State v. Knowles , 2016 Ohio 2859 ( 2016 )

[Cite as State v. Knowles, 2016-Ohio-2859.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 15AP-991
v. : (C.P.C. No. 04CR-4891)
Alawwal A. Knowles, : (ACCELERATED CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on May 5, 2016
On brief: Ron O'Brien, Prosecuting Attorney, and Seth L.
Gilbert, for appellee.
On brief: Alawwal A. Knowles, pro se.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Defendant-appellant, Alawwal A. Knowles, appeals from a judgment of the
Franklin County Court of Common Pleas, which overruled appellant's "Motion to Correct
Void Sentence and Order A New Sentencing Hearing" based on res judicata. For the
following reasons, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On July 23, 2004, a grand jury indicted appellant on 13 counts of attempted
murder with specifications, 13 counts of felonious assault with specifications, and 2
counts of failure to comply with an order or signal of a police officer. Appellant,
represented by counsel, pled guilty on July 12, 2005 to 2 counts of felonious assault and 3
counts of attempted murder with firearm specifications, and the court entered a nolle
No. 15AP-991 2
prosequi on the remaining counts. The prosecutor and defense did not jointly
recommend a sentence, and a presentencing investigation report was ordered.
{¶ 3} On September 15, 2005, the trial court sentenced appellant to 39 years of
prison, reflecting 9 years on the 3 gun specifications in addition to an aggregate 30-year
term on the 5 counts, each which involved a separate victim. Appellant filed a notice of
appeal on December 9, 2005. This court denied leave for delayed appeal, and the
Supreme Court of Ohio subsequently declined to review the matter. Appellant filed a
second notice of appeal on July 20, 2006, which this court again denied.
{¶ 4} Appellant filed a series of motions three years later. On March 7, 2008,
appellant filed with the trial court a motion to withdraw his guilty plea, which the trial
court denied on January 19, 2010. Appellant filed a notice of appeal of that decision on
February 9, 2010, and he was appointed counsel. In State v. Knowles, 10th Dist. No.
10AP-119, 2011-Ohio-4477, this court issued a decision affirming the trial court decision.
In doing so, we addressed appellant's allegations regarding inadequate notification of
post-release control.
{¶ 5} Prior to resolution of that appeal, on June 29, 2010, appellant filed with the
trial court a motion to vacate sentence, and, on September 30, 2011, filed a motion for
correction of sentence, which the trial court denied on November 22, 2011. In doing so,
the trial court construed the motion as an untimely petition for postconviction relief and
held that resolution of the merits of the issue was barred by res judicata.
{¶ 6} On December 4, 2012, appellant filed a second motion to vacate sentence
with the trial court, which the trial court again denied. Appellant filed his third motion to
vacate sentence with the trial court on August 19, 2013, citing the trial court's alleged
failure to sentence, pursuant to statutory guidelines and incorrect imposition of
maximum and consecutive sentences, among other issues. The trial court denied the
motion on September 6, 2013. Appellant filed a notice of appeal of this decision on
October 2, 2013, but this court dismissed the appeal for failure to file a brief.
{¶ 7} On May 5, 2014, appellant filed an application to reopen his appeal,
pursuant to App.R. 26(B), which this court denied on July 8, 2014. In our decision, we
addressed appellant's assignment of error that "appellate counsel performed deficiently
by failing to challenge the trial court's imposition of the 'maximum sentence' " and noted
No. 15AP-991 3
that "appellate counsel did challenge to the propriety of appellant's sentence in his prior
appeal to this court." State v. Knowles, 10th Dist. No. 10AP-119 (July 8, 2014)
(memorandum decision). Accordingly, we overruled appellant's assignment of error. The
Supreme Court declined to accept jurisdiction over appellant's ensuing appeal.
{¶ 8} Appellant filed the motion at the root of the present appeal, entitled
"Motion to Correct Void Sentence and Order A New Sentencing Hearing," on
September 22, 2015. The trial court overruled appellant's motion as a sentencing
challenge "clearly barred by res judicata" in light of appellant's numerous previous
motions regarding vacating his sentence, all which lacked merit, and this court's prior
judgments. (Oct. 8, 2015 Decision, 2.) Appellant filed a timely appeal of the trial court's
latest motion denial.
II. ASSIGNMENT OF ERROR
{¶ 9} Appellant assigns the following assignment as error:
The trial court erred when it imposed a sentence that violates
Blakely principles, Imposing a sentence on severed statutes.
III. DISCUSSION
{¶ 10} Under his assignment of error, appellant contends that his sentence was
imposed in violation of State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856,1 in regard to the
trial court's imposition of non-minimum prison terms and consecutive sentences. As
such, appellant believes his sentence is void and asks that his sentence be vacated and the
case remanded for a new sentencing hearing.
{¶ 11} As a preliminary issue, appellant argues that his case is "still pending on
direct review" and seeks to have his motion construed as a "direct review" of his original
sentence, rather than a postconviction petition, as appellee suggests. (Appellant's Reply
Brief, 1, 4.)
{¶ 12} "Pursuant to R.C. 2953.21(A)(1), an individual who has been convicted of a
criminal offense may file a petition requesting that the court vacate or set aside the
judgment or sentence based on a claim of denial or infringement of their rights that would
render the judgment void or voidable under the Ohio or United States Constitution."
1Superseded by statute as discussed in State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, and State v.
Sergent, __ Ohio St.3d __, 2016-Ohio-2696, ¶ 34-37.
No. 15AP-991 4
State v. Souza, 10th Dist. No. 15AP-87, 2015-Ohio-2541, ¶ 7. Motions to correct or vacate
a sentence may properly be construed as petitions for postconviction relief. See, e.g.,
State v. Rodriguez, 10th Dist. No. 15AP-953, 2016-Ohio-1090, ¶ 1, 7-8, 10 (construing
"Motion to Correct an Illegal Conviction and Sentence based on Void Judgment Contrary
to law" as a petition for postconviction relief); State v. Reynolds, 79 Ohio St.3d 158, 160
(1997) (construing motion to correct or vacate sentence as a petition for postconviction
relief); State v. Mason, 10th Dist. No. 12AP-120, 2012-Ohio-4510 (citing multiple cases
construing motions seeking to correct or vacate sentences as motions for postconviction
relief); State v. Holland, 5th Dist. No. 09-CA-120, 2010-Ohio-226, ¶ 13 ("[W]e find
Appellant's motion to amend sentence is a petition for post conviction relief as defined in
R.C. 2953.21."). We agree with appellee and find appellant's motion to be a petition for
postconviction relief under R.C. 2953.21. Id.{¶ 13} Next, we must consider whether the petition is barred by res judicata, the
basis of the trial court's decision. "Res judicata is applicable in all postconviction relief
proceedings." State v. Szefcyk, 77 Ohio St.3d 93, 95 (1996). The doctrine "prevents
repeated attacks on a final judgment and applies to issues that were or might have been
previously litigated." State v. Sappington, 10th Dist. No. 09AP-988, 2010-Ohio-1783,
¶ 10. "[I]n criminal cases res judicata generally bars a defendant from litigating claims in
a proceeding subsequent to the direct appeal 'if he or she raised or could have raised the
issue at the trial that resulted in that judgment of conviction or on an appeal from that
judgment.' " (Emphasis omitted.) State v. Anderson, 10th Dist. No. 15AP-897, 2016-
Ohio-1089, ¶ 7, quoting State v. Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, ¶ 92. The
doctrine is also applicable to bar claims in successive postconviction motions. State v.
Turner, 10th Dist. No. 06AP-876, 2007-Ohio-1468, ¶ 12; State v. Wooden, 10th Dist. No.
02AP-473, 2002-Ohio-7363, ¶ 19-20; State v. Muhumed, 10th Dist. No. 11AP-1001, 2012-
Ohio-6155, ¶ 13.
{¶ 14} Res judicata may not be used to prevent the correction of "void" sentences
by way of postconviction motions. Anderson at ¶ 8. However, "res judicata still applies to
other aspects of the merits of a conviction, including the determination of guilt and the
lawful elements of the ensuing sentence." State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-
6238, paragraph 3 of the syllabus. Thus, this court has applied res judicata where the
No. 15AP-991 5
petitioner challenged a sentence over issues of merger and allied offenses, consecutive
sentencing, and the retroactivity and application of Foster. Souza at ¶ 16; State v.
Thompkins, 10th Dist. No. 12AP-1080, 2013-Ohio-3599, discretionary appeal not
allowed, 137 Ohio St.3d 1443, 2013-Ohio-5678; Rodriguez at ¶ 1, 5; State v. Thompkins,
10th Dist. No. 08AP-454, 2008-Ohio-5373, ¶ 4, 12-13, discretionary appeal not allowed,
120 Ohio St.3d 1527, 2009-Ohio-614; State v. Steward, 10th Dist. No. 10AP-838, 2011-
Ohio-2272, ¶ 22-23, discretionary appeal not allowed, 129 Ohio St.3d 1478, 2011-Ohio-
4751.
{¶ 15} Applying these general principles here, we conclude that res judicata bars
appellant's claim. In his motion, appellant raises issues he either did litigate previously or
could have litigated previously.
{¶ 16} Accordingly, appellant's sole assignment of error is overruled.
IV. CONCLUSION
{¶ 17} Having overruled appellant's sole assignment of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN and LUPER SCHUSTER, JJ., concur.
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