State v. Ramirez , 2012 Ohio 3752 ( 2012 )

[Cite as State v. Ramirez, 2012-Ohio-3752.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
DEFIANCE COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 4-12-01
v.
MOISES RAMIREZ, OPINION
DEFENDANT-APPELLANT.
Appeal from Defiance County Common Pleas Court
Trial Court No. 6111
Judgment Affirmed
Date of Decision: August 20, 2012
APPEARANCES:
Moises Ramirez, Appellant
Russell R. Herman and Morris J. Murray for Appellee
Case No. 4-12-01
SHAW, P.J.
{¶1} Defendant-appellant, Moises Ramirez (“Ramirez”), appeals the
judgments of the Defiance County Court of Common Pleas overruling his “Motion
to Correct Defendant’s Void Sentence Pursuant to [R.C.] 2947.23(A)(1)(a)&(b)”
and his “Motion for Finding [sic] of Fact and Conclusions of Law.”
{¶2} In 1994, Ramirez was convicted by a Defiance County jury for one
count of rape, five counts of felonious sexual penetration, seven counts of gross
sexual imposition, and one count of sexual imposition. The underlying details of
the conviction stem from Ramirez’s repeated sexual abuse of his daughter, his
niece, and his daughter’s friend. The sexual acts occurred over a period of time
when two of the victims, Ramirez’s daughter and niece, were both under the age
of thirteen, and when the third victim, his daughter’s friend, was over the age of
thirteen but less than the age of sixteen. Ramirez was sentenced to an indefinite
prison term of fifteen to fifty years. Ramirez subsequently appealed his
conviction, which was affirmed by this Court in State v. Ramirez I, 98 Ohio
App.3d 388 (3d Dist. 1994).
{¶3} Seventeen years later, on October 19, 2011, Ramirez filed his “Motion
to Correct Defendant’s Void Sentence Pursuant to [R.C.] 2947.23(A)(1)(a)&(b),”
which the trial court subsequently overruled.
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{¶4} On November 2, 2011, Ramirez filed his “Motion for Finding [sic] of
Fact and Conclusions of Law” regarding the trial court’s overruling of his “Motion
to Correct Defendant’s Void Sentence Pursuant to [R.C.] 2947.23(A)(1)(a)&(b),”
which was also overruled by the trial court.
{¶5} On November 8, 2011, Ramirez filed this appeal asserting the
following assignments of error.
ASSIGNMENT OF ERROR NO. I
THE TRAIL [SIC] COURT ABUSED IT’S [SIC] DISCRETION
AND COMMITTED REVERSIBLE ERROR IN DENYING
APPELLANT’S MOTION TO CORRECT DEFENDANT’S
VOID SENTENCE PURSUANT TO OHIO REVISED CODE §
2947.23(A)(1), SECTIONS (a) & (b), IN FINDING SAID
MOTION NOT WELL TAKEN AND REFUSING
DEFENDANT’S MOTION FOR FINDINGS OF FACTS AND
CONCLUSION [SIC] OF LAW.
ASSIGNMENT OF ERROR NO. II
APPELLANT WAS DENIED EQUAL PROTECTION OF THE
LAW BY THE STATE OF OHIO.
ASSIGNMENT OF ERROR NO. III
APPELLANT WAS DENIED HIS RIGHT TO THE OHIO
CONSTITUTION UNDER SECTION 10, ARTICLE 1,
(EQUAL PROTECTION AND BENEFIT) INTERVENING
DECISION.
ASSIGNMENT OF ERROR NO. IV
APPELLANT HAS [SIC] INEFFECTIVE ASSISTANCE OF
COUNSEL UPON HIS FIRST APPEAL.
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Case No. 4-12-01
First Assignment of Error
{¶6} In his first assignment of error, Ramirez argues that the trial court
erred when it overruled his “Motion to Correct Defendant’s Void Sentence
Pursuant to [R.C.] 2947.23(A)(1)(a)&(b)” and his “Motion for Finding [sic] of
Fact and Conclusions of Law.” As the basis for his motion to correct his sentence
and this assignment of error, Ramirez repeatedly references his 2009 case in
Richland County, which involved the administrative “reclassification” of
incarcerated defendants by the Ohio Attorney General under the newly passed
legislation of Ohio’s Adam Wash Act.1 See State v. Ramirez II, 5th Dist. No. 08
CA 284, 2009-Ohio-5005.
{¶7} Pursuant to R.C. 2950.031(E) and 2950.032(E), Ramirez challenged
his administrative “reclassification” by the Ohio Attorney General as a Tier III
Sexual Offender in the Richland County Court of Common Pleas. Ramirez II at ¶
2. The merits of Ramirez’s 2009 case concerning his sex offender classification
were ultimately decided by the Fifth Appellate District. Ramirez II at ¶ 24.
{¶8} Ramirez now contests his classification as a sex offender in the
Richland County case. Specifically, Ramirez claims his “sentence” is void
because he was never properly notified by the Richland County Court in 2009 that
he may be subject to community service if he fails to pay his court costs pursuant
1
At this time, Ramirez was an inmate at the Mansfield Correctional Institute located in Richland County.
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to R.C. 2947.23(A)(1)(a) &(b).2 Notably, in his motion to correct his sentence,
Ramirez does not raise any issues with the original sentence imposed by the
Defiance County Court in 1994.
{¶9} In conducting our review of this appeal, it is apparent that all of
Ramirez’s complaints raised in his motion to correct his sentence filed with the
Defiance County Court pertain to his classification as a sex offender in the
Richland County case—a case which is not within our jurisdiction. Moreover,
there is no reference to Ramirez’s sex offender classification in the Richland
County case contained in the Defiance County record before us. Rather, there are
no filings in the Defiance County record from 1999 to 2011, when Ramirez filed
his “Motion to Correct Defendant’s Void Sentence Pursuant to [R.C.]
2947.23(A)(1)(a)&(b)” to institute these proceedings.
{¶10} Accordingly, because Ramirez has failed to raise any error in his
“Motion to Correct Defendant’s Void Sentence Pursuant to [R.C.]
2947.23(A)(1)(a) &(b)” pertaining to a judgment issued by the Defiance County
Court, we find no abuse of discretion in the Defiance County Court’s decision to
overrule Ramirez’s motion to correct his sentence. Therefore, we also conclude
that the Defiance County Court did not abuse its discretion in overruling
2
We note that Ramirez failed to cite any case law standing for the proposition that a trial court’s failure to
comply with the community service notifications in R.C. 2947.23(A)(1)(a) &(b) renders a sentence void.
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Ramirez’s “Motion for Finding [sic] of Fact and Conclusions of Law,” which was
filed based on that court overruling his motion to correct his sentence.
{¶11} Ramirez’s first assignment of error is overruled.
Second, Third, and Fourth Assignments of Error
{¶12} In the remaining assignments of errors, Ramirez asserts arguments
relating to the constitutionality of his “reclassification” as a Tier III Sexual
Offender in his 2009 Richland County case. Ramirez also raises issues relating to
his 1994 jury conviction in his Defiance County case. Specifically, Ramirez
claims the Defiance County Court committed several errors during his 1994 jury
trial, and Ramirez also claims he received ineffective assistance of counsel at the
1994 jury trial.
{¶13} For the reasons stated above, this Court will not address Ramirez’s
arguments relating to his sex offender classification in his 2009 Richland County
case. Ramirez’s arguments on appeal as they relate to his 1994 conviction by a
jury in the Defiance County case are now barred by res judicata because Ramirez
had the opportunity to raise these issues in 1994 on his direct appeal of that
judgment of conviction. “Under the doctrine of res judicata, a final judgment of
conviction bars the convicted defendant from raising and litigating in any
proceeding, except an appeal from that judgment, any defense or any claimed lack
of due process that was raised or could have been raised by the defendant at the
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trial that resulted in that judgment of conviction or on an appeal from that
judgment.” State v. Perry (1967), 10 Ohio St.2d 175, 180. It is well established
that res judicata bars the consideration of issues that could have been raised on
direct appeal. State v. Saxon, 109 Ohio St.3d 176, 2006–Ohio–1245 at ¶ 16–17.
Moreover, there is nothing in the record, nor does Ramirez make any argument,
justifying his seventeen-year delay in raising these issues.
{¶14} Based on the foregoing, Ramirez’s second, third, and fourth
assignments of error are overruled and the judgments of the Defiance County
Court of Common Pleas are affirmed.
Judgments Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.
/jlr
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