[Cite as State v. Peterson,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 112055 v. :

DAMIEN L. PETERSON, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: March 16, 2023

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-19-639520-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Frank Romeo Zeleznikar, for appellant.

Damien L. Peterson, pro se.

LISA B. FORBES, J.:

In this accelerated appeal, Damien L. Peterson (“Peterson”), acting

pro se, appeals from the trial court’s journal entry denying his motion to vacate void

judgment. After reviewing the facts of the case and pertinent law, we affirm the

lower court’s judgment. I. Facts and Procedural History

In October 2019, Peterson was found guilty of multiple felonies

related to a string of armed robberies he committed in spring of 2019. In November

2019, the court sentenced Peterson to 39 to 40.5 years in prison. Peterson filed a

direct appeal, and on March 17, 2022, this court affirmed his convictions and

sentence in State v. Peterson, 8th Dist. Cuyahoga No. 109306,

(“Peterson I”). Peterson filed an application for reopening this appeal, pursuant to

App.R. 26(B), and on August 10, 2022, this court denied Peterson’s request, finding

that the “doctrine of res judicata prevents further review of the issues [raised]

because [they] have already been addressed by this court on direct appeal and found

to be without merit.” State v. Peterson, 8th Dist. Cuyahoga No. 109306, 2022-Ohio-

2766, ¶ 6 (“Peterson II”).

While Peterson’s application for reopening was pending in this court,

he filed a motion to vacate void judgment in the trial court. This motion was denied

on September 16, 2022. It is from this order that Peterson appeals raising one

assignment of error for our review:

The trial court abused its discretion when it denied [Peterson’s] motion to vacate void judgment and sentence due to the Shaker Heights Municipal Court’s failure to relinquish subject matter jurisdiction of the case over to the Cuyahoga County Court of Common Pleas in Case No. CR-19-639520-A, filed on July 22, 2022. II. Law and Analysis

A. Pro Se Litigants

The Ohio Supreme Court has “repeatedly declared that ‘pro se

litigants * * * must follow the same procedures as litigants represented by counsel.’

State ex rel. Gessner v. Vore,

,

,

.” State ex rel. Neil v. French,

,

,

. Furthermore, Ohio courts have consistently held that pro se litigants “are

presumed to have knowledge of the law and legal procedure and * * * they are held

to the same standard as litigants who are represented by counsel.” Sabouri v. Ohio

Dept. of Job & Family Servs.,

,

(10th

Dist. 2001).

B. Standard of Review — Postconviction-Relief Petition

Prior to reviewing Peterson’s assignment of error, we note that “a

motion to vacate a void judgment is treated as a petition for postconviction relief

under R.C. 2953.21(A)(1) because it (1) is filed subsequent to a direct appeal, (2)

claim[s] a denial of constitutional rights, (3) seeks to render the judgment void, and

(4) asks for a vacation of the judgment and sentence.” State v. Lawrence, 8th Dist.

Cuyahoga No. 109951,

. Therefore, we construe Peterson’s

motion to vacate void judgment as a postconviction-relief petition.

Appellate courts review a trial court’s ruling on a petition for

postconviction relief under an abuse of discretion standard. State v. Watts, 8th Dist.

Cuyahoga No. 108296,

, ¶ 11. See also State v. Gondor,

,

,

(holding that “a trial court’s

decision granting or denying a postconviction petition filed pursuant to R.C. 2953.21

should be upheld absent an abuse of discretion; a reviewing court should not

overrule the trial court’s finding on a petition for postconviction relief that is

supported by competent and credible evidence”).

C. Postconviction Relief and Res Judicata

A postconviction proceeding is not an appeal of a criminal conviction.

Rather, it is a collateral civil attack on the judgment. State v. Steffen,

,

(1994). R.C. 2953.21 allows defendants who have been convicted

of criminal offenses to file petitions for postconviction relief, “asking the court to

vacate or set aside the judgment or sentence * * *.” Petitioners must state “all

grounds for relief” upon which they rely, and they waive all other grounds not so

stated. R.C. 2953.21(A)(4).

However, a “petition for postconviction relief is not the proper vehicle

to raise issues that were or could have been determined on direct appeal.” State v.

Hale, 8th Dist. Cuyahoga No. 103654,

, citing State v. Perry,

,

(1967). See also State v. Montgomery, 8th Dist.

Cuyahoga No. 99452,

(“The usual formulation of res judicata

in postconviction proceedings is that it bars the assertion of claims against a valid,

final judgment of conviction that have been raised or could have been raised on

appeal.”). D. Analysis

In Peterson’s sole assignment of error in the case at hand, he argues

that his convictions and sentence should be vacated “because the Shaker Heights

Municipal Court never issued a bind over order relinquishing subject matter

jurisdiction of the case over to the Cuyahoga County Court of Common Pleas.”

Peterson claims that his due process rights were violated as a result.

In Peterson’s motion to vacate void judgment, the trial court’s denial

of which forms the basis for the case at hand, Peterson argued that his convictions

and sentence are void “due to the Shaker Heights Municipal Court’s failure to

relinquish jurisdiction to the Cuyahoga County Court of Common Pleas.” Peterson

further argued that he “never received his entitled preliminary hearing, nor did he

waive said preliminary hearing, for was [he] directly indicted on the charge in the

Shaker Heights Municipal Court * * *.”

This argument was reviewed and rejected on the merits by this court

in Peterson I. The third assignment of error in Peterson I follows: “Defendant was

denied due process of law by way of a defective complaint and failure of the

government to provide a preliminary hearing within the statutory timeframe and

prior to the indictment.” Peterson I at ¶ 7. Specifically, Peterson argued that “the

criminal complaint filed in the Shaker Heights Municipal Court was defective and

* * * he was improperly denied a preliminary hearing.” Id. at ¶ 21. In Peterson I,

this court found that argument to be without merit, because (1) the Shaker Heights

Municipal Court proceedings were not part of the case at issue, and (2) the indictment filed in the Cuyahoga County Court of Common Pleas case at issue

rendered any defects in the initial complaint moot. Id. at ¶ 21, 22. See also

Crim.R. 5(B)(1) (stating that the preliminary hearing in felony cases “shall not be

held * * * if the defendant is indicted”).

Additionally, this court determined that res judicata barred Peterson

from raising this same argument again in Peterson II. This court opined that the

“issues raised by Peterson * * * basically involve * * * a defective preliminary hearing

in the Shaker Heights Municipal Court and a lack of jurisdiction on the part of the

Cuyahoga County Common Pleas Court to indict, bring to trial, and convict him of

the offenses” concerning his armed robbery spree. Peterson II at ¶ 5. This court

held that the “doctrine of res judicata prevents further review of the issues relating

to a preliminary hearing in the Shaker Heights Municipal Court because the issues

have already been addressed by this court on direct appeal and found to be without

merit.”

Because Peterson did not raise any issues in his postconviction

motion to vacate judgment that had not been addressed in Peterson I and Peterson

II, his argument is barred by the doctrine of res judicata. Accordingly, Peterson’s

sole assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate be sent to said court to carry this judgment

into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

LISA B. FORBES, JUDGE

ANITA LASTER MAYS, A.J., and EMANUELLA D. GROVES, J., CONCUR