State v. Jones ( 2012 )

[Cite as State v. Jones, 2012-Ohio-5672.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Sheila G. Farmer, J.
-vs- :
:
ROBERT E. JONES : Case No. 12CA0061
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 87CR16767
JUDGMENT: Affirmed
DATE OF JUDGMENT: December 3, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
EARL L. FROST ROBERT E. JONES, PRO SE
20 South second Street P.O. Box 5500
4th Floor Chillicothe, OH 45601
Newark, OH 43055
LIcking County, Case No. 12CA0061 2
Farmer, J.
{¶1} On March 17, 1988, appellant, Robert Jones, pled guilty to three counts of
rape with specifications in violation of R.C. 2907.02 and 2941.14.2. By judgment entry
filed same date, the trial court sentenced appellant to an indeterminate term of ten to
twenty-five years on each count, to be served consecutively.
{¶2} On March 13, 2012, appellant filed a motion for resentencing, claiming his
three rape convictions should have been merged for sentencing. By judgment entry
filed June 20, 2012, the trial court treated the motion as a motion for postconviction
relief, and denied the motion as untimely and barred by the doctrine of res judicata.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶4} "WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN
APPLYING THE DOCTRINE OF RES JUDICATA."
II
{¶5} "WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN
SENTENCING APPELLANT TO CONTRARIAN LAW."
III
{¶6} "WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING
TO MERGE SENTENCES."
I, II, III
{¶7} Appellant claims the trial court erred in denying his motion for
resentencing. We disagree.
LIcking County, Case No. 12CA0061 3
{¶8} On March 17, 1988, appellant pled guilty to three counts of rape and was
sentenced to an indeterminate term of ten to twenty-five years on each count, to be
served consecutively. Appellant did not appeal his sentence.
{¶9} On March 13, 2012, appellant filed a motion for resentencing, claiming his
three rape convictions should have been merged for sentencing. By judgment entry
filed June 20, 2012, the trial court treated the motion as a motion for postconviction
relief pursuant to State v. Schlee, 117 Ohio St.3d 153 (2008), and State v. Williams, 9th
Dist. No. 25879, 2011-Ohio-6141. The trial court denied the motion as untimely and
barred by the doctrine of res judicata.
{¶10} R.C. 2953.21 governs petition for postconviction relief. Subsection (A)(2)
states the following:
{¶11} Except as otherwise provided in section 2953.23 of the Revised
Code, 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 or, if the direct appeal involves a sentence of
death, the date on which the trial transcript is filed in the supreme court. 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 one hundred eighty
days after the expiration of the time for filing the appeal.
LIcking County, Case No. 12CA0061 4
{¶12} Appellant filed his motion almost twenty-four years after the expiration of
the time for filing an appeal, and has not met any of the requirements for untimely filing
under R.C. 2953.23(A). Therefore, the trial court was correct in determining appellant's
motion was untimely.
{¶13} In addition, appellant's arguments are barred by the doctrine of res
judicata. As stated by the Supreme Court of Ohio in State v. Perry, 10 Ohio St.2d 175(1967), paragraphs eight and nine of the syllabus, the doctrine of res judicata is
applicable to petitions for postconviction relief. The Perry court explained the doctrine
at 180-181 as follows:
{¶14} Under the doctrine of res judicata, a final judgment of conviction
bars a convicted defendant who was represented by counsel 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 trial, which resulted in that judgment of
conviction, or on an appeal from that judgment.
{¶15} In reviewing appellant's motion for resentencing, we find the arguments
therein could have been raised on direct appeal.
{¶16} Upon review, we find the trial court did not err in denying appellant's
motion for resentencing.
{¶17} Assignments of Error I, II, and III are denied.
LIcking County, Case No. 12CA0061 5
{¶18} The judgment of the Court of Common Pleas of Licking County, Ohio is
hereby affirmed.
By Farmer, J.
Delaney, P.J. and
Wise, J. concur.
_s/ Sheila G. Farmer_______________
_s/ Patricia A. Delaney_____________
_s/ John W. Wise_________________
JUDGES
SGF/db 1120
[Cite as State v. Jones, 2012-Ohio-5672.]
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
ROBERT E. JONES :
:
Defendant-Appellant : CASE NO. 12CA0061
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Licking County, Ohio is affirmed. Costs to
appellant.
_s/ Sheila G. Farmer_______________
_s/ Patricia A. Delaney_____________
_s/ John W. Wise_________________
JUDGES