State v. Lester , 2012 Ohio 135 ( 2012 )

[Cite as State v. Lester, 2012-Ohio-135.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
AUGLAIZE COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 2-11-20
v.
STEPHEN M. LESTER, OPINION
DEFENDANT-APPELLANT.
Appeal from Auglaize County Common Pleas Court
Trial Court No. 2006-CR-06
Judgment Affirmed
Date of Decision: January 17, 2012
APPEARANCES:
Stephen M. Lester, Appellant
Edwin Pierce and Amy Otley-Beckett for Appellee
Case No. 2-11-20
ROGERS, J.
{¶1} Defendant-Appellant, Stephen M. Lester (“Lester”), appeals the
judgment of the Court of Common Pleas of Auglaize County denying his “Motion
to Correct Status of Illegal Sentence” (“Motion to Correct”). On appeal, Lester
contends that the trial court erred in denying his Motion to Correct as his sentence
is unauthorized by law. Lester argues that his convictions for attempted felonious
assault and abduction are allied offenses, and because the trial court failed to
merge the sentences, his sentence is void. Finding that the trial court did not err as
the issue is an untimely motion for post-conviction relief and is barred by the
doctrine of res judicata, we affirm the judgment of the trial court.
{¶2} In January 2006, the Auglaize County Grand Jury entered a five count
indictment against Lester. In May 2006, the matter proceeded to a jury trial during
which Lester was found guilty on: Count Two, abduction in violation of R.C.
2905.02(A)(1), a felony of the third degree; Count Three, theft in violation of R.C.
2913.02(A)(1), a felony of the fifth degree; Count Four, attempted felonious
assault in violation of R.C. 2923.02(A) and R.C. 2903.11(A)(1), a felony of the
third degree; and, Count Five, aggravated menacing in violation of R.C.
2903.21(A), a misdemeanor of the first degree. Thereafter, Lester was sentenced
in pertinent part to five years’ incarceration on Count Two and three years’
incarceration on Count Three, to be served concurrently.
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{¶3} Lester appealed to this Court, and we affirmed in part and reversed in
part, based upon an inconsistency between the court’s oral notification at the
sentencing hearing and its written notification in its sentencing entry regarding
post-release control. State v. Lester, 3d Dist. No. 2-06-31, 2007-Ohio-4239. Due
to this inconsistency, we found that Lester’s sentences for his felony convictions
were void and remanded the case to the trial court for re-sentencing.
{¶4} While this appeal was pending, Lester filed a petition for post-
conviction relief based upon allegations of ineffective assistance of counsel. The
trial court denied this petition as untimely filed, and this Court subsequently
affirmed that decision. State v. Lester, 3d Dist. No. 2-07-23, 2007-Ohio-5627,
appeal not accepted, 117 Ohio St.3d 1439, 2008-Ohio-1279, 883 N.E.2d 457.
{¶5} On August 30, 2007, the trial court conducted a new sentencing
hearing and once again sentenced Lester to an aggregate prison term of eight
years. This re-sentencing was journalized on September 10, 2007. Lester also
appealed that decision to this Court, asserting that his resentencing was
inappropriate under State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d
470. We affirmed. State v. Lester, 3d Dist. No. 2-07-34, 2008-Ohio-1148, appeal
not accepted, 119 Ohio St.3d 1413, 2008-Ohio-3880, 891 N.E.2d 771.
{¶6} On April 1, 2008, Lester filed a second petition for post-conviction
relief, which the trial court denied. Lester appealed this decision, and we
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affirmed. State v. Lester, 3d Dist. No. 2-08-24 (May 11, 2009), appeal not
accepted, 122 Ohio St.3d 1524, 2009-Ohio-4776, 913 N.E.2d 459. Thereafter, on
April 5, 2010, the trial court filed a nunc pro tunc entry to its re-sentencing entry
of September 2007, to correct an omission in the entry regarding Lester’s means of
conviction. Lester filed a notice of appeal of the nunc pro tunc entry, which this
Court dismissed because a nunc pro tunc is not an appealable judgment as it
applies retrospectively to the judgment it is meant to correct. State v. Lester, 3d
Dist. No. 2-10-20 (May 12, 2010). Lester filed a motion with this Court to certify
a conflict between our May 12, 2010 judgment and another judgment rendered by
the Sixth Appellate District. We agreed with Lester that a conflict existed and
certified the case to the Ohio Supreme Court. The Supreme Court affirmed our
judgment on appeal. State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958
N.E.2d 142.
{¶7} In addition to appealing the trial court’s nunc pro tunc entry, Lester
filed a motion in the trial court on April 19, 2009, for a new sentencing hearing
and a final appealable order. In his memorandum in support of this motion, Lester
claimed that his 2007 re-sentence was void because the trial court failed to comply
with R.C. 2929.19(A)(1) by not informing him of the verdict of the jury. The trial
court overruled Lester’s motion on April 28, 2010. Lester appealed the decision
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of the trial court, and we again affirmed the judgment of the trial court. State v.
Lester, 3d Dist. No. 2-10-23, 2010-Ohio-6066.
{¶8} In December 2010, Lester filed a “Motion to Vacate Judgment of
Conviction” arguing that the offense of attempted felonious assault was not a
cognizable offense under Ohio law. The trial court denied the motion and Lester
filed an appeal. While this appeal was pending, Lester filed the Motion to Correct
in the instant matter, arguing that his sentence was illegal and void as the
attempted felonious assault conviction and abduction conviction are allied
offenses and the sentences should have merged. The trial court denied the motion.
It is from this judgment Lester appeals, assigning the following as error for our
review.
Assignment of Error No. I
THE TRIAL COURT COMMITTED AN ERROR OF LAW
WHEN IT DID NOT GRANT MR. LESTER’S “MOTION TO
CORRECT STATUS OF ILLEGAL SENTENCE.”
{¶9} In his sole assignment of error, Lester contends that his sentence is
unlawful and void as the trial court failed to merge the sentences for the attempted
felonious assault conviction and the abduction conviction. Lester argues that the
failure to merge allied offenses results in a void sentence according to State v.
Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, and is not subject
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to the doctrine of res judicata according to State v. Fischer, 128 Ohio St.3d 92,
2010-Ohio-6238, 942 N.E.2d 332.
{¶10} We fail to reach the merits of Lester’s appeal as it is an untimely
motion for post-conviction relief and, alternatively, it is barred by the doctrine of
res judicata.
{¶11} Revised Code 2953.21 prescribes the means for a defendant to obtain
post-conviction relief and provides in pertinent part:
(A)(1)(a) Any person who has been convicted of a criminal
offense or adjudicated a delinquent child 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 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.
***
(2) * * * a petition filed 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 is taken, * * * the petition shall be filed no later than
one hundred eighty days after the expiration of the time for
filing an appeal. R.C. 2953.21(A)
{¶12} Here, Lester’s Motion to Correct is properly construed as a petition
for post-conviction relief. State v. Holdcroft, 3d Dist. No. 16-06-07, 2007-Ohio-
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Case No. 2-11-20
586, ¶ 11; State v. Turrentine, 3d Dist. No. 1-10-40, 2010-Ohio-4826, ¶ 5; State v.
Wyerick, 3d Dist. No. 10-07-23, 2008-Ohio-2257; State v. Gibson, 8th Dist. No.
96117, 2011-Ohio-3074, ¶ 35. Since the underlying motion and the appeal were
filed after the time for a direct appeal had passed, claim a denial of rights, and seek
to void the judgment of sentence, they constitute a petition for post-conviction
relief. Holdcroft, citing State v. Reynolds, 79 Ohio St.3d 158, 679 N.E.2d 1131(1997). As his direct appeal was filed with this Court in 2006, the 180-day time
limit has passed and his motion for post-conviction relief is deemed untimely.
{¶13} Furthermore, motions for post-conviction relief will be barred by the
doctrine of res judicata if they raise on appeal an issue that could have been raised
or was raised on direct appeal. State v. Wilson, 3d Dist. No. 1-08-60, 2009-Ohio-
1735, ¶ 15, citing Reynolds.
“‘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 * * * on an appeal from that judgment.’” State v.
Troglin, 3d Dist. No. 14-09-04, 2009-Ohio-5276, ¶ 13, quoting
State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104(1967), paragraph nine of the syllabus. “[R]es judicata promotes
the principles of finality and judicial economy by preventing
endless relitigation of an issue on which a defendant has already
received a full and fair opportunity to be heard.” State v.
Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, ¶ 18, 846 N.E.2d
824, citing State ex rel. Willys-Overland Co. v. Clark, 112 Ohio St.
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263, 268, 147 N.E. 33 (1925). State v. Schwieterman, 3d Dist. No.
10-09-12, 2010-Ohio-102, ¶ 23.
{¶14} It is the practice of this Court to hold that the issue of allied offenses
raised in post-conviction relief motions are barred by the doctrine of res judicata
as the proper time to raise it is on the direct appeal. State v. Harlow, 3d Dist. No.
14-04-23, 2005-Ohio-959, ¶ 7-12; State v. Wilhite, 3d Dist. No. 14-06-16, 2007-
Ohio-116, ¶ 16; Turrentine, 3d Dist. No. 1-10-40, 2010-Ohio-4826, ¶ 5. See
Wyerick, 3d Dist. No. 10-07-23, 2008-Ohio-2257 (holding that the issue of
ineffective assistance of counsel for failure to argue that sexual battery and
abduction were allied offenses of similar import was barred by res judicata as it
could have been raised on direct appeal). Other districts follow the same practice.
State v. Payton, 5th Dist. No. 2010CA00276, 2011-Ohio-4386, ¶ 23; State v.
Poole, 8th Dist. No. 94759, 2011-Ohio-716, ¶ 15; State v. Freeman, 11th Dist. No.
2010-T-0069, 2011-Ohio-2457; State v. Carter, 12th Dist. Nos. CA2010-07-012,
CA2010-08-016, 2011-Ohio-414, ¶ 11.
{¶15} Accordingly we find that Lester’s appeal is an untimely motion for
post-conviction relief and is barred by the doctrine of res judicata. We overrule
Lester’s sole assignment of error.
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{¶16} Having found no error prejudicial to the Appellant herein, in the
particular assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.
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