State v. Harvey

[Cite as State v. Harvey, 2026-Ohio-3301.] IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY STATE OF OHIO, CASE NO. 2026-T-0013 Plaintiff-Appellee, Criminal Appeal from the - vs - Court of Common Pleas DOMINIC MICHAEL HARVEY, Trial Court No. 2022 CR 00582 Defendant-Appellant. OPINION AND JUDGMENT ENTRY Decided: August 24, 2026 Judgment: Affirmed Dennis Watkins, Trumbull County Prosecutor, and Charles L. Morrow, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 44481 (For Plaintiff-Appellee). Dominic Michael Harvey, pro se, PID# A810-099, London Correctional Institution, P.O. Box 69, 1580 State Route 56, London, OH 43140 (Defendant-Appellant). ROBERT J. PATTON, J. {¶1} Defendant-appellant, Dominic Michael Harvey (“Harvey”), appeals the decision of the Trumbull County Court of Common Pleas denying his successive postconviction petition without issuing findings of fact and conclusions of law. For the following reasons, we affirm the trial court’s decision. {¶2} Upon review, we conclude that the trial court was without jurisdiction to consider Harvey’s successive postconviction petition as Harvey failed to satisfy R.C. 2953.23(A). As such, the trial court did not err or otherwise abuse its discretion by denying Harvey’s petition for postconviction relief without issuing finds of fact and conclusions of law. Additionally, the claims raised in Harvey’s petition were barred by the doctrine of res judicata. {¶3} Accordingly, the judgment of the Trumbull County Court of Common Pleas is affirmed. Substantive and Procedural Facts {¶4} On July 27, 2022, a Trumbull County Grand Jury, in a four-count indictment, charged Harvey with aggravated murder with an aggravating circumstances specification and an accompanying firearm specification in violation of R.C. 2903.01(A) and (G), 2941.145, and 2941.146 (“Count 1”); attempted aggravated murder with a firearm specification in violation of R.C. 2923.02(A) and (E)(1), 2941.145, and 2941.146 (“Count 2”); tampering with evidence in violation of R.C. 2921.12(A)(1) and (B) (“Count 3”); and receiving stolen property in violation of R.C. 2913.51(A) and (C) (“Count 4”). {¶5} Harvey pleaded guilty to all counts of an amended indictment on December 13, 2023. In exchange for his guilty plea, the State dismissed the aggravating circumstances specification, eliminating the possibility of the death penalty. Harvey waived a presentence investigation. The trial court proceeded directly to sentencing hearing. The jointly recommended sentence of 50 to 55 1/2 years to life in prison was imposed.1 Harvey did not file a direct appeal of his conviction. {¶6} On December 19, 2023, six days after his hearing on sentencing, Harvey requested to withdraw his guilty plea. The request was denied on January 4, 2024. Harvey did not appeal from that decision. 1. The sentencing entry was filed on December 21, 2023. PAGE 2 OF 10 Case No. 2026-T-0013  {¶7} On December 9, 2024, Harvey filed a pro se petition for postconviction relief pursuant to R.C. 2953.21. The petition was denied by the trial court on February 13, 2025. Harvey appealed to this court on March 6, 2025. State v. Harvey, 2025-Ohio-5475 (11th Dist.). This Court affirmed the trial court’s decision on December 8, 2025. {¶8} On February 3, 2026, Harvey filed a pro se pleading titled “Motion To Dismiss Indictment – For Lack Of Subject-Matter Jurisdiction.” In his pleading, he claimed that the trial court lacked subject matter jurisdiction because he “was never indicted on a predicate offense of felonious assault to constitute aggravated or felony murder, and prior calculation and design has never been proven or found by a grand jury.” Harvey sought dismissal of the indictment and reversal of his convictions. {¶9} The trial court summarily denied this motion two days later, on February 5, 2026. Harvey appeals. The Appeal {¶10} Harvey raises a single assignment of error for review: [1] Appellant’s Constitutional rights of Due Process and Equal Protection of the Law, as guaranteed by the United States and Ohio Constitutions, were Violated and Denied as the result of An Abuse of Discretion, in which the Trial Court Denied Appellant’s Motion to Dismiss Indictment-For Lack Of Subject- Matter Jurisdiction without the Required Findings of Fact and Conclusions of Law. Harvey’s Filing is a Petition for Postconviction Relief {¶11} In Harvey’s “motion” he expressed to the trial court that his filing was “NOT A Petition for Post-Conviction Relief, and therefore, Not Subject to the Limitations/Restrictions set out it . . . R.C. 2953.21/2953.23.” Such disclaimer has no bearing on the trial court. PAGE 3 OF 10 Case No. 2026-T-0013  {¶12} “Courts may recast irregular motions into whatever category necessary to identify and establish the criteria by which the motion should be judged.” State v. Schlee, 2008-Ohio-545, ¶ 12, citing State v. Bush. 2002-Ohio-3993, citing State v. Reynolds, 1997-Ohio-304. “[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.” Reynolds at ¶ 12; accord State v. Parker, 2024-Ohio-5058, ¶ 8 (11th Dist.). {¶13} Harvey’s pleading asserted that the trial court lacked subject matter jurisdiction because he “was never indicted on a predicate offense of felonious assault to constitute aggravated or felony murder, and prior calculation and design has never been proven or found by a grand jury.” Similar requests have been recast and denied pursuant to R.C. 2953.21. {¶14} The Second District Court of Appeals recently reviewed a similar claim in State v. Parks, 2026-Ohio-2311 (2d Dist.). Parks filed a “motion to dismiss indictment for lack of subject matter jurisdiction.” Id. at ¶ 6. Parks asserted that he had not been validly indicted, that the essential elements in the indictment were never found by the grand jury, and that the indictment failed to meet constitutional requirements of the Fifth and Sixth Amendments to the United States Constitution, as well as Ohio Const., art I, § 10. Id. Parks contended that the trial court lacked subject matter jurisdiction over his case because he was not validly indicted. Id. The trial court construed the motion as a postconviction petition and denied the motion. The trial court reasoned that Parks should PAGE 4 OF 10 Case No. 2026-T-0013 have raised his argument in a direct appeal and therefore the claim was barred by res judicata. Id. at ¶ 8. {¶15} The Second District Court of Appeals concluded that the trial court properly treated the petition as a petition for postconviction relief pursuant to R.C. 2953.21(A)(1). Id. at ¶ 21. The appellate court explained: Parks's indictment charged him with ten felonies and one misdemeanor of the first degree. All the charges fell within the subject matter jurisdiction of the Montgomery County Court of Common Pleas. Although Parks couches his argument in terms of subject matter jurisdiction, the defects he raises regarding the manner in which he was indicted constitute alleged procedural errors, not jurisdictional defects. Consequently, Parks should have raised the alleged defects prior to trial. See Reed, 2022-Ohio-3461, at ¶ 18 (2d Dist.); Crim.R. 12(C). After his conviction, the proper avenue to challenge the validity or sufficiency of the indictment was by direct appeal. State ex rel. Beaucamp v. Lazaroff, 1997- Ohio-277, ¶ 5. Id. at ¶ 19. {¶16} The Fifth District Court of Appeals also found a similarly titled motion seeking comparable relief to be properly construed as a petition for postconviction relief. See generally State v. Kelly, 2026-Ohio-2149, ¶ 13 (5th Dist.). {¶17} Here, Harvey alleged violations of his constitutional rights and sought dismissal of the indictment and reversal of his convictions. The indictment in this case charged Harvey with crimes which fell within the subject matter jurisdiction of the Trumbull County Court of Common Pleas. The alleged deficiencies raised by Harvey are procedural errors and should have been raised before trial or on direct appeal. Therefore, Harvey’s request is properly construed as a motion for postconviction relief as defined by R.C. 2953.21. PAGE 5 OF 10 Case No. 2026-T-0013  Postconviction Relief {¶18} An appellate court reviews the denial of a motion for postconviction relief for an abuse of discretion. State v. Mitchell, 2019-Ohio-844, ¶ 11 (11th Dist.), citing State v. Adams, 2005-Ohio-348, ¶ 37 (11th Dist.). “An abuse of discretion is the trial court's ‘failure to exercise sound, reasonable, and legal decision-making.’” Id. quoting State v. Cline, 2013-Ohio-1843, ¶ 9 (11th Dist.), citing State v. Beechler, 2010-Ohio-1900, ¶ 62 (2d Dist.), quoting Black's Law Dictionary 11 (8th Ed.2004). {¶19} Before considering Harvey’s claims raised in his petition, we must first determine whether the trial court had jurisdiction to consider the successive petition for postconviction relief. {¶20} R.C. 2953.21(A)(1)(a)(i) provides: Any person who has been convicted of a criminal offense . . . and who claims that there was such a denial or infringement of the person's rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States, . . . may file a petition in the court that imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief. {¶21} A petition under R.C.2953.21(A)(1)(a)(i) must be filed no later than three hundred sixty-five days after the date on which the trial transcript is filed in the court of appeals in the direct appeal of the judgment of conviction or adjudication . . . If no appeal is taken, except as otherwise provided in section 2953.23 of the Revised Code, the petition shall be filed no later than three hundred sixty-five days after the expiration of the time for filing the appeal. R.C. 2953.21(A)(2)(a). {¶22} The sentencing entry was filed on December 21, 2023. Harvey’s notice of appeal was due on or before January 22, 2024. Harvey did not file a direct appeal. PAGE 6 OF 10 Case No. 2026-T-0013 Therefore, Harvey’s postconviction petition was due on or before January 22, 2025. Harvey filed his initial postconviction petition on December 9, 2024, which was timely. In that petition, Harvey asserted that he was denied effective assistance of counsel. {¶23} The trial court denied the initial petition finding that “there is nothing in the record or in [Harvey’s] postconviction relief petition which indicates that he was denied effective assistance of counsel.” This court affirmed the trial court’s decision concluding that Harvey did not meet his burden pursuant to R.C. 2953.21 as he did not produce any evidence outside of the record that could not have been adduced at the time of trial. Harvey, 2025-Ohio-5475 (11th Dist.). {¶24} Nearly two months after this court affirmed the denial of his postconviction petition, Harvey filed his second request for postconviction relief on February 3, 2026. {¶25} In order for a court to entertain a petition filed after the expiration of the period set for in R.C. 2953.21, a second petition, or successive petitions for similar relief on behalf of a petitioner, the petition must meet either exception provided under R.C. 2953.23(A)(1) or (2). {¶26} Under R.C. 2953.23(A)(1), for the trial court to entertain a successive petition for postconviction relief, both of the following must be met: Either the petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief, or, subsequent to the period prescribed in division (A)(2) of section 2953.21 of the Revised Code or to the filing of an earlier petition, the United States Supreme Court recognized a new federal or state right that applies retroactively to persons in the petitioner's situation, and the petition asserts a claim based on that right. The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder PAGE 7 OF 10 Case No. 2026-T-0013  would have found the petitioner guilty of the offense of which the petitioner was convicted. . . . (Emphasis added.) {¶27} In other words, a petitioner must establish that: “(1) a new federal or state right has been recognized or that he or she was unavoidably prevented from the discovery of facts upon which the successive petition for postconviction relief is premised; and (2) he or she would not have been convicted in the trial court by a reasonable factfinder but for the constitutional error.” (Emphasis in original.) State v. Miller, 2025-Ohio-4639, ¶ 11 (11th Dist.). Because these two prongs are framed in the conjunctive, both must be met. Id. {¶28} Harvey’s convictions were the result of a guilty plea, therefore he cannot meet the requirements of R.C. 2953.23(A)(1)(b). Mitchell, 2019-Ohio-844, at ¶ 14 (11th Dist.), citing State v. Pough, 2004-Ohio-3933, ¶ 17 (11th Dist.); accord State v. Mehring, 2026-Ohio-1511, ¶ 26 (11th Dist.). Further, Harvey was not unavoidably prevented from discovering any defect in the indictment. As Harvey cannot satisfy both prongs under R.C. 2953.23(A)(1), the exception does not apply.2 {¶29} A trial court does not have jurisdiction to adjudicate the merits of a successive postconviction petition if a petitioner fails to satisfy R.C. 2953.23(A). Miller at ¶ 12, citing State v. Apanovitch, 2018-Ohio-4744, ¶ 36; see State v. Noling, 2008-Ohio- 2394, ¶ 37 (11th Dist.). {¶30} Because Harvey failed to satisfy R.C. 2953.23(A), the trial court was without jurisdiction to consider his successive postconviction petition. Where a trial court is 2. R.C. 2953.23(A)(2) addresses DNA evidence that establishes, by clear and convincing evidence, actual innocence. Harvey also does not contend any exculpatory DNA evidence was discovered. Accordingly, that subsection does not apply to the instant matter. PAGE 8 OF 10 Case No. 2026-T-0013 without jurisdiction to entertain the petition, “it follows that the trial court did not err in failing to conduct a hearing prior to denying the petition.” Miller at ¶ 16, citing Noling at ¶ 102 (11th Dist.). Furthermore, when a trial court dismisses an untimely [or successive petition] postconviction petition, the trial court is not required to issue findings of fact and conclusions of law. Mitchell, 2017-Ohio-8440, at ¶ 40 (11th Dist.), citing State ex rel. James v. Coyne, 2007-Ohio-2716, ¶ 5, citing State ex rel. Kimbrough v. Greene, 2002- Ohio-7042, ¶ 6. {¶31} Additionally, “a trial court may also dismiss a petition for postconviction relief without holding an evidentiary hearing when the claims raised in the petition are barred by the doctrine of res judicata.” Adams, 2005-Ohio-348, at ¶ 38 (11th Dist.). Harvey should have raised his claims regarding any procedural defect in the indictment before trial or on direct appeal from his conviction. As such, res judicata bars his claims. {¶32} As the trial court was without jurisdiction to consider Harvey’s untimely and successive postconviction petition, the trial court did not err or otherwise abuse its discretion when it summarily denied Harvey’s motion without issuing findings of fact and conclusions of law and without holding hearing. {¶33} Accordingly, Harvey’s sole assignment of error is without merit. Conclusion {¶34} For the foregoing reasons, the judgment of the Trumbull County Court of Common Pleas is affirmed. MATT LYNCH, P.J., SCOTT LYNCH, J., concur. PAGE 9 OF 10 Case No. 2026-T-0013  JUDGMENT ENTRY For the reasons stated in the opinion of this court, appellant’s assignment of error is without merit. It is the judgment and order of this court that the judgment of the Trumbull County Court of Common Pleas is affirmed. Costs to be taxed against appellant. JUDGE ROBERT J. PATTON PRESIDING JUDGE MATT LYNCH, concurs JUDGE SCOTT LYNCH, concurs THIS DOCUMENT CONSTITUTES A FINAL JUDGMENT ENTRY A certified copy of this opinion and judgment entry shall constitute the mandate pursuant to Rule 27 of the Ohio Rules of Appellate Procedure. PAGE 10 OF 10 Case No. 2026-T-0013