State v. Winters , 2016 Ohio 622 ( 2016 )

[Cite as State v. Winters, 2016-Ohio-622.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. CT2015-0029
:
RONDIAL E. WINTERS :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Case No.
CR2012-0138
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: February 17, 2016
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
D. MICHAEL HADDOX TONY A. CLYMER
MUSKINGUM CO. PROSECUTOR 1420 Matthias Dr.
GERALD V. ANDERSON Columbus, OH 43224
27 North 5th St., P.O. Box 189
Zanesville, OH 43702-0189
Muskingum County, Case No. CT2015-
0029 2
Delaney, J.
{¶1} Appellant Rondial E. Winters appeals from the May 14, 2015 Judgment
Entry of the Muskingum County Court of Common Pleas overruling his motion to correct
sentence. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} This case arose when appellant elected to plead guilty to the following eight
counts contained in a bill of information filed June 6, 2012: gross sexual imposition
pursuant to R.C. 2907.05(A)(4), a felony of the third degree [Count I]; gross sexual
imposition pursuant to R.C. 2907.05(A)(4), a felony of the third degree [Count II]; gross
sexual imposition pursuant to R.C. 2907.05(A)(4), a felony of the third degree [Count III];
gross sexual imposition pursuant to R.C. 2907.05(A)(4), a felony of the third degree
[Count IV]; pandering obscenity involving a minor pursuant to R.C. 2907.321(A)(1), a
felony of the second degree [Count V]; pandering obscenity involving a minor pursuant to
R.C. 2907.321(A)(1), a felony of the second degree [Count VI]; pandering obscenity
involving a minor pursuant to R.C. 2907.321(A)(1), a felony of the second degree [Count
VII]; and pandering obscenity involving a minor pursuant to R.C. 2907.321(A)(1), a felony
of the second degree [Count VIII].
{¶3} Appellee’s statements of fact at both the bill of information hearing and the
later sentencing hearing established appellant had sexual contact with a minor under the
age of thirteen on four separate occasions between June 1, 2001 and May 2, 2007. In
the course of the investigation, the victim told police appellant had shown her
pornography and seizure of appellant’s computer yielded, e.g., four separate images of
child pornography.
Muskingum County, Case No. CT2015-
0029 3
{¶4} Appellant affirmatively waived prosecution by indictment on June 6, 2012
and entered guilty pleas as charged in exchange for appellee’s recommended aggregate
sentence of 14 years. (Appellant then entered guilty pleas again on August 6, 2012
because the maximum sentence for Counts I through IV had been misstated at the first
hearing.) Appellant also elected to proceed with sentencing under the “current law”
instead of the law in existence at the time the crimes occurred with respect to sex offender
classification. The trial court’s sentencing Entry of August 8, 2012 states in pertinent part:
* * * *.
The Court finds that the crimes for which [appellant] was
convicted span a period of time during which the Ohio sexual
offender classification laws have been amended by the legislature.
The Court finds that these changes affect the rights and
responsibilities of those convicted of sexually oriented offenses. The
Court finds that where possible the Defendant is entitled to be
classified under the statutory provisions that are least restrictive.
However, due to many variables in the statutes, the Court is unable
to determine which statutes applies and determines to allow
[appellant] to elect which statute upon which he desires to proceed.
The finds that (sic) [appellant] has elected to proceed under
Ohio’s recent adoption of the Tier Classification System. Pursuant
to Ohio Revised Code 2950.01 the offenses for which [appellant] was
convicted are defined as sexually oriented offenses, and as such,
require that [appellant] has elected to be classified under the Tier
Muskingum County, Case No. CT2015-
0029 4
Group of classification of sex offenders. [Appellant] was advised,
and acknowledged on the record that, 1) he is being classified as a
Tier II Sex Offender (emphasis in original); 2) as a Tier II Sex
Offender he is subject to registration every one hundred eighty
(180) days for twenty-five (25) years (emphasis in original); and, 3)
that his failure to comply with the terms and conditions of registration
could result in new felony charges for which an additional prison term
could be imposed.
* * * *.
{¶5} On August 29, 2012, the trial court entered an Entry Nunc Pro Tunc
imposing prison terms of four years each upon counts Counts I through IV and prison
terms of five years each upon Counts V through VIII. Counts I, II, III, and IV are to be
served concurrently with each other [4 years total]. The terms for Counts V and VI are to
be served concurrently to each other but consecutively to the terms imposed in Counts I
through IV [5 years total]. The periods imposed upon Counts VII and VIII are to be served
concurrently to each other but consecutively to the terms imposed for Counts 1 through
IV and Counts V and VII [5 years total]. Appellant’s aggregate prison term is thus 14
years.
{¶6} Appellant did not file any direct appeal from his convictions and sentences.
{¶7} On April 6, 2015, appellant filed a Motion to Correct Sentence arguing the
trial court failed to make required findings of fact to impose consecutive sentences
pursuant to R.C. 2929.14(C) and failed to determine whether the convictions represented
allied offenses of similar import pursuant to R.C. 2941.25. Appellee responded with a
Muskingum County, Case No. CT2015-
0029 5
motion in opposition. The trial court denied appellant’s motion by entry dated May 14,
2015.
{¶8} Appellant now appeals from the trial court’s judgment entry overruling his
motion to correct sentence.
{¶9} Appellant raises five assignments of error:
ASSIGNMENTS OF ERROR
{¶10} “I. THE DEFENDANT-APPELLANT’S PLEA WAS NOT A KNOWING,
INTELLIGENT AND VOLUNTARY PLEA CONTRARY TO OHIO LAW AND THE STATE
AND FEDERAL CONSTITUTIONS.”
{¶11} “II. THE DEFENDANT-APPELLANT WAS DEPRIVED OF THE
EFFECTIVE ASSISTANCE OF COUNSEL CONTRARY TO THE STATE AND FEDERAL
CONSTITUTIONS.”
{¶12} “III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
DID NOT STATE ITS FINDINGS FOR ORDERING CONSECUTIVE SENTENCES
PURSUANT TO R.C. 2929.14(C)(4) AND THUS, THE SENTENCE WAS NOT
AUTHORIZED BY LAW.”
{¶13} “IV. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT
WHEN IT FAILED TO MERGE THE PANDERING OBSCENITY COUNTS AS ALLIED
OFFENSES OF SIMILAR IMPORT IN VIOLATION OF R.C. 2941.25(A) AND THE
DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED
STATES CONSITUTION AND ARTICLE 1 SECTION 10 OF THE OHIO
CONSTITUTION.”
Muskingum County, Case No. CT2015-
0029 6
{¶14} “V. THE TRIAL COURT ERRED WHEN IT SENTENCED APPELLANT
UNDER AM.SUB. S.B. NO. 10 (THE ADAM WALSH ACT) INSTEAD OF UNDER
MEGAN’S LAW.”
ANALYSIS
I.
{¶15} In his first assignment of error, appellant summarily asserts his counseled,
negotiated pleas of guilty to the bill of information were not knowing, intelligent, and
voluntary because “* * * he was being advised for the first time by an attorney on the day
he entered his guilty pleas * * *,” a fact which even if true is outside the record.
{¶16} Appellant implies his lack of access to counsel and counsel's allegedly
deficient performance prevented his pleas from being knowing, intelligent, or voluntary.
These arguments depend on evidence outside the record and are not appropriate for
review on direct appeal; the proper vehicle for appellant to raise these arguments would
have been in a petition for post-conviction relief under R.C. 2953.21. State v. Cooperrider,
4 Ohio St.3d 226, 228, 448 N.E.2d 452 (1983) (per curiam). See, State v. Tate, 5th Dist.
Richland No. 15-CA-40, 2015-Ohio-3859, ¶ 16, appeal not allowed, 144 Ohio St.3d 1411,
2015-Ohio-4947, 41 N.E.3d 448.
{¶17} The trial court did not treat appellant’s motion to correct sentence as a
petition for post-conviction relief. Even if we were inclined to do so, the pertinent
jurisdictional time requirements for such a petition are set forth in R.C. 2953.21(A)(2) as
follows: “ * * * A petition under division (A)(1) of this section shall be filed no later than
one hundred eighty 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
Muskingum County, Case No. CT2015-
0029 7
is taken, except as otherwise provided in section 2953.23 of the Revised Code, the
petition shall be filed no later than one hundred eighty days after the expiration of the time
for filing the appeal.” Appellant did not timely file the motion to correct sentence under
R.C. 2953.21(A)(2) and makes no attempt to justify an untimely filing pursuant to the
requirements set forth in R.C. 2953.23(A). A court has no jurisdiction to hear an untimely
petition for post-conviction relief unless the movant meets the requirements in R.C.
2953.23(A). State v. Walker, 5th Dist. Delaware No. 12 CAA 02 0010, 2012-Ohio-3095,
¶ 13, citing State v. Demastry, Fairfield App. No. 05CA14, 2005–Ohio–4962, ¶ 15.
{¶18} Appellant’s first assignment of error is without merit. See, State v. Whitaker,
4th Dist. Scioto No. 10CA3349, 2011-Ohio-6923; State v. Young, 10th Dist. Franklin No.
10AP-292, 2010-Ohio-5873.
{¶19} Appellant’s first assignment of error is overruled.
II., III., IV., V.
{¶20} Appellant’s second through fifth assignments of error will be considered
together. He asserts he received ineffective assistance of counsel; the consecutive
sentences of the trial court did not comply with R.C. 2929.14(C); his convictions are allied
offenses of similar import; and he should not have been classified as a tiered sex offender
despite his specific request that the trial court do so. Appellant’s argument on each count
is barred by res judicata.
{¶21} Appellant failed to file a direct appeal of his convictions and sentences. He
now bootstraps a number of issues to an appeal from his “motion to correct sentence.”
Those arguments could and should have been raised upon direct appeal and are now
barred. “Under the doctrine of res judicata, a final judgment of conviction bars the
Muskingum County, Case No. CT2015-
0029 8
defendant from raising and litigating in any proceeding, except an appeal from that
judgment, any defense or any claimed lack of due process that the defendant raised or
could have raised at the trial which resulted in that judgment of conviction or on appeal
from that judgment.” State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967); State v.
Szefcyk, 77 Ohio St.3d 93, 1996–Ohio–337, 671 N.E.2d 233, syllabus. The issues raised
by appellant in his motion to correct the sentence and in the instant appeal are all issues
cognizable on direct appeal from his judgment of conviction and sentence, and appellant's
collateral attack on the judgment on these grounds is barred by res judicata.
{¶22} We also note appellant entered negotiated pleas of guilty to a jointly-
recommended sentence. As we have previously recognized, appellant may not have
been entitled to appellate review of his sentence based on R.C. 2953.08(D)(1), which
provides: “A sentence imposed upon a defendant is not subject to review under this
section if the sentence is authorized by law, has been recommended jointly by the
defendant and the prosecution in the case, and is imposed by a sentencing judge.” State
v. Guiley, 5th Dist. Stark No. 2013CA00211, 2014-Ohio-2035, ¶ 9.
{¶23} Nonetheless, appellant’s motion to correct sentence constitutes a collateral
attack upon his convictions. To allow a defendant to collaterally attack a judgment on
grounds he could have raised on direct appeal if they had not barred by R.C.
2953.08(D)(1) would render that statute a nullity. Guiley, supra, 2014-Ohio-2035 at ¶ 11.
See also, State v. Stevenson, 9th Dist. Summit No. 21953, 2005-Ohio-156, ¶¶ 5-8
[appealing sex offender classification from “motion to correct sentence” barred by res
judicata when classification not challenged upon direct appeal]; State v. Jones, 5th Dist.
Richland No. 12CA22, 2012-Ohio-4957, ¶ 23, citing State v. Barfield, 6th Dist. No. Nos.
Muskingum County, Case No. CT2015-
0029 9
L–06–1262, L–06–1263, 2007–Ohio–1037, ¶ 6 [appellant's argument regarding allied
offenses could have been raised on direct appeal from the trial court's sentencing entry
and res judicata applies even though appellant never pursued a direct appeal].
{¶24} Appellant’s second, third, fourth, and fifth assignments of error are
overruled.
CONCLUSION
{¶25} Appellant’s five assignments of error are overruled and the judgment of the
Muskingum County Court of Common Pleas is affirmed.
By: Delaney, J. and
Gwin, P.J.
Baldwin, J., concur.