State v. Andrews ( 2020 )

[Cite as State v. Andrews, 2020-Ohio-3176.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108285
v. :
JOSEPH ANDREWS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 4, 2020
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-95-327215-B
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Daniel T. Van, Assistant Prosecuting
Attorney, for appellee.
Mark A. Stanton, Cuyahoga County Public Defender, and
John T. Martin, Assistant Public Defender, for appellant.
MARY J. BOYLE, J.:
Defendant-appellant, Joseph Andrews, appeals the trial court’s
denial of his motion to vacate his convictions for complicity to corruption of a minor,
or in the alternative, to vacate and correct his sentences, and his motion to remove
him from the state’s sex offender registration database. He raises four assignments
of error for our review:
1. The convictions for corruption of a minor are void.
2. The corruption offenses for which Joseph Andrews was
convicted were misdemeanors.
3. Mr. Andrews received the ineffective assistance of trial counsel.
4. Joseph Andrews should not be a sexual registrant.
Finding no merit to his appeal, we affirm.
I. Procedural History and Factual Background
On August 24, 1995, the Cuyahoga County Grand Jury indicted
Andrews on 31 counts of complicity to corruption of a minor in violation of R.C.
2923.03 and 2907.04, 31 counts of compelling prostitution in violation of R.C.
2907.21, 31 counts of endangering children in violation of R.C. 2919.22, and two
counts of extortion in violation of R.C. 2905.11.
On March 20, 1996, Andrews pleaded guilty to 18 counts of complicity
to corruption of a minor in violation of R.C. 2907.04, third-degree felonies, and two
counts of extortion, also third-degree felonies. The remaining charges were nolled.
The trial court sentenced Andrews to one year in prison for each of the complicity to
corruption of a minor convictions to run concurrent to four to ten years in prison for
his extortion convictions.
Less than three months later, Andrews moved to withdraw his guilty
plea. And approximately five months after Andrews entered into his plea, he moved
to vacate or set aside his sentence. It was in this second motion where Andrews first
raised the issue that he is now raising, i.e., that he could not be convicted of
complicity to corruption of a minor because he was under 18 years of age at the time
of the offenses. The trial court denied both motions. Andrews did not appeal the
trial court’s denial of these motions.
Andrews was released from prison in 2000 and placed on parole. He
was found to be in violation of his parole in 2003 for being convicted in Cuyahoga
C.P. No. CR-03-433671 of aggravated robbery with a three-year firearm
specification, aggravated burglary with a three-year firearm specification, and
having weapons while under a disability. Thus, the trial court revoked his parole.
He was sentenced to 11 years in prison on July 10, 2003, in CR-03-433671.
In May 2004, Andrews filed a motion for a delayed appeal. This court
denied his motion and sua sponte dismissed his appeal. See State v. Andrews, 8th
Dist. Cuyahoga No. 84657 (June 10, 2014). Andrews appealed our decision to the
Ohio Supreme Court, which declined to accept his appeal. This court dismissed
another appeal that Andrews filed a few days after the first, finding that it was
duplicative. See State v. Andrews, 8th Dist. Cuyahoga No. 84670 (June 9, 2014).
In October 2004, Andrews again moved for leave to appeal, which we
denied. See State v. Andrews, 8th Dist. Cuyahoga No. 85458 (Dec. 13, 2004).
In February 2018, Andrews moved to vacate his convictions for
complicity to corruption of a minor or, in the alternative, to vacate and correct his
sentence and to remove himself from the state’s sex offender registry. The state
opposed his motion.
In February 2019, the trial court denied Andrews’s motions. In its
judgment entry, the trial court found that Andrews’s plea “as well as his failed post-
trial motions bar re-litigation of the issues raised” in his motion due to res judicata.
The trial court also denied Andrews’s motion to remove him from the sex offender
registration database because Andrews pleaded guilty to offenses that automatically
classified him as a sexually oriented offender. It is from this judgment that Andrews
now appeals.
II. Untimely and Successive Petition for Postconviction Relief
Andrews is appealing the trial court’s judgment denying his motion
to vacate his convictions for complicity to corruption of a minor or, in the alternative,
to vacate and correct his sentence and to remove him from the state’s sex offender
registry. A motion will be construed as a petition for postconviction relief under R.C.
2953.21(A)(1) where the motion (1) was filed subsequent to a direct appeal, (2)
claimed a denial of constitutional rights, (3) sought to render the judgment void, and
(4) asked for a vacation of the judgment and sentence. State v. Reynolds, 79 Ohio
St.3d 158, 160-161, 679 N.E.2d 1131 (1997). Andrews’s motion meets these four
criteria. Accordingly, we shall construe his motion as a petition for postconviction
relief. See also State v. Meincke, 8th Dist. Cuyahoga No. 96407, 2011-Ohio-6473,
¶ 8.
R.C. 2953.21 through 2953.23 set forth the means by which a
convicted defendant may seek to have the trial court’s judgment or sentence vacated
or set aside pursuant to a petition for postconviction relief. A defendant’s petition
for postconviction relief is a collateral civil attack on his or her criminal conviction.
See State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 48. The
statute affords relief from judgment where the petitioner’s rights in the proceedings
that resulted in his conviction were denied to such an extent the conviction is
rendered void or voidable under the Ohio or United States Constitutions. R.C.
2953.21(A); State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph
four of the syllabus. A postconviction petition, however, does not provide a
petitioner a second opportunity to litigate the conviction. State v. Hessler, 10th Dist.
Franklin No. 01 AP-1011, 2002-Ohio-3321, ¶ 32.
R.C. 2953.21(A)(2) provides that a petition for postconviction relief
must be filed within 365 days from the filing of the trial transcripts in the petitioner’s
direct appeal or, if a direct appeal was not pursued, 365 days after the expiration of
the time in which a direct appeal could have been filed. Here, Andrews did not file
his petition until well beyond the 365 days. Indeed, he filed it almost 22 years later.
Thus, his petition is untimely.
R.C. 2953.23(A)(1)(a) permits a trial court to entertain an untimely
petition only if:
(1) the petitioner was unavoidably prevented from discovering the facts
on which the petition is predicated, or (2) the United States Supreme
Court has recognized a new federal or state right that applies
retroactively to the petitioner and the petition asserts a claim based on
that new right.
If the petitioner can satisfy one of these threshold conditions, he or
she must then demonstrate that, but for the constitutional error at trial, no
reasonable factfinder would have found him or her guilty of the offenses of which he
was convicted. R.C. 2953.23(A)(1)(b).
Thus, unless it appears from the record that Andrews was
unavoidably prevented from discovering the facts upon which he relied in his
petition, or the United States Supreme Court has recognized a new federal or state
right that applies retroactively to Andrews and, if one of those applies, that but for
constitutional error at trial, no reasonable factfinder would have found Andrews
guilty, we are bound to conclude the trial court was without jurisdiction to consider
his petition for postconviction relief.
In his first, second, and third assignments of error, Andrews
maintains that (1) his convictions of complicity to corruption of a minor are void, (2)
his convictions of complicity to corruption of a minor should be misdemeanors
rather than felonies, and (3) his trial counsel was ineffective for advising him to
plead guilty to felonies instead of misdemeanors. In doing so, however, Andrews
does not even allege, let alone establish, any of the threshold requirements necessary
to bring an untimely petition for postconviction relief. Specifically, Andrews does
not claim that he was unavoidably prevented from discovering facts upon which he
relied in his petition or that the United States Supreme Court has recognized a new
federal or state right that applies retroactively to him.
Even if Andrews had met one of the threshold conditions, he would
not have met the second requirement “that but for the constitutional error at trial,
no reasonable factfinder would have found [him] guilty” because Andrews did not
go to trial; he pleaded guilty. See State v. Rackley, 8th Dist. Cuyahoga No. 102962,
2015-Ohio-4504, ¶ 17 (“Rackley pleaded guilty, and thus, R.C. 2953.23(A) does not
apply.”); State v. Moore, 8th Dist. Cuyahoga No. 82734, 2003-Ohio-4819, ¶ 16
(“Appellant pled guilty to drug possession and no trial occurred; therefore, [R.C.
2953.23(A)] does not apply.”); State v. Halliwell, 134 Ohio App.3d 730, 735, 732
N.E.2d 405 (8th Dist.1999) (defendant could not satisfy the requirement that “but
for constitutional error at trial, no reasonable factfinder would have found the
petitioner guilty of the offense of which the petitioner was convicted” where he was
convicted “pursuant to his plea of guilty, not by reason of trial”).
To the extent that Andrews argues his convictions for complicity to
corruption of a minor are void, we disagree. Andrews does not cite to any law in
support of this argument, nor can we find any law to support it. We further decline
to create new law to find that his convictions are void.
Accordingly, Andrews’s first three assignments of error are overruled.
III. Sex-Offender Classification and Registration
In his fourth assignment of error, Andrews argues that he should not
have to register as a sexually oriented offender.
First, Andrews claims that without his convictions for complicity to
corruption of a minor, he would not have to register. He asserts that if we agree with
any of his first three assignments of error, we should vacate his classification as a
sexually oriented offender. We did not, however, agree with any of his first three
assignments of error.
Next, Andrews argues that he should benefit from the enactment of
the Adam Walsh Act (“AWA”), which became effective on January 1, 2008.
However, Andrews was classified as a sexually oriented offender under Megan’s
Law. The Ohio Supreme Court held that the provisions of the AWA were punitive
and could not be applied retroactively. State v. Williams, 129 Ohio St.3d 344, 2011-
Ohio-3374, 952 N.E.2d 1108, ¶ 22. The Supreme Court explained that although the
AWA did not apply retroactively, the registration and notification provisions of
Megan’s Law continued to apply to offenders subject to that law. State v. Brunning,
134 Ohio St.3d 438, 2012-Ohio-5752, 983 N.E.2d 316, ¶ 22.
As a sexually oriented offender under Megan’s Law, Andrews has a
duty to register annually for ten years — not counting the time he was in prison.
Former 2950.06(B)(2) and 2950.07(B)(3). The record indicates that Andrews got
out of prison in 2000 and was placed on parole. He was found to be in violation of
his parole in 2003, and the trial court revoked his parole. Andrews was in violation
of his parole due to an aggravated robbery conviction with a three-year firearm
specification, aggravated burglary conviction with a three-year firearm
specification, and a conviction for having weapons while under a disability. See
State v. Andrews, 8th Dist. Cuyahoga No. 84137, 2005-Ohio-1161 (Andrews
appealed his convictions in CR-03-433671). For these crimes, Andrews received an
11-year prison sentence on July 10, 2003. At that time, he received 194 days of jail-
time credit and thus, he would have been released from prison sometime in late 2013
or early 2014. If Andrews is still required to register as a sexually oriented offender,
it is because he has not yet registered for a full ten years due to the time he spent in
prison.
Andrews fourth assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MARY J. BOYLE, JUDGE
EILEEN T. GALLAGHER, A.J., and
SEAN C. GALLAGHER, J., CONCUR