Opinion
No. 109047
04-23-2020
STATE OF OHIO, Plaintiff-Appellee, v. TRACEE STEELE, Defendant-Appellant.
Appearances: Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Frank Romeo Zeleznikar, Assistant Prosecuting Attorney, for appellee. Tracee Steele, pro se.
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-06-489173-A
Appearances:
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Frank Romeo Zeleznikar, Assistant Prosecuting Attorney, for appellee. Tracee Steele, pro se. SEAN C. GALLAGHER, P.J.:
{¶ 1} Tracee Steele appeals the denial of his motion to vacate a void judgment. Steele claims that his convictions are void because the state had dismissed an earlier case advancing the same claims upon which his convictions arise. Finding no merit to the appeal, we affirm.
{¶ 2} In January 2007, Steele was sentenced to an aggregate 15-year prison term after pleading guilty to five counts of gross sexual imposition in violation of R.C. 2907.05(A)(4). Steele has spent the last 13 years challenging his conviction through various post-dispositive mechanisms. He has filed the following: a postsentence motion to withdraw his guilty plea; a motion to correct improper consecutive sentences; a "motion for judgment upon the pleadings," in which Steele asserted that "the Constitutional dimensions of the Status Quo are in danger"; a "notice of action for procedendo," in which he sought a ruling on the motion for judgment on the pleadings"; a motion to dismiss for failure to provide right to speedy trial (the denial of which Steele appealed in State v. Steele, 8th Dist. Cuyahoga No. 100289, 2014-Ohio-1085); and a motion to correct a void judgment and sentences, from which Steele filed an untimely appeal that was dismissed for the want of jurisdiction in State v. Steele, 8th Dist. Cuyahoga No. 108366 (Apr. 10, 2019).
{¶ 3} Following the dismissal of his appeal in 8th District Cuyahoga No. 108366, Steele filed a second motion to correct a void judgment, in which Steele asserted that his convictions in the underlying case, Cuyahoga C.P. No. CR-489173-A, violated double jeopardy protections based on the improper dismissal of an earlier case, Cuyahoga C.P. No. CR-484795-A, in which similar allegations were advanced. Steele's argument is a two-step process. He first claims that the dismissal of the indictment in case No. CR-484795-A was in error and is, therefore, void. It is Steele's belief that by declaring the dismissal of case No. CR-484795-A void, that case would be reactivated and his convictions in the underlying case, No. CR-489173-A, would then violate the protections afforded by the Double Jeopardy Clause. The trial court summarily denied the motion, and Steele timely appealed.
{¶ 4} The initial question that must be addressed is whether the trial court possessed continuing jurisdiction to consider the merits of Steele's claims. Steele had two options to invoke the trial court's continuing jurisdiction: file a motion to vacate a void conviction, or file a successive or delayed petition for postconviction relief. In this case, Steele is claiming his convictions are void, but we briefly note that R.C. 2953.23 permits a successive petition for postconviction relief only (1) if the defendant was unavoidably prevented from discovering facts upon which the petition must rely, or (2) if the "United States Supreme Court recognized a new federal or state right that applies retroactively." R.C. 2953.23(A)(1)(a). Neither exception applies in this case irrespective of whether Steele could demonstrate that but for constitutional error at trial, no reasonable factfinder would have found him guilty. R.C. 2953.23(A)(1)(b). Thus, Steele's only avenue for relief was based upon a claim that his convictions are void, as Steele framed the issue.
{¶ 5} On this point, Steele claims that his convictions are void because the trial court improperly dismissed the indictment in case No. CR-484795-A, and therefore, the trial court lacked jurisdiction to accept his guilty plea and impose sentences upon the subsequent indictment in case No. CR-489173-A. We need not consider the implications of the allegedly improper dismissal of a preceding indictment on the resulting convictions in the subsequent case.
{¶ 6} Steele has unsuccessfully raised these concerns in another proceeding, and that fact necessarily impacts our review. In State ex rel. Steele v. McClelland, 154 Ohio St.3d 574, 2018-Ohio-4011, 116 N.E.3d 1267, Steele filed a petition for writs of mandamus and prohibition in this district, State ex rel. Steele v. McClelland, 8th Dist. Cuyahoga No. 105893, 2017-Ohio-8233, in part arguing that the trial court erred in granting the state's motion to dismiss the indictment in case No. CR-484795-A. Id. at ¶ 3. Through that original action, "Steele sought an order compelling [the trial court] to vacate as void the December 2006 journal entry dismissing the first indictment [in case No. CR-484795-A] and to place the parties in the same position they were in before the void judgment was entered." Id. In overruling Steele's argument, the Ohio Supreme Court concluded that "the record does not demonstrate that the trial court's decision granting the state's motion to dismiss [in case No. CR-484795-A] was made in error" and the state had demonstrated "good cause" to seek dismissal of the first indictment when the second indictment was being sought. Id. at ¶ 6.
{¶ 7} As a result, the Ohio Supreme Court affirmed the panel decision in which it was concluded that not only had the trial court properly dismissed the first action, but also that Steele had an adequate remedy in the ordinary course of law through a direct appeal of his criminal conviction. Id. at ¶ 4.
{¶ 8} Insofar as Steele claims that the trial court's dismissal of the case No. CR-484795-A action was in error and void, the first step in Steele's attempt to demonstrate that his conviction in the underlying case violated his constitutional rights, we overrule the argument. Id. Because we cannot conclude that the dismissal was improper in light of the Ohio Supreme Court's decision to the contrary, we need not consider the implications of the dismissed action on Steele's convictions in the underlying case, No. CR-489173-A. For our purposes, it has been conclusively determined that the first action was properly dismissed and it is undisputed that pursuing a prosecution following the dismissal of a previous indictment does not violate double jeopardy protections, even if such an argument could render his convictions void. State v. Soto, 158 Ohio St.3d 44, 2019-Ohio-4430, 139 N.E.3d 889, ¶ 13 (by its "plain terms," the Double Jeopardy Clause does not apply to dismissals and does not preclude a subsequent prosecution for charges that were earlier dismissed). Any arguments to the contrary are overruled.
{¶ 9} We affirm.
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 issue out of this court directing the common pleas 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. /s/_________
SEAN C. GALLAGHER, PRESIDING JUDGE LARRY A. JONES, SR., J., and
MICHELLE J. SHEEHAN, J., CONCUR