who was represented by counsel from raising and litigating in
any proceeding, except an appeal from that judgment, any defense or any claimed
lack of due process that was raised or could have been raised by the defendant at
the trial, which resulted in that judgment of conviction, or on an appeal from that
judgment.” Bear, supra; Boler at ¶ 19, quoting Szefcyk at 95.
{¶20} Hamblin asserts the trial court’s judgment denying his motion to
vacate is void. The determination of whether a judgment is void is a question of
law. See State v. Cave, 4th Dist. Scioto No. 20CA3921, at ¶ 5; State v. J.M., 148
Ohio St.3d 113, 2016-Ohio-2803, 69 N.E.3d 642, ¶ 9, citing Ceccarelli v. Levin,
127 Ohio St.3d 231, 2010-Ohio-5681, 938 N.E.2d 342, ¶ 8; State v. McNamara,
4th Dist. Pickaway No. 17CA13, 2018-Ohio-2880 at ¶ 4; Blaine v. Blaine, 4th Dist.
Jackson No. 10CA15, 2011-Ohio-1654.
{¶21} In State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d
248, the Supreme Court of Ohio recently “realign[ed]” its void-sentence
jurisprudence and returned to “the traditional understanding of what constitutes a
Adams App. No. 21CA1136 11
void judgment.” Id. at ¶ 4. The court stated that “[a] sentence is void when a
sentencing court lacks jurisdiction over the subject matter of the case or personal
jurisdiction over the accused.” Id. at ¶ 42. When a sentencing court has
jurisdiction to act, sentencing errors render the sentence “voidable, not void, and
[the sentence] is not subject to collateral attack.” Id. at ¶ 5. “[I]f a judgment is
voidable, the doctrine of res judicata bars a party from raising and litigating in any
proceeding, except a direct appeal, claims that could have been raised in the trial
court.” State v. Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784, ¶ 19, 162
N.E.3d 776, citing State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967),
paragraph nine of the syllabus. See generally, Cave, supra, at ¶¶ 9-12; State ex rel.
Davis v. Turner, 164 Ohio St. 3d 395, 2021-Ohio-1771, 172 N.E.3d 1026, at ¶ 10;
State v. Rogers, 8th Dist. Cuyahoga No. 109805, 2021-Ohio-2262, at ¶¶ 12-16;
State v. Little, 9th Dist. Lorain No. 20CA011662, 2021-Ohio-1446, at ¶¶ 10-11;
State v. Robinson, 10th Dist. Franklin No. 20AP-562, 2021-Ohio-2572, at ¶¶ 9-11;
State v. Gross, 11th Dist. Lake No. 2021-L-042, 2021-Ohio-3289, at ¶¶ 21-24.
{¶23} In the present case, the trial court had subject-matter jurisdiction over
Hamblin’s case and personal jurisdiction over Hamblin. See Harper at ¶ 25,
quoting Smith v. Sheldon, 157 Ohio St.3d 1, 2019-Ohio-1677, ¶ 8, 131 N.E.3d 1
(stating that “ ‘a common pleas court has subject-matter jurisdiction over felony
cases’ ”); Henderson at ¶ 36, citing Tari v. State, 117 Ohio St. 481, 490, 159 N.E.
Adams App. No. 21CA1136 12
594 (1927) (noting that “[i]n a criminal matter, the court acquires jurisdiction over
a person by lawfully issued process, followed by the arrest and arraignment of the
accused and his plea to the charge”). As such, any error in the exercise of the trial
court's jurisdiction rendered appellant's sentence voidable, not void. State v.
Thompson, 10th Dist. No. 19AP-359, 2020-Ohio-6756, ¶ 12.
{¶24} The procedural facts in Hamblin’s case are similar to those presented
in Little, supra. Little was convicted of aggravated murder and additional offenses
in 2009. Little filed various appeals. In July 2020, Little filed a pro se “Motion to
Correct Void Sentence; Failure to Properly Impose Post-Release Control Pursuant
to R.C. 2929.191” with the trial court. The trial court denied the motion. The
court explained that while the initial advisal was improper in 2009, the mistake had
been corrected at a 2010 resentencing hearing. The court also filed a nunc pro tunc
journal entry to record the correction of the judgment of conviction, in accordance
with R.C. 2929.191.
{¶25} In Little’s appeal from the trial court’s denying his motion to correct a
void sentence, Little argued that the trial court failed to track the statutory language
set forth in R.C. 2967.28 to properly impose PRC. He also argued that the trial
court’s entry did not comply with Crim.R. 32(C). As here, the appellate court
found Appellant’s irregular motion to be an untimely petition for postconviction
relief. Furthermore, his claim that his sentence was void did not change the result.
Adams App. No. 21CA1136 13
The appellate court characterized his argument as asserting his sentence was
voidable, not void.
{¶26} Importantly, the appellate court found that assuming for argument that
the trial court had authority to entertain Little’s petition, his claims would be
barred by the doctrine of res judicata because Little’s argument that the trial court
failed to properly impose PRC should have been made in his direct appeal.
Consequently, it was subject to res judicata. Little, supra, at ¶ 11; Harper, supra,
at ¶ 43.
{¶27} Based on the foregoing, in addition to Hamblin’s motion being barred
from consideration as untimely, the arguments made in Assignments of Error 1, 2,
3 and 5 are also barred by res judicata.
4. Assignment of Error 4 is Improperly Presented Herein.
{¶28} Finally, Hamblin also argues that his appellate counsel was
ineffective for failing to notice that the trial court erred in accepting his guilty pleas
in violation of Crim.R. 11, and by failing to raise this argument in the direct
appeal. We previously considered similar arguments in State v. Hamilton, 4th Dist.
Hocking No. 05CA4, 2005-Ohio-5450. There, we found that the trial court’s
misstatements regarding parole eligibility and PRC did not render the defendant’s
guilty plea invalid. We also found the defendant was not denied the effective
Adams App. No. 21CA1136 14
assistance of counsel where defendant failed to demonstrate that he would not have
pled guilty if counsel had objected to the court’s misstatements.
{¶29} However, we need not consider Hamblin’s argument that his appellate
counsel should have appealed the trial court’s decision to impose PRC for the
unclassified felony at the time of the direct appeal because it is not properly before
us in the context of the appeal of a denial of a postconviction motion. The proper
vehicle to raise the issue of ineffective assistance of appellate counsel is through an
application to reopen the appeal made pursuant to App.R. 26(B). See State v.
Casey, 2018-Ohio-2084, 113 N.E.3d 959, at ¶ 45 (12th Dist.); State v. Teets, 4th
Dist. Pickaway No. 15CA31, 2016-Ohio-7274, at ¶ 16. Therefore, we decline to
consider Appellant’s fourth assignment of error.
5. Conclusion.
{¶30} For the reasons set forth above, Hamblin’s arguments fail. Having
found that his constitutional claims were brought as part of an untimely filed
petition for postconviction relief, they are time-barred and further barred by the
doctrine of res judicata. As such, the trial court lacked jurisdiction to consider
these claims. Rather than denying these claims, the trial court should have
dismissed them. Therefore, under the authority of App.R. 12(A)(1)(a), the
judgment of the trial court is modified to reflect dismissal of Hamblin’s
constitutional claims. The rest of the trial court’s judgment shall remain intact
Adams App. No. 21CA1136 15
with respect to the non-constitutional claims which we have determined to be
barred by res judicata. Accordingly, we affirm the judgment of the trial court
with the modification. See Bear, supra, at ¶ 41.
JUDGMENT AFFIRMED AS MODIFIED.
Adams App. No. 21CA1136 16
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED AS MODIFIED.
Appellee shall recover any costs from Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Adams County Common Pleas Court, to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON
BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR
THIS COURT, it is temporarily continued for a period not to exceed 60 days upon
the bail previously posted. The purpose of a continued stay is to allow Appellant
to file with the Supreme Court of Ohio an application for a stay during the
pendency of proceedings in that court. If a stay is continued by this entry, it will
terminate at the earlier of the expiration of the 60-day period, or the failure of the
Appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-day
appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal
prior to expiration of 60 days, the stay will terminate as of the date of such
dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Abele, J. and Wilkin, J. concur in Judgment and Opinion.
For the Court,
_______________________________
Jason P. Smith
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.