State v. Sanders

[Cite as State v. Sanders, 2014-Ohio-2521.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
PICKAWAY COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : Case No. 13CA29
vs. :
BILL ADAM SANDERS, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
_________________________________________________________________
APPEARANCES:
APPELLANT PRO SE: Bill Adam Sanders, #A308-019, Chillicothe Correctional
Institution, P.O. Box 5500, Chillicothe, Ohio 45601
COUNSEL FOR APPELLEE: Judy C. Wolford, Pickaway County Prosecuting Attorney,
and Jayme Hartley Fountain, Pickaway County Assistant
Prosecuting Attorney, 203 South Scioto Street. P.O. Box
910, Circleville, Ohio 43113
______________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:5-30-14
ABELE, P.J.
{¶ 1} This is an appeal from a Pickaway County Common Pleas Court judgment that
denied a motion “to correct unlawful sentence” filed by Bill Adam Sanders, defendant below and
appellant herein. The following errors are assigned for our review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED TO THE PREJUDICE OF
DEFENDANT-APPELLANT WHEN IT DENIED HIS MOTION
TO CORRECT UNLAWFUL SENTENCE, IN VIOLATION OF
THE DUE PROCESS OF LAW GUARANTEED BY SECTIONS
PICKAWAY, 13CA29 2
2 AND 16 OF THE OHIO CONSTITUTION AND THE
FOURTEENTH AMENDMENT TO THE UNITED STATES
CONSTITUTION.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT IMPOSED AN UNLAWFUL SENTENCE
UPON DEFENDANT-APPELLANT WHEN IT DISREGARDED
THE MANDATES OF R.C. 2941.25 (A) [sic] AFTER THE
TRIAL COURT CONFIRMED THE OFFENSES WERE
COMMITTED IN A CONTINUING COURSE OF CONDUCT,
AND AFTER THE PROSECUTION ARGUED TO THE JURY
AND THE JURY VERDICT FOUND BEYOND REASONABLE
DOUBT THAT THE THREE COUNTS OF ATTEMPTED
MURDER WERE COMMITTED IN A CONTINUING COURSE
OF CONDUCT WITH A SINGLE INTENT, IN VIOLATION OF
THE DUE PROCESS OF LAW GUARANTEED BY SECTIONS
2 AND 16 OF THE OHIO CONSTITUTION AND THE
FOURTEENTH AMENDMENT TO THE UNITED STATES
CONSTITUTION.”
{¶ 2} In March 1995, appellant was convicted of three counts of attempted murder, all
with firearm specifications. The trial court sentenced him to serve three years on each firearm
specification and, once completed, consecutive sentences for each count of attempted murder
with an aggregate minimum of twenty-four years (24) to an aggregate maximum term of
seventy-five (75)years. We affirmed his conviction and sentence. State v. Sanders, 4th Dist.
Pickaway No. 95CA6, 1996 WL 734666 (Dec. 10, 1996)(Sanders I).
{¶ 3} On January 25, 2012, appellant filed a motion to correct his sentence. Appellant
argued that at the sentencing hearing, the trial court ordered the sentences on counts two and
three to be served concurrently, but the actual sentencing entry ordered them to be served
consecutively. The trial court denied the motion and we affirmed that judgment. State v.
Sanders, 4th Dist. Pickaway No. 12CA4, 2013-Ohio-1326 (Sanders II). The Ohio Supreme
PICKAWAY, 13CA29 3
Court denied further appeal. State v. Sanders, 135 Ohio St. 3d 1460, 988 N.E.2d 579,
2013-Ohio-2285 (Sanders IIA).1
{¶ 4} Appellant commenced the instant action on November 27, 2013 and argued that
his 1995 sentence violated R.C. 2941.25(A)2 and the convictions should have merged “into one
sentence of a 8 to 25 years with one firearm specification.” On December 2, 2013, the trial court
denied the motion. Relying on Sanders II, the trial court concluded that res judicata bars
appellant’s claims and, in any event, were presented in an untimely postconviction relief petition.
This appeal followed.
I
{¶ 5} In his first assignment of error, appellant argues that the trial court erred by
overruling his motion to “correct unlawful sentence.” We disagree and come to the same
conclusion as the trial court for the same reasons we expressed in Sanders II.
{¶ 6} Courts may recast irregular motions into whatever category is necessary to
identify and to establish the criteria by which a motion should be judged. State v. Lett, 7th Dist.
No. 09MA131, 2010-Ohio-3167, at ¶15 citing State v. Schlee, 117 Ohio St. 3d 153,
2008-Ohio-545, 882 N.E.2d 431,at ¶12. Although the motion “to correct unlawful sentence” did
1
Appellant has also sought habeas corpus relief in federal court from his 1995 original conviction arguing that venue
in Pickaway County was improper, he was denied a speedy trial and that the state failed to disclose evidence favorable to his
defense. A magistrate for the United States District Court recommended the petition be dismissed as untimely. See Sanders v.
Warden, Civil Action No. 2:12–cv–0423, 2012 WL 2070863 (S.D.Ohio)(May 12, 2012). The trial court adopted her
recommendation and ordered the case dismissed. Id. at 2012 WL 2130987 (June 8, 2012).
2
R.C. 2941.25(A) states “[w]here the same conduct by defendant can be construed to constitute two or more allied
offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be
convicted of only one.”
PICKAWAY, 13CA29 4
not raise constitutional claims, appellant’s assignments of error are now couched in terms of the
Ohio and federal constitutions. Thus, we will treat this action as a denial of a petition for
postconviction relief. As such, any number of reasons exist to affirm the trial court's denial of
appellant’s motion.
{¶ 7} First, petitions must be filed no later than one hundred and eighty days after the
expiration of the time for filing an appeal. R.C. 2953.21(A)(2). In this case, the expiration of
time for filing an appeal ran in 1995. Appellant, however, did not file his motion until 2013.
{¶ 8} Second, The Ohio Supreme Court has held that the doctrine of res judicata applies
when determining whether postconviction relief is warranted under R.C. 2953.21. See State v.
Szefcyk, 77 Ohio St. 3d 93, 671 N.E.2d 233, at the syllabus (1996); State v. Nichols, 11 Ohio
St.3d 40, 42, 463 N.E.2d 375 (1984); State v. Perry, 10 Ohio St. 2d 175, 226 N.E.2d 104, at
paragraph eight of the syllabus (1967). In other words, a petitioner cannot raise, for purposes of
postconviction relief, any error that was raised, or could have been raised, on direct appeal.
State v. Franklin, 4th Dist. No. 05CA9, 2006-Ohio-1198, at ¶10; State v. Peeples, 4th Dist. No.
05CA25, 2006-Ohio-218, at ¶11. The alleged error to which appellant points is one that could
have been discovered and raised in Sanders I. It was not. Thus, res judicata bars appellant
from raising it more than seventeen years later.
{¶ 9} For these reasons, we hereby overrule appellant's first assignment of error.
II
{¶ 10} Appellant’s second assignment of error goes to the original 1995 sentencing and
argues that those sentences were imposed in violation of Ohio law. Specifically, appellant
maintains that the attempted murder charges are allied offenses of similar import and should have
PICKAWAY, 13CA29 5
been merged for purposes of sentencing. We, however, reject that argument because the 1995
proceedings are not properly before us.
{¶ 11} Once again, any alleged violation of sentencing law appellant could have, and
should have, raised in Sanders I. He did not. Consequently, appellant is barred by res judicata
from raising the issue now, at this late date. State v. Lofton, 4th Dist. Pickaway No. 12CA21,
2013-Ohio-1121, at ¶8; State v. Keeley, 4th Dist. Washington No. 12CA15, 989 N.E.2d 80,
2013-Ohio-474, at ¶6.3 For these reasons, we hereby overrule appellant's second assignment of
error.
{¶ 12} Having considered all of the errors that appellant assigned and argued, we hereby
affirm trial court's judgment.
JUDGMENT AFFIRMED.
3
Any alleged failure to comply with R.C. 2941.25(A) does not render a judgment void so that it can be challenged at
any time. State v. Bryant, 9th Dist. Summit No. 26774, 2013-Ohio-4996, at ¶6; State v. Grant, 1st Dist. Hamilton No.
C–120695, 2013-Ohio-3241, at ¶5. Any error on the part of the trial court to merge the three attempted murder convictions
should have been raised in Sanders I.
[Cite as State v. Sanders, 2014-Ohio-2521.]
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellee recover of appellant the 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 Pickaway County
Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted, it is
continued for a period of sixty days upon the bail previously posted. The purpose of said stay is
to allow appellant to file with the Ohio Supreme Court an application for a stay during the
pendency of the proceedings in that court. The stay as herein continued will terminate at the
expiration of the sixty day period.
The stay will also terminate if appellant fails to file a notice of appeal with the Ohio
Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to
the expiration of said sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
McFarland, J. & Hoover, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.