State v. Jackson , 2021 Ohio 3115 ( 2021 )


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  • [Cite as State v. Jackson, 
    2021-Ohio-3115
    .]
    IN THE COURT OF APPEALS OF OHIO
    SECOND APPELLATE DISTRICT
    MONTGOMERY COUNTY
    STATE OF OHIO                                      :
    :
    Plaintiff-Appellee                         :   Appellate Case No. 29001
    :
    v.                                                 :   Trial Court Case No. 2010-CR-1126
    :
    DENNIS DEVONE JACKSON                              :   (Criminal Appeal from
    :   Common Pleas Court)
    Defendant-Appellant                        :
    :
    ...........
    OPINION
    Rendered on the 10th day of September, 2021.
    ...........
    MATHIAS H. HECK, JR., by JAMIE J. RIZZO, Atty. Reg. No. 0099218, Assistant
    Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
    Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
    45422
    Attorney for Plaintiff-Appellee
    DENNIS DEVONE JACKSON, #A645-759, Southeastern Correctional Institution, 5900
    B.I.S. Road, Lancaster, Ohio 43130
    Defendant-Appellant, Pro Se
    .............
    DONOVAN, J.
    -2-
    {¶ 1} Defendant-appellant Dennis Devone Jackson appeals from orders of the
    Montgomery County Court of Common Pleas, which denied his Motion to Correct an
    Illegal/Void Sentence and his Motion for New Trial/Motion to Dismiss. Jackson filed
    timely notices of appeal on January 5, 2021.
    {¶ 2} We set forth the history of the case in State v. Jackson, 2d Dist. Montgomery
    No. 24430, 
    2012-Ohio-2335
     ( “Jackson I”) and repeat it herein in pertinent part:
    On the night of March 19, 2010, someone entered Unit 4716 in the
    Deer Creek apartment complex, shot Antoine West, and robbed him. Two
    other people who were in the apartment at the time, Thomas Horn and
    Kimberly Carl, were unharmed. Carl was unable to identify the shooter, and
    Horn later gave conflicting statements about whether he could identify the
    shooter.
    An investigation by the Trotwood Police Department led the
    detectives to believe that Jackson had been the assailant, that Jackson shot
    West with a gun Jackson had borrowed from an acquaintance, Dion Sims,
    and that Jackson had taken a large sum of money from West.
    Jackson was indicted on the following offenses: murder (as a
    proximate result of aggravated burglary); aggravated burglary (deadly
    weapon); murder (as a proximate result of aggravated robbery); aggravated
    robbery (deadly weapon); murder (as a proximate result of a felonious
    assault); felonious assault (deadly weapon); felonious assault (serious
    harm); aggravated burglary (physical harm); and aggravated robbery
    -3-
    (serious harm). The indictment also contained a firearm specification on
    each count.
    Before trial, Jackson filed a motion to suppress photo identification
    evidence and statements he made to the police during the investigation.
    After a hearing, his motion to suppress was overruled.
    The case was set for trial on August 30, 2010. On that date, however,
    the State informed the court that it had been unable to locate Horn, who
    was a key witness. The State requested a continuance and asked the court
    to issue a material witness warrant for Horn. The trial court granted the
    State's request for a continuance, issued a material witness warrant for
    Horn, and reset the trial for three weeks later.
    The first trial began on September 20, 2010. At that time, the State
    still had not located Horn. Jackson requested a mistrial, however, when one
    of the State's witnesses, Dion Sims—who, in Jackson's estimation, was an
    alternate suspect—revealed during his testimony that he had taken a lie
    detector test. Jackson's motion for a mistrial was granted.
    Thereafter, Jackson argued to the court that his right not to be placed
    in double jeopardy and his right to a speedy trial had been violated, and he
    asked that the charges against him be dismissed. The trial court overruled
    the motion to dismiss, and a second trial was scheduled for December
    2010. Meanwhile, Thomas Horn was located in October 2010 and was
    arrested pursuant to the material witness warrant. Horn's deposition was
    taken, in accordance with Crim.R. 15, before he was released from custody;
    -4-
    he was also served with a subpoena for trial before he was released.
    Jackson's second trial was held on December 3 and December 6-
    10, 2010. Horn did not appear at trial and could not be located by the police.
    The trial court declared Horn unavailable, and his deposition was played for
    the jury. In his deposition testimony, Horn claimed not to recall the identity
    of the shooter, but he admitted and was cross-examined by the State about
    prior statements in which he identified Jackson as the shooter.
    The State also presented evidence at trial that Sims had loaned a
    gun to Jackson on the day of the shooting and that forensic evidence linked
    that gun to the shooting. The State offered testimony from a neighbor of the
    victim that a man running from the building after the shooting had worn a
    multi-colored jacket, testimony and surveillance video showing that Jackson
    had worn a similar jacket earlier in the day, and testimony that the victim
    had been in possession of a large sum of cash at the time of the shooting.
    No cash was found on the victim's body, and his pants' pockets had been
    turned inside out. The State also offered evidence to discredit Jackson's
    statements to the police about where he had been at the time of the
    shooting, including cell phone records and testimony from the people with
    whom he claimed to have been.
    The defense did not call any witnesses.
    The jury found Jackson guilty on all counts.
    The trial court merged the counts of murder and felonious assault
    into one count of murder, and sentenced Jackson to fifteen years to life for
    -5-
    that offense. The trial court also merged the two counts of aggravated
    burglary and the two counts of aggravated robbery; the court sentenced
    Jackson to ten years for aggravated burglary and ten years for aggravated
    robbery, to be served concurrently to one another, but consecutively to the
    sentence for murder. All of the firearm specifications were also merged, and
    Jackson was sentenced to three additional years of actual incarceration on
    the firearm specification.
    
    Id. at ¶ 2-13
    . Jackson’s aggregate sentence was 28 years to life in prison. 
    Id. at ¶ 1
    .
    Jackson appealed his convictions, and we affirmed the judgment of the trial court in
    Jackson I. 
    Id. at ¶ 143
    .
    {¶ 3} Several years later, Jackson filed a motion for new trial, a motion to dismiss,
    and a supplemental motion to dismiss in December 2017 and January 2018. Later still,
    on April 16, 2020, Jackson filed a motion to correct an illegal/void sentence, which he
    also later sought to supplement in May 2020. On December 11, 2020, the trial court filed
    two separate entries in which it overruled Jackson’s motion to correct an illegal/void
    sentence and his motion for new trial/motion to dismiss. In both entries, the trial court
    construed Jackson’s motions as petitions for postconviction relief, and it denied the
    petitions as untimely and barred by res judicata.
    {¶ 4} As previously stated, Jackson filed a timely notice of appeal of the trial court’s
    orders.   Jackson filed his merit brief on February 19, 2021, and the State filed its
    responsive brief on April 30, 2021. On May 10, 2021, Jackson filed a motion requesting
    leave to supplement his brief with an additional assignment of error contained in the
    motion. On June 9, 2021, we granted Jackson’s motion to supplement his original brief,
    -6-
    and the State filed its response to Jackson’s additional assignment of error the following
    day. On June 24, 2021, Jackson filed a reply to the State’s response to his motion
    requesting leave to supplement his brief with an additional assignment of error.
    {¶ 5} Jackson’s appeals, pro se. Because they are interrelated, we will discuss
    all six of Jackson’s assignments of error together as follows:
    DID JUDGE PARKER ERR, AND ABUSE HIS DISCRETION WHEN
    HE FOUND APPELLANT’S MOTION TO CORRECT ILLEGAL/VOID
    SENTENCE WAS BARRED BY RES JUDICATA?
    WAS JUDGE PARKER IN ERR [sic] WHEN HE FOUND THE
    LANGUAGE IN R.C. 2929.14(B)(1)(G) DID NOT APPLY AT THE TIME OF
    APPELLANT’S SENTENCING HOLDING JUDGE TUCKER THEREFORE
    DID NOT ACT WITHOUT AUTHORITY, OR CONTRARY TO LAW WHEN
    HE APPLIED R.C. 2929.14(D)(1)(B)?
    WAS JUDGE PARKER IN ERR [sic] WHEN HE FOUND THAT TO
    LENGTHEN APPELLANT’S SENTENCE AN ADDITIONAL 3 YRS.
    (FIREARM SPECIFICATION) WOULD VIOLATE THE EX POST FACTO
    CLAUSE?
    JUDGE PARKER ABUSED HIS AUTHORITY WHEN HE ALLEGED
    APPELLANT MADE CONSTITUTIONAL DUE PROCESS CLAIM IN HIS
    MOTION FOR LEAVE TO SUPPLEMENT MOTION TO CORRECT
    ILLEGAL / VOID SENTENCE? [sic]
    DID TRIAL COUNSEL’S FAILURE TO PROVIDE EFFECTIVE
    ASSISTANCE        OF    COUNSEL       AT    EVERY     STAGE     OF    TRIAL
    -7-
    PROCEEDINGS         PREVENT       AN    EFFECTIVE      RECORD       DURING
    APPELLANT’S DIRECT APPEAL FROM CONVICTION ALLOWING HIS
    SPEEDY TRIAL RIGHTS PURSUANT [TO] O.R.C. 2945.71-73 FROM
    BEING FAIRLY ADDRESSED?
    DID THE TRIAL COURT ERR WHEN IT HELD TRIAL JUDGE /
    COURT’S UNAUTHORIZE [sic] [AND] UNLAWFUL ACTS OF IMPOSING
    SENTENCE OUTSIDE OF OHIO’S STATUTORY MANDATES WERE
    VOIDABLE, AND NOT VOID, AND WERE REQUIRED TO BE
    CHALLENGE[D] ON DIRECT APPEAL?
    {¶ 6} In his first, second, third, and sixth assignments of error, Jackson contends
    that the trial court erred when it merged a three-year sentence for a firearm specification
    into his aggregate sentence of 28 years to life in prison rather than sentencing him to an
    additional three years in prison. In his fourth and fifth assignments of error, Jackson
    argues that his speedy trial rights were violated and that he received ineffective
    assistance of counsel when his attorney failed to raise the issue prior to his second trial
    in 2010.
    {¶ 7} Postconviction relief is governed by R.C. 2953.21. The statute provides, in
    pertinent part, that:
    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
    -8-
    court to vacate or set aside the judgment or sentence or to grant other
    appropriate relief. The petitioner may file a supporting affidavit and other
    documentary evidence in support of the claim for relief.
    R.C. 2953.21(A)(1)(a).
    {¶ 8} “A postconviction proceeding is not an appeal of a criminal conviction, but,
    rather, a collateral civil attack on the judgment.” State v. Stefen, 
    70 Ohio St.3d 399
    , 410,
    
    639 N.E.2d 67
     (1994); see also State v. Gondor, 
    112 Ohio St.3d 377
    , 
    2006-Ohio-6679
    ,
    
    860 N.E.2d 77
    , ¶ 48. To prevail on a petition for postconviction relief, the defendant must
    establish a violation of his constitutional rights which renders the judgment of conviction
    void or voidable. R.C. 2953.21.
    {¶ 9} The postconviction relief statutes do “not expressly mandate a hearing for
    every post-conviction relief petition and, therefore, a hearing is not automatically
    required.” State v. Jackson, 
    64 Ohio St.2d 107
    , 110, 
    413 N.E.2d 819
     (1980). Rather, in
    addressing a petition for postconviction relief, a trial court plays a gatekeeping role as to
    whether a defendant will receive a hearing. Gondor at ¶ 51. A trial court may dismiss a
    petition for postconviction relief without a hearing “where the petition, the supporting
    affidavits, the documentary evidence, the files, and the records do not demonstrate that
    petitioner set forth sufficient operative facts to establish substantive grounds for relief.”
    State v. Calhoun, 
    86 Ohio St.3d 279
    , 
    714 N.E.2d 905
     (1999), paragraph two of the
    syllabus; Gondor at ¶ 51.
    {¶ 10} We review the trial court's denial of a petition for postconviction relief for an
    abuse of discretion. Gondor at ¶ 52. An abuse of discretion suggests the trial court's
    decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5
    -9-
    Ohio St.3d 217, 219, 
    450 N.E.2d 1140
     (1983).
    {¶ 11} Initially, we agree with the trial court that Jackson’s motions were the
    functional equivalent of petitions for postconviction relief, which were untimely because
    they were not filed within 365 days after the trial transcript was filed with this court in his
    direct appeal. See R.C. 2953.21(A)(2). Additionally, none of the statutory exceptions for
    filing untimely petitions applied here. See R.C. 2953.23(A).
    {¶ 12} The arguments raised in Jackson’s motions established, at most, that his
    sentence was voidable. Jackson did not argue that his sentence was not in conformity
    with statutorily mandated terms, that it was not provided for by law, or even that it failed
    to comply with the formal requirements of R.C. 2941.25. See State v. Parson, 2d Dist.
    Montgomery No. 24641, 
    2012-Ohio-730
    , ¶ 9. At best, Jackson's sentence was voidable;
    thus he was barred by the doctrine of res judicata from challenging his sentence on these
    grounds collaterally through his petition for postconviction relief, as he could have raised
    the issue regarding the trial court’s failure to sentence him to an additional consecutive
    three-year prison term for the second firearm specification in his direct appeal. See State
    v. Videen, 2d Dist. Montgomery No. 27479, 
    2017-Ohio-8608
    , ¶ 20, citing State v. Russell,
    10th Dist. Franklin No. 04AP-1149, 
    2005-Ohio-4063
    , ¶ 6-7 (finding res judicata barred
    appellant from raising issues in his motion for new trial that could have been raised in his
    direct appeal).
    {¶ 13} In State v. Reid, 2d Dist. Montgomery No. 25790, 
    2014-Ohio-1282
    , we
    stated the following:
    “Pursuant to the doctrine of res judicata, a valid final judgment on the
    merits bars all subsequent actions based on any claim arising out of the
    -10-
    transaction or occurrence that was the subject matter of the previous
    action.” State v. Collins, 2d Dist. Montgomery No. 25612, 
    2013-Ohio-3645
    ,
    ¶ 9, citing Grava v. Parkman Twp., 
    73 Ohio St.3d 379
    , 382, 
    653 N.E.2d 226
    (1995). Moreover, “[a]rguments challenging the imposition of a sentence
    that is voidable are barred by the doctrine of res judicata if not raised on
    direct appeal.” State v. Simons, 2d Dist. Champaign No. 2013 CA 5, 2013-
    Ohio-3654, ¶ 42, citing State v. Simpkins, 
    117 Ohio St.3d 420
    , 2008-Ohio-
    1197, 
    884 N.E.2d 568
    , ¶ 30. (Other citation omitted.) In other words,
    “defendants with a voidable sentence are entitled to re-sentencing only
    upon a successful challenge on direct appeal.” 
    Id. at ¶ 40,
     quoting State v.
    Payne, 
    114 Ohio St.3d 502
    , 
    2007-Ohio-4642
    , 
    873 N.E.2d 306
    , ¶ 30.
    “[A] voidable judgment is one rendered by a court that has both
    jurisdiction and authority to act, but the court's judgment is invalid, irregular,
    or erroneous.” 
    Id.,
     quoting Simpkins at ¶ 12.
    Reid at ¶ 7-8.
    {¶ 14} Furthermore, Jackson’s argument with respect to the trial court’s failure to
    sentence him to an additional consecutive three-year prison term for the second firearm
    specification is without merit because the error, if any, was harmless. Ordinarily, the
    court is forbidden from imposing sentence on multiple firearm specifications for “felonies
    committed as part of the same act or transaction.” See former R.C. 2929.14(D)(1)(b), now
    R.C. 2929.14(B)(1)(b). However, that section applies only to the extent that former R.C.
    2929.14(D)(1)(g)      (now   R.C.   2929.14(B)(1)(g))    does    not   apply.   Former      R.C.
    2929.14(D)(1)(g) stated:
    -11-
    If an offender is convicted of or pleads guilty to two or more felonies, if one
    or more of those felonies are aggravated murder, murder, attempted
    aggravated murder, attempted murder, aggravated robbery, felonious
    assault, or rape, and if the offender is convicted of or pleads guilty to a
    specification of the type described under division (B)(1)(a) of this section in
    connection with two or more of the felonies, the sentencing court shall
    impose on the offender the prison term specified under division (B)(1)(a) of
    this section for each of the two most serious specifications of which the
    offender is convicted or to which the offender pleads guilty and, in its
    discretion, also may impose on the offender the prison term specified under
    that division for any or all of the remaining specifications.
    (Emphasis added.)
    {¶ 15} Here, the trial court’s failure to impose an additional three-year consecutive
    prison term for the second firearm specification benefitted Jackson, because he will
    ostensibly serve fewer years in prison. Accordingly, none of Jackson’s substantial rights
    were violated, and he suffered no prejudice.
    {¶ 16} Finally, Jackson’s arguments in regard to a violation of his speedy trial rights
    and his counsel’s failure to raise the issue in the trial court were barred by res judicata.
    Initially, we note that we found in Jackson I that Jackson’s speedy trial rights had not been
    violated when the trial court denied his motion to dismiss on speedy trial grounds. Thus,
    any issue with respect to Jackson’s speedy trial rights has already been litigated, and we
    need not address it here. Additionally, “[a]ny ineffective assistance claim relating to
    matters contained within the record should be brought through a direct appeal.” State v.
    -12-
    Lane, 2d Dist. Greene No. 2014-CA-54, 
    2015-Ohio-2712
    , ¶ 13, citing State v. Wilson, 2d
    Dist. Montgomery No. 23129, 
    2013-Ohio-180
    , ¶ 47-48. “ ‘If an alleged constitutional
    error [such as ineffective assistance of counsel] could have been raised and fully litigated
    on direct appeal, the issue is res judicata and may not be litigated in a postconviction
    proceeding.’ ” 
    Id.,
     quoting State v. Franklin, 2d Dist. Montgomery No. 19041, 2002-Ohio-
    2370, ¶ 9, citing State v. Perry, 
    10 Ohio St.2d 175
    , 180, 
    226 N.E.2d 104
     (1967).
    {¶ 17} In light of the foregoing, Jackson’s six assignments of error are overruled.
    {¶ 18} The judgments of the trial court are affirmed.
    .............
    HALL, J. and WELBAUM, J., concur.
    Copies sent to:
    Mathias H. Heck, Jr.
    J. Joshua Rizzo
    Dennis D. Jackson
    Hon. Gerald Parker
    

Document Info

Docket Number: 29001

Citation Numbers: 2021 Ohio 3115

Judges: Donovan

Filed Date: 9/10/2021

Precedential Status: Precedential

Modified Date: 9/10/2021