[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.
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{¶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 SubjectMatter 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.
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{¶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
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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.
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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.
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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
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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-Ohio2394, ¶ 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.
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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.
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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.
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