State v. Turrentine ( 2010 )

[Cite as State v. Turrentine, 2010-Ohio-4826.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-10-40
v.
JAMES L. TURRENTINE, JR., OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR 2003 0372
Judgment Affirmed
Date of Decision: October 4, 2010
APPEARANCES:
James L. Turrentine, Jr., Appellant
Jana E. Emerick for Appellee
Case No. 1-10-40
WILLAMOWSKI, P.J.
{¶1} Defendant-appellant James L. Turrentine, Jr. (“Turrentine”) brings
this appeal from the judgment of the Court of Common Pleas of Allen County
denying his motion to modify his prison sentence. For the reasons set forth below,
the judgment is affirmed.
{¶2} On September 19, 2003, Turrentine entered a negotiated plea of
guilty to two counts of rape and one count of gross sexual imposition. As part of
the plea agreement, the parties stipulated to an agreed sentence recommendation of
six years in prison for each count of rape and three years in prison for the gross
sexual imposition, with the sentences to run consecutively. The trial court
accepted the guilty plea and sentenced Turrentine to the recommended sentence
for a total sentence of fifteen years in prison.
{¶3} On January 15, 2008, Turrentine filed a motion to modify his
sentence, alleging that his sentence was contrary to law because he was given
more than the minimum sentence. The trial court overruled the motion on January
16, 2008. Turrentine then appealed that judgment to this court and was assigned
case number 1-08-18. On appeal, Turrentine argued that the trial court erred in
sentencing him to consecutive sentences for allied offenses, failed to require a pre-
sentence investigation, and erred in sentencing him to more than the minimum
sentence. This court overruled the assignments of error pursuant to R.C.
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2953.08(D)(1), which prevents review of a sentence that is jointly recommended
by the State and the defendant and is imposed by the trial court. State v.
Turrentine, 3d Dist. No. 1-08-18, 2008-Ohio-3231 (“Turrentine I”). This court
also held that a pre-sentence investigation was not mandated, so the trial court did
not err by failing to order one. Id.{¶4} On April 21, 2010, Turrentine again filed a motion to modify his
sentence, alleging that his original sentence was invalid because they were allied
offenses of similar import which should have merged upon sentencing. The trial
court overruled the motion on April 23, 2010. Turrentine appeals from this
judgment and raises the following assignments of error.
First Assignment of Error
The trial court erred by failing to engage on the record, the
analysis of the offenses charged as required by R.C. 2941.25 to
determine allied offenses of similar import.
Second Assignment of Error
The trial court erred by failing in its mandatory duty to merge
allied offenses of similar import, prior to sentencing
[Turrentine].
Third Assignment of Error
The trial court erred by sentencing [Turrentine] consecutively
for allied offense (sic) of similar import.
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Fourth Assignment of Error
The trial court abused its power and discretion, by failing to
adhere to its own rulings on recidivism unlikely factors, as
stated in the judgment entry or sentence, and imposed the
sentences consecutively.
Fifth Assignment of Error
[Turrentine’s] trial counsel failed to object to the imposition of
consecutive sentences for allied offenses of similar import, and
failed to move the trial court to merge the allied offenses
thereby creating deficient performances and ineffective
assistance of counsel.
{¶5} This court notes that all five assignments of error are based upon the
sentence imposed back in 2003. No direct appeal was taken from that sentence.
Since the underlying motion and the appeal were filed after the time for a direct
appeal had passed, claims a denial of rights, and seeks to void the judgment of
sentence, the motion and the appeal are based upon a petition for post-conviction
relief. State v. Reynolds (1997), 79 Ohio St.3d 158, 679 N.E.2d 1131. Thus, we
will treat the motion to modify his sentence as a petition for post-conviction relief.
State v. Holdcroft, 3d Dist. No. 16-06-07, 2007-Ohio-586, ¶11.
{¶6} A petition for post-conviction relief must “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 * * *.” R.C. 2953.21(A)(2). However, if no direct
appeal is taken, the petition must be filed within one hundred eighty days after the
expiration of the time for the filing of the direct appeal. Id. If a defendant fails to
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file a timely petition for post-conviction relief, the trial court may not consider the
motion unless one of the two exceptions is met. R.C. 2953.23(A). These
exceptions are 1) that there is a newly recognized federal or state right which
would have precluded a finding of guilty or 2) DNA testing is now available
which will establish actual innocence of the felony charged. Id. at (A)(2).
{¶7} In this case, Turrentine did not file his motion for several years, and
thus did not file within the required time frame for a motion for post-conviction
relief. Turrentine does not allege any new right or evidence. Instead, his only
complaint is that his sentence was improperly imposed. This does not meet either
of the exceptions for an untimely petition. As a matter of law, the trial court
lacked jurisdiction to consider Turrentine’s motion because it was untimely. See
Holdcroft, supra.
{¶8} Even if Turrentine’s motion was timely filed, the assignments of
error would be barred by the doctrine of res judicata.
Under the doctrine of res judicata, a final judgment of
conviction bars the convicted defendant 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 at the
trial which resulted in that judgment of conviction or on an
appeal from that judgment. As stated in 18 American
Jurisprudence 2d 505, Section 33:
‘Just as the petitioner’s knowledge, at the time of trial, or the
error of fact relied upon, or his fault in not discovering such
error previously, will bar relief under a common-law writ of
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Case No. 1-10-40
error coram nobis, such factors will also bar a comparable
statutory (postconviction) remedy.’
State v. Perry (1967), 10 Ohio St.2d 175, 180-81, 226 N.E.2d 104. This doctrine
includes all issues that either were raised or could have been raised on direct
appeal. Grava v. Parkman (1995), 73 Ohio St.3d 379, 653 N.E.2d 226.
{¶9} In this appeal, all of the issues raised by Turrentine could have been
and should have been raised on direct appeal. They were not. Thus, they are
barred by the doctrine of res judicata. In addition, the assignments of error
dealing with allied offenses of similar import were previously addressed by this
court in Turrentine I. Turrentine did not appeal that ruling to the Ohio Supreme
Court. Therefore, that issue is the law of the case and need not be addressed
again. For these reasons, all five assignments of error are overruled.
{¶10} The judgment of the Court of Common Pleas of Allen County is
affirmed.
Judgment Affirmed
ROGERS and PRESTON, J.J., concur.
/jlr
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