State v. Mason , 2022 Ohio 2443 ( 2022 )

[Cite as State v. Mason, 2022-Ohio-2443.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Earle E. Wise, Jr., P. J.
Plaintiff-Appellee Hon. W. Scott Gwin, J.
Hon. John W. Wise, J.
-vs-
Case No. CT2022-0020
TROY A. MASON
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. CR2017-0129
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 14, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellee
RONALD L. WELCH TROY MASON
PROSECUTING ATTORNEY PRO SE
TAYLOR P. BENNINGTON 15708 McConnelsville Road
ASSISTANT PROSECUTOR Caldwell, Ohio 43724
27 North Fifth Street, P.O. Box 189
Zanesville, Ohio 43701
Muskingum County, Case No. CT2022-0020 2
Wise, John, J.
{¶1} Defendant-Appellant Troy A. Mason appeals from the March 3, 2022,
decision of the Muskingum County Court of Common Pleas, denying his Motion to
Correct an Illegal Sentence.
{¶2} Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} The relevant facts leading to this appeal are as follows.
{¶4} Between July 2014 and December 2016, Appellant Mason was charged and
convicted in eight misdemeanor cases filed in the Zanesville Municipal Court.
Throughout the various arrests, processing, and prosecution stages of these
misdemeanor cases, Appellant pretended to be his brother, Robert Mason. Appellant
accordingly signed certain complaints, jail records, affidavits, and guilty plea forms with
Robert's name. Appellant later confessed to law enforcement officials that he had used
his brother's name in this fashion.
{¶5} On March 29, 2017, Appellant Mason was indicted by the Muskingum
County Grand Jury on eight (8) felony counts of tampering with records, in violation of
R.C. §2913.42(A)(1), and twenty-five (25) felony counts of forgery, in violation of R.C.
§2913.31(A)(2). Appellant pled not guilty, and the matter proceeded to a jury trial on
August 29, 2017. Prior to going forward, the State dismissed Count 30, one of the forgery
counts.
{¶6} After hearing the evidence and arguments, the jury found Appellant guilty
of twenty-four (24) counts of forgery and eight (8) counts of tampering with records.
Muskingum County, Case No. CT2022-0020 3
{¶7} On September 8, 2017, Appellant filed a Crim.R. 29(C) motion for acquittal
after the verdict, which the trial court denied via a judgment entry on September 11,
2017.
{¶8} At sentencing, the State and Appellant stipulated to merger of offenses as
follows:
Count 1 (tampering with records) was merged with Counts 2, 3, 4, 5,
and 6 (all forgery).
Count 7 (tampering with records) was merged with Counts 8, 9, and
10 (all forgery).
Count 11 (tampering with records) was merged with Counts 12, 13,
14, and 15 (all forgery).
Count 16 (tampering with records) was merged with Counts 17, 18
and 19 (all forgery).
Count 20 (tampering with records) was merged with Counts 21, 22,
23, 24, and 25 (all forgery).
Count 26 (tampering with records) was merged with Counts 27 and
28 (both forgery).
Count 29 (tampering with records) was merged with Count 31
(forgery).
Count 32 (tampering with records) was merged with Count 33
(forgery).
{¶9} Although the State and Appellant proposed a jointly recommended
sentence of five (5) years in prison, the trial court rejected same and by Judgment Entry
Muskingum County, Case No. CT2022-0020 4
filed October 10, 2017, sentenced Appellant to serve eight (8) consecutive eighteen (18)
month terms, for an aggregate prison sentence of twelve (12) years. A nunc pro tunc
sentencing entry, correcting a scrivener’s error, was issued on October 25, 2017.
{¶10} On November 9, 2017, Appellant appealed to this Court, which by Opinion
and Entry filed August 27, 2018, upheld his convictions and sentence and affirmed the
judgment of the trial court. See State v. Troy A. Mason, 5th Dist. Muskingum County No.
CT2017-0083, 2018-Ohio-3329.
{¶11} On October 23, 2018, Appellant filed an application to reopen pursuant to
App.R. 26(B).
{¶12} On January 14, 2019, this Court denied said application.
{¶13} On January 25, 2019, Appellant filed a motion for reconsideration.
{¶14} On April 15, 2019, this Court denied Appellant's motion.
{¶15} On May 22, 2019, Appellant filed a notice of appeal to the Ohio Supreme
Court.
{¶16} On October 3, 2019, Appellant's motion was denied, and the Supreme
Court declined to accept jurisdiction.
{¶17} On February 28, 2022, Appellant filed a motion to correct an illegal sentence
with the trial court.
{¶18} On March 3, 2022, the trial court denied Appellant's motion.
{¶19} Appellant now appeals, raising the following errors for review:
ASSIGNMENTS OF ERROR
{¶20} “I. TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT’S
“MOTION TO CORRECT AN ILLEGAL SENTENCE.
Muskingum County, Case No. CT2022-0020 5
{¶21} “II. TRIAL COURT ERRED IN FAILING TO CORRECT DEFENDANT-
APPELLANT’S ILLEGAL SENTENCES AS FELONIES IN VIOLATION OF R.C.
2913.42(A)(1) FOR COUNTS 1, 7, 11, 16, 20, 26, 29 AND 32. THE CASE NUMBERS
FOR THE AFOREMENTIONED COUNTS ARE FOR MISDEMEANORS.”
I., II.
{¶22} In his two Assignments of Error, Appellant argues the trial court erred in
denying his motion to correct an illegal sentence. We disagree.
{¶23} Appellant's motion to correct his sentence is actually a petition for post-
conviction relief under R.C. §2953.21. Where a criminal defendant, subsequent to direct
appeal, files a motion seeking to vacate or correct his sentence on the basis that his
constitutional rights were violated, such a motion is a petition for post-conviction relief
under R.C. §2953.21. State v. Reynolds, 79 Ohio St.3d 158, 160, 679 N.E.2d 1131,
1997-Ohio-304.
{¶24} R.C. §2953.21 provides a petition for post-conviction relief must be filed no
later than 180 days after the date on which the trial transcript is filed in the Court of
Appeals in the direct appeal, or if no appeal is taken, no later than 180 days after the
expiration of the time for filing the appeal.
{¶25} Here, Appellant pursued his direct appeal in November, 2017. His
motion/petition was filed more than four years later. A trial court has no jurisdiction to
hear an untimely petition for post-conviction relief unless the movant meets requirements
set out in R.C. §2953.23(A). State v. Walker, 5th Dist. No. 12–CAA–020010, 2012–Ohio–
3095, citing State v. Demastry, 5th Dist. No. 05CA–14, 2005–Ohio–4962 ¶ 15.
Muskingum County, Case No. CT2022-0020 6
{¶26} Furthermore, 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, other than a direct appeal from the judgment, any defense
or lack of due process that was raised or could have been raised at the trial which
resulted in the judgment of conviction, or on appeal from that judgment. State v. Szefcyk,
77 Ohio St.3d 93, 1996–Ohio–337, 671 N.E.2d 233, syllabus.
{¶27} Upon review, we find that the issues raised by Appellant in his motion to
correct his sentence and in the instant appeal are issues which were 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. State v. Perry (1967), 10
Ohio St.2d 175, 226 N.E.2d 104, paragraph nine of the syllabus. Appellant could have
raised the claimed error in the sentencing entry in his direct appeal, but failed to do so.
{¶28} Accordingly, Appellant's Assignments of Error are overruled.
{¶29} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Muskingum County, Ohio, is hereby affirmed.
By: Wise, John, J.
Wise, Earle, P. J., and
Gwin, J., concur.
JWW/kw 0712