State v. Rodriguez , 2016 Ohio 1090 ( 2016 )

[Cite as State v. Rodriguez, 2016-Ohio-1090.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plantiff-Appellee, : No. 15AP-953
(C.P.C. No. 94CR04-2488)
v. :
(REGULAR CALENDAR)
Julio Rodriguez, :
Defendant-Appellant. :
D E C I S I O N
Rendered on March 17, 2016
On brief: Ron O'Brien, Prosecuting Attorney, and Michael P.
Walton, for appellee.
On brief: Julio Rodriguez, pro se.
APPEAL from the Franklin County Court of Common Pleas
TYACK, J.
{¶ 1} Julio Rodriguez is appealing from the ruling of the Franklin County Court of
Common Pleas in what was deemed to be a petition for postconviction relief. He assigns
four assignments of error for our consideration:
[I.] The Trial Court erred and abused its discretion by
denying Defendant's clearly defined Motion to Correct and
Illegal Conviction and Sentence based on Void Judgment
Contrary to Law; as an untimely Petition for Postconviction
relief.
[II.] It is prejudicial error, an abuse of discretion and extreme
judicial misconduct for a Judge to preside over criminal
proceedings; and comment about nature of evidence and
witnesses, and generally show bias and prejudice against
Defendant; to ignore grounds for mistrial including
prosecution's withholding of exculpatory evidence,
No. 15AP-953 2
intimidating defense counsel and strong arm tactics; violation
of separation of witnesses; improper Howard Charge; and
failure to maintain presumption of innocence for Defendant
in front of Jury. Lastly, at sentencing, Judge O'Neill showing
clear bias, prejudice and lack of impartiality by stating on the
Record, "I am notifying the Adult Parole Authority that I do
not recommend that you be released on parole." Moreover,
the Sentence was improper, without the benefit of a PSI,
Judge O'Neill sentence Defendant to Seven (7) consecutive
Life Sentences. The right of an accused to be tried by a fair
and impartial Judge is a basic right of due process. See Tumey
v. Ohio, 273 U.S. 510 (1927); In Re Murchison, 349 U.S. 133
(1955); Ward v. Village of Monroeville, 409 U.S. 57 (1972).
[III.] The Defendant's Convictions and Sentence are not
supported by credible evidence and were tainted by
prosecutorial misconduct and ineffective assistance of trial
counsel; preventing Defendant from receiving due process
and depriving him of a fair proceedings, and created a
fundamental miscarriage of Justice which presents an
extraordinary case of a constitutional violation as he is
actually innocent, mandating relief at this time.
[IV.] The Trial Court erred and abused its discretion by
running Appellant's sentences consecutively; without
establishing a need for consecutive sentences under the
mandate of the felony sentencing statues and the specific
provisions of O.R.C. Section 2929.14 (E)(4). Moreover, one of
the pivotal issues on appeal herein; whether trial courts need
to make consecutive sentencing findings as required and place
them in the Judgment Entry, is currently before the Ohio
Supreme Court on a Certified Conflict. See State v. Sergent,
143 Ohio St. 3d 1476, 2015 Ohio 3958, 38 N.E.2d 898 (2015).
Accordingly, this case may be stayed pending a Decision by
the Ohio Supreme Court. Nevertheless, the errors herein were
apparent; it was error and an abuse of discretion, in and of
itself, for trial court to deny Motion to Correct without any
real review.
(Sic passim.)
{¶ 2} Rodriguez was found guilty of seven rape charges in 1995. He pursued a
direct appeal. A panel of this court affirmed the conviction and accompanying life
sentences.
No. 15AP-953 3
{¶ 3} Rodriguez has filed a number of petitions for postconviction relief. None of
them has changed his conviction or sentence.
{¶ 4} The most recent filing by Rodriguez occurred in 2015. The trial court judge
now assigned to his case deemed the filing to be an untimely petition for postconviction
relief and denied relief. Rodriguez has once again appealed.
{¶ 5} The trial court judge originally assigned to Rodriguez's case has now retired
to private life. Any complaints Rodriguez has or had about the judge were or should have
been addressed in prior court proceedings. Everything Rodriguez now complains about
was before this appellate court 20 years ago. The doctrine of res judicata clearly applies.
What was or should have been decided 20 or more years ago cannot and should not be
overturned now.
{¶ 6} The second, third, and fourth assignments of error are overruled.
{¶ 7} Changing the title on a piece of paper filed with a court does not change the
nature or the essence of the paper. The content of the piece of paper tells the court what
the filing is. There is no serious dispute that Rodriguez is seeking relief from his multiple
convictions many years after the convictions became fact. He is seeking postconviction
relief.
{¶ 8} The vehicle he is using to seek postconviction relief he now titles as a
motion. His motion asks, or petitions, the trial court for relief. It is, in reality a petition for
postconviction relief.
{¶ 9} The Ohio legislature has placed strict limits on the time for the filing for
postconviction relief. Rodriguez is well beyond the time the legislature has allocated for
such filings.
{¶ 10} The trial court judge who reversed the "Motion to Correct an Illegal
Conviction and Sentence based on Void Judgment Contrary to law" was correct to
consider it a form of petition for postconviction relief and was correct to find it to be
untimely.
{¶ 11} The first assignment of error is overruled.
No. 15AP-953 4
{¶ 12} All four assignments of error having been overruled, the judgment of the
trial court is affirmed.
Judgment affirmed.
BROWN and HORTON, JJ., concur.
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