State v. Mason , 2023 Ohio 1200 ( 2023 )

[Cite as State v. Mason, 2023-Ohio-1200.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Andrew J. King, J.
-vs-
Case No. CT2022-0086
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: April 10, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RONALD L. WELCH TROY A. MASON
PROSECUTING ATTORNEY PRO SE
JOHN CONNOR DEVER NOBLE CORR. INSTITUTION
ASSISTANT PROSECUTOR 15708 McConnelsville Road
27 North Fifth Street, P. O. Box 189 Caldwell, Ohio 43724
Zanesville, Ohio 43702
Muskingum County, Case No. CT2022-0086 2
Wise, J.
{¶1} Defendant-Appellant Troy A. Mason appeals the November 21, 2022,
decision of the Muskingum County Court of Common Pleas denying his motion for
resentencing.
{¶2} Appellee is the State of Ohio.
{¶3} Preliminarily, we note this case is before this Court on the accelerated
calendar which is governed by App.R. 11.1. Subsection (E), determination and judgment
on appeal, provides in pertinent part: “The appeal will be determined as provided by
App.R. 11.1. It shall be sufficient compliance with App.R. 12(A) for the statement of the
reason for the court's decision as to each error to be in brief and conclusionary form.”
{¶4} One of the most important purposes of the accelerated calendar is to enable
an appellate court to render a brief and conclusory decision more quickly than in a case
on the regular calendar where the briefs, facts, and legal issues are more complicated.
Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d 655 (10th
Dist.1983).
{¶5} This appeal shall be considered in accordance with the aforementioned
rules.
STATEMENT OF THE FACTS AND CASE
{¶6} The relevant facts leading to this appeal are as follows.
{¶7} Between July 2014 and December 2016, Appellant Troy A. Mason was
charged and convicted in eight misdemeanor cases filed in the Zanesville Municipal
Court. Throughout the various arrest, processing, and prosecution stages of these
misdemeanor cases, Appellant pretended to be his brother, Robert Mason. Appellant
Muskingum County, Case No. CT2022-0086 3
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.
{¶8} 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.
{¶9} 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.
{¶10} 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.
{¶11} 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).
Muskingum County, Case No. CT2022-0086 4
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).
{¶12} 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
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.
{¶13} 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.
{¶14} On October 23, 2018, Appellant filed an application to reopen pursuant to
App.R. 26(B).
{¶15} By Judgment Entry filed January 14, 2019, this Court denied said
application.
Muskingum County, Case No. CT2022-0086 5
{¶16} On January 25, 2019, Appellant filed a motion for reconsideration.
{¶17} By Judgment Entry filed April 15, 2019, this Court denied Appellant's
motion.
{¶18} On May 22, 2019, Appellant filed a notice of appeal to the Ohio Supreme
Court.
{¶19} On October 3, 2019, Appellant's motion was denied, and the Supreme
Court declined to accept jurisdiction.
{¶20} On February 28, 2022, Appellant filed a motion to correct an illegal sentence
with the trial court.
{¶21} By Judgment Entry filed March 3, 2022, the trial court denied Appellant's
motion.
{¶22} Appellant appealed to this Court which, by Opinion and Entry filed July 14,
2022, denied Appellant’s two assignments of error and affirmed the decision of the trial
court. State v. Mason, 5th Dist. Muskingum No. CT2022-0020, 2022-Ohio-2443.
{¶23} On November 7, 2022, Appellant filed a motion for resentencing.
{¶24} By Judgment Entry filed November 22, 2022, the trial court denied
Appellant’s motion.
{¶25} Appellant now appeals, raising the following error for review:
ASSIGNMENT OF ERROR
{¶26} “I. SENTENCING COURT ABUSED ITS DISCRETION WHEN IT HAS THE
AUTHORITY, BUT FAILED TO DO SO, RE-SENTENCE DEFENDANT-APPELLANT TO
A MISDEMEANOR JURISDICTION SENTENCE WHEN THE FELONY JURISDICTION
Muskingum County, Case No. CT2022-0086 6
SENTENCES ARE VOID AS TO COUNTS 1, 7, 11, 16, 20, 26, 29 AND 32 IN
VIOLATION OF ORC ANN. 2913.42 SECTION 2913.42(A)(1).”
I.
{¶27} In his sole Assignment of Error, Appellant argues the trial court erred in
denying his motion for resentencing. We disagree.
{¶28} Upon review, we find that Appellant's motion for resentencing is actually
another 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.
{¶29} 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.
{¶30} Here, Appellant pursued his direct appeal in November, 2017. His motion
for resentencing (petition) was filed more than five 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.
{¶31} Furthermore, under the doctrine of res judicata, a final judgment of
conviction bars a convicted defendant who was represented by counsel from raising and
Muskingum County, Case No. CT2022-0086 7
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.
{¶32} Upon review, we find that the issues raised by Appellant in his motion for
resentencing 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 as to sentencing in his direct appeal, but failed to do so.
{¶33} Accordingly, Appellant's Assignment of Error is overruled.
{¶34} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Muskingum County, Ohio, is hereby affirmed.
By: Wise, J.
Hoffman, P. J., and
King, J., concur.
JWW/kw 0405