Toledo Legal News - 10th District rejects motion to set aside murder conviction, sentence
A Franklin County appellate panel recently affirmed a lower court's decision denying a man's motion to set aside an allegedly void murder conviction and sentence.
The 10th District Court of Appeals rejected Marcus White's claim that the judgment convicting him of felonious assault and murder was void and held the motion to set aside that judgment was properly interpreted as an untimely petition for post-conviction relief.
White was first indicted in October 2003 for one count of aggravated murder and one count of attempted murder.
A jury in the Franklin County Court of Common Pleas, however, found him not guilty of both counts but guilty of lesser-included offenses of murder and felonious assault.
The common pleas court sentenced him accordingly in August 2005 and White appealed.
The 10th District found the trial court erred by imposing a non-minimum term for White's felonious assault conviction and remanded for a new sentencing hearing.
The trial court entered a new sentence in October 2006 and the 10th District affirmed the judgment and sentence on appeal.
In September 2012, White filed a motion to vacate and set aside his judgment of conviction and sentence.
In the action, White claimed that the judgment was void.
The common pleas court treated the motion as a petition for post-conviction relief and denied it as untimely and barred by res judicata.
White appealed the ruling to the 10th District and claimed the trial court abused its discretion and "simply ignored its duty" by denying the motion.
"Under his single assignment of error, appellant argues that his judgment of conviction is void on the basis that, during his jury trial, the trial court, in instructing the jury as to the offense of murder, erred in failing to give instructions on voluntary manslaughter and involuntary manslaughter," 10th District Judge Susan Brown wrote for the court.
The three-judge appellate panel found the judgment of conviction was not void and held that, on that basis, the trial court properly interpreted White's motion as a petition for post-conviction relief.
In regard to instructions on manslaughter, the trial court found White was not eligible for such instructions.
"First, the defendant requested and was granted a self defense instruction as to aggravated murder in count one of the indictment. The defendant cannot have it both ways. Either he intentionally shot the victim in self defense or he acted in the heat of passion as a result of provocation. The two are mutually exclusive," the trial court wrote in its entry denying his motion.
The appellate panel found no error in the common pleas court's analysis and further held that it had previously addressed the issue of manslaughter on appeal.
It maintained that a petition for post-conviction relief may be dismissed when its claims were raised or could have been raised on direct appeal.
"In the present case, the claims raised by appellant could have been raised on direct appeal and were, in fact, raised and rejected by this court in appellant's application to reopen his appeal. Here, the trial court did not err in concluding that appellant's petition was untimely and that it was barred under the doctrine of res judicata," Brown stated.
Tenth District judges Lisa Sadler and John Connor joined Brown to affirm the common pleas court's ruling.
The case is cited State v. White, case No. 2013-Ohio-2217.