Boler v. Hill (Slip Opinion) , 2022 Ohio 507 ( 2022 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Boler v. Hill, Slip Opinion No. 2022-Ohio-507.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
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promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
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SLIP OPINION NO. 2022-OHIO-507BOLER, APPELLANT, v. HILL, WARDEN, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Boler v. Hill, Slip Opinion No. 2022-Ohio-507.]
Habeas corpus—Court of appeals correctly dismissed complaint on the basis of res
judicata—Judgment affirmed.
(No. 2021-1073—Submitted December 7, 2021—Decided February 24, 2022.)
APPEAL from the Court of Appeals for Marion County, No. 9-21-08.
________________
Per Curiam.
{¶ 1} Appellant, Phillip Dionte Boler, appeals the judgment of the Third
District Court of Appeals dismissing his petition for a writ of habeas corpus against
appellee, Leon Hill,1 warden of the Marion Correctional Institution. During the
pendency of this appeal, Boler has filed a motion for an order of discharge and a
motion to extend the record and has made two requests for oral argument. For the
1. Under S.Ct.Prac.R. 4.06(B), the current warden of the Marion Correctional Institution, Leon Hill,
is automatically substituted as a party to this action for the former warden, Lyneal Wainwright.
SUPREME COURT OF OHIO
reasons set forth herein, we deny the motions, deny the requests for oral argument,
and affirm the judgment of the court of appeals.
I. BACKGROUND
{¶ 2} In February 2009, Boler was indicted in Athens County on two felony
charges: aggravated robbery and felony-murder, the underlying felony offense being
aggravated robbery. Both charges carried firearm specifications. In an amended bill
of particulars, the state indicated that “the underlying theft offense to the aggravated
robbery was attempted theft and/or burglary or an attempted burglary.” In June 2009,
Boler was convicted on both counts.
{¶ 3} In March 2021, Boler filed a petition for a writ of habeas corpus in the
Third District Court of Appeals. He attached to the petition a nunc pro tunc
sentencing entry dated August 24, 2020, imposing an aggregate prison sentence of
28 years to life for the June 2009 convictions.
{¶ 4} Boler alleged in his petition that his convictions are void. He argued
that at the time of the offense, there was no such offense as “attempted theft and/or
burglary or an attempted burglary.” Boler contended that because the aggravated
robbery charge was allegedly predicated on a nonexistent offense and the murder
charge was predicated on the aggravated robbery charge, his two convictions were
nullities and he should be immediately released.
{¶ 5} On July 29, 2021, the court of appeals dismissed the petition. The court
of appeals held that Boler had failed to attach copies of all his commitment orders,
as required by R.C. 2725.04(D). In addition, the court of appeals found that his claim
was barred by res judicata because he had raised the same claim in a 2019 petition
that this court dismissed without opinion. Boler-Bey v. Wainwright, 156 Ohio St.3d
1469, 2019-Ohio-2953, 126 N.E.3d 1183.
{¶ 6} Boler appealed.
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January Term, 2022
II. ANALYSIS
A. The merits of the appeal
{¶ 7} We begin with the second proposition of law, in which Boler contends
that the doctrine of res judicata does not bar the present habeas petition.
Specifically, Boler contends that the basis of his previous habeas petition was the
alleged unconstitutionality of R.C. 2911.01, while the issue in the present petition
is whether the language of the statute permitted his convictions.
{¶ 8} Boler’s argument is unpersuasive. First, Boler’s statements
concerning the nature of the arguments in his two petitions are not supported by the
record. The 2019 petition contained essentially the same allegations as the present
petition and concerned the issue whether the aggravated robbery charge and the
murder charge were predicated on a nonexistent offense. Second, even if the
grounds for the two petitions had been different, the petition now at issue would
have been subject to dismissal. The doctrine of res judicata precludes successive
habeas petitions even when the grounds for relief are distinct. See Bevins v.
Richard, 144 Ohio St.3d 54, 2015-Ohio-2832, 40 N.E.3d 1108, ¶ 4; State ex rel.
Childs v. Lazaroff, 90 Ohio St.3d 519, 520, 739 N.E.2d 802 (2001). Boler could
have argued any cognizable claim that he had in his first habeas petition; therefore,
res judicata bars the present action. Bevins at ¶ 4.
{¶ 9} Boler attempts to avoid the application of res judicata by claiming that
his conviction was void. His argument is without merit. Boler has not contested
the sentencing court’s subject-matter jurisdiction or its jurisdiction over his person.
As such, there has been no showing that his conviction was void. See State v.
Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776; State v. Harper,
160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248. The court of appeals
correctly dismissed Boler’s petition on the basis of res judicata, and his second
proposition of law is without merit.
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SUPREME COURT OF OHIO
{¶ 10} In his first proposition of law, Boler contends that the court of
appeals incorrectly dismissed his petition for failure to comply with R.C.
2725.04(D). And in his third and fourth propositions of law, he argues the merits
of his habeas claim. Given our holding that the petition was properly dismissed on
res judicata grounds, it is unnecessary to address these arguments, and we decline
to do so.
B. The pending motions
{¶ 11} On November 16, 2021, Boler filed a motion asking us to order his
discharge from prison. And on November 24, 2021, he filed a motion to extend the
record on appeal to include the transcripts of his criminal trial. We deny both
motions.
{¶ 12} The motion for an order releasing Boler from confinement is based
on the warden’s failure to file a merit brief in this appeal. If an appellee fails to file
a merit brief, we “may accept the appellant’s statement of facts and issues as correct
and reverse the judgment if the appellant’s brief reasonably appears to sustain
reversal.” (Emphasis added.) S.Ct.Prac.R. 16.07(B). For the reasons previously
discussed, Boler is not entitled to judgment in his favor, notwithstanding the
warden’s decision not to file a merit brief.
{¶ 13} We also deny Boler’s motion to extend the record. Boler’s trial
transcript is irrelevant to the sole issue we are deciding in this case, which is the
application of res judicata to Boler’s petition.
{¶ 14} Finally, we deny Boler’s two requests for oral argument. We have
discretion to grant oral argument, and in exercising that discretion, we will consider
whether the case involves a matter of great public importance, complex issues of
law or fact, a substantial constitutional issue, or a conflict among courts of appeals.
State ex rel. Davis v. Pub. Emps. Retirement Bd., 111 Ohio St.3d 118, 2006-Ohio-
5339, 855 N.E.2d 444, ¶ 15 (decided under prior version of the rules). None of
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January Term, 2022
those factors are present in this case. The law governing Boler’s claims is well
established.
III. CONCLUSION
{¶ 15} For these reasons, we hold that the court of appeals correctly
dismissed the habeas corpus petition because it was barred by res judicata. Because
the petition was properly dismissed on that basis, we do not address the remaining
propositions of law. We reject the two pending motions, deny the requests for oral
argument, and affirm the judgment of the court of appeals.
Judgment affirmed.
O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, and
BRUNNER, JJ., concur.
STEWART, J., concurs in judgment only.
_________________
Phillip Dionte Boler, pro se.
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