State v. Robinson

[Cite as State v. Robinson, 2017-Ohio-4168.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 28278
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JACKIE N. ROBINSON COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 79 03 0319 A
DECISION AND JOURNAL ENTRY
Dated: June 7, 2017
HENSAL, Presiding Judge.
{¶1} Jackie Robinson appeals an order of the Summit County Court of Common Pleas
that denied his motion to correct sentencing. For the following reasons, this Court affirms.
I.
{¶2} In 1979, a jury found Mr. Robinson guilty of aggravated robbery, carrying a
concealed weapon, and having a weapon under disability. The trial court sentenced him to a
combined term of nine to forty years imprisonment. On appeal, this Court upheld his conviction
and sentence. In subsequent years, Mr. Robinson filed a series of motions, requesting that his
convictions be set aside or his sentence corrected. The trial court denied each of his motions. At
issue in this appeal is a motion to correct sentence that Mr. Robinson filed on May 12, 2016.
The trial court denied it without explanation on May 23, 2016. Mr. Robinson has timely
appealed, assigning 16 errors, which this court will address together.
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II.
ASSIGNMENT OF ERROR I
WAS IT ERROR TO CONTINUE TO PROSECUTE MR. ROBINSON AFTER
THE DISMISSAL OF THE INDICTMENT BY THE MUNICIPAL COURT.
ASSIGNMENT OF ERROR II
WAS IT ERROR TO SECRETLY INDICT MR. ROBINSON UNDER THE
CAREER CRIMINAL PROGRAM, WHEN KNOWING THAT HE DID NOT
FALL WITHIN THE CRITERIA.
ASSIGNMENT OF ERROR III
WAS IT ERROR TO PUT MR. ROBINSON TO TRIAL AFTER THE COURT
GRANTED A MOTION TO SUPPRESS THE INDICTMENT, AND
DISMISS[ED] THE CASE.
ASSIGNMENT OF ERROR IV
WAS IT ERROR FOR THE STATE TO MANUFACTURE A BOGUS
INDICTMENT, STATING THAT IT WAS SWORN TO UNDER OATH,
SIGNED AND RETURNED BY MEMBERS OF THE GRAND JURY.
ASSIGNMENT OF ERROR V
WAS IT ERROR TO THE PREJUDICE OF MR. ROBINSON FOR [THE]
TRIAL COURT TO VIOLATE THE MANDATORY PROCEDURES OF OHIO
CRIM. R. 6(C)(D)(F)(E).
ASSIGNMENT OF ERROR VI
WAS IT ERROR TO THE PREJUDICE OF MR. ROBINSON FOR THE TRIAL
JUDGE AND DEFENSE COUNSEL TO WAIVE AWAY MR. ROBINSON[’S]
RIGHTS UNDER THE U. S. CONST.
ASSIGNMENT OF ERROR VII
WAS IT ERROR TO DISREGARD THE MANDATORY DUTY OF THE
COURT TO CONSIDER THE FACTORS SET FORTH IN 2929.12(A)(B)(C),
AND NOT STATE THE COURT[’S] REASONS IN THE JOURNAL ENTRY
FOR IMPOSING MAXIMUM AND CONSECUTIVE SENTENCES FOR ACTS
STEMMING FROM ONE CRIME.
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ASSIGNMENT OF ERROR VIII
WAS IT ERROR FOR THE TRIAL COURT TO VIOLATE A [MANDATED]
SENTENCING [STATUTE], PURSUANT TO OHIO REV. CODE ANN. §
2947.051.
ASSIGNMENT OF ERROR IX
WAS IT ERROR FOR THE TRIAL COURT TO IMPOSE INDEFINITE
SENTENCES FOR THIRD AND FOURTH DEGREE FELONIES WITHOUT
LEGAL CAUSE.
ASSIGNMENT OF ERROR X
WAS IT ERROR FOR THE TRIAL COURT TO IMPOSE COST[S] AND
FINES, AFTER FINDING DEFENDANT INDIGENT, AND NOT INFORM
DEFENDANT OF THE PENALTIES HE WOULD FACE IF FINES AND
COSTS WERE NOT PAID.
ASSIGNMENT OF ERROR XI
WAS IT ERROR FOR THE STATE AND TRIAL COURT TO HIDE
EVIDENCE IN LIGHT OF DEFENDANT[’S] [INNOCENCE], AND NOT
PROVIDE DEFENDANT WITH FULL DISCOVERY.
ASSIGNMENT OF ERROR XII
WAS IT ERROR FOR THE TRIAL COURT TO DENY REQUEST MADE BY
JURY MEMBERS TO VIEW ARRESTING REPORT AND STATEMENTS
MADE BY THE STATE[’]S WITNESS PAUL STEWART ON THE NIGHT OF
DEFENDANT[’S] ARREST.
ASSIGNMENT OF ERROR XIII
WAS IT ERROR FOR THE STATE AND TRIAL COURT TO NOT CALL THE
STATE’S WITNESS, MR. STYER, UPON DEFENDANT[’S] REQUEST, AS
MR. STYER WAS SUBPOENAED BY THE STATE.
ASSIGNMENT OF ERROR XIV
WAS IT ERROR FOR THE STATE NOT TO PROVIDE DEFENDANT WITH
A WITNESS LIST, AND FULL DISCOVERY.
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ASSIGNMENT OF ERROR XV
WAS IT ERROR FOR THE STATE NOT TO HAVE MR. STYER ON ITS
WITNESS LIST.
ASSIGNMENT OF ERROR XVI
WAS IT ERROR FOR THE TRIAL COURT TO DENY DEFENDANT[’S]
REQUEST FOR COUNSEL TO BE GIVEN TIME TO LOCATE MR. STYER,
WHOM STATED IN THE ARRESTING REPORT THAT DEFENDANT WAS
NOT THE ROBBER.
{¶3} Mr. Robinson makes a plethora of arguments on appeal. Initially, we note that
this Court will not address issues that are raised for the first time on appeal. State v. Manso, 9th
Dist. Summit No. 26727, 2014-Ohio-1388, ¶ 7; see also State v. George, 9th Dist. Summit No.
27279, 2014-Ohio-5781, ¶ 32. In his motion to correct sentence, Mr. Robinson argued that the
trial court failed to hold a sentencing hearing, that it failed to make the findings required to
impose consecutive sentences, that it did not give him the opportunity to present a pre-sentence
investigation report, that it failed to consider any seriousness and recidivism factors before
sentencing him, that it improperly imposed costs and fines, that it failed to warn him of the
penalties he would face if he did not pay the costs and fines, that it improperly sentenced him
based on his race, ethnic background, and gender, and that it improperly imposed the maximum
sentence on him. Accordingly, this Court will only consider those arguments.
{¶4} Mr. Robinson argues that, because of the trial court’s many mistakes, its judgment
is contrary to law and violates his rights under the United States and Ohio Constitutions. The
Ohio Supreme Court has held that, if “a criminal defendant, subsequent to his or her direct
appeal, files a motion seeking vacation or correction of his or her sentence on the basis that his or
her constitutional rights have been violated, such a motion is a petition for postconviction relief
as defined in R.C. 2953.21.” State v. Reynolds, 79 Ohio St.3d 158 (1997), syllabus. Reviewing
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Mr. Robinson’s motion to correct sentencing under Reynolds, we conclude that it was a petition
for post-conviction relief under Revised Code Section 2953.21.
{¶5} Section 2953.21(A)(2) provides that a petition for post-conviction relief must be
filed within 365 days of the date on which the trial transcript is filed in the defendant’s direct
appeal. Because Mr. Robinson’s sentence pre-dates the addition of a time limit to Section
2953.21, he was allowed to file a petition by September 21, 1996. State v. Swihart, 9th Dist.
Medina No. 06CA0091-M, 2007-Ohio-763, ¶ 6. Mr. Robinson, however, did not file his petition
until May 2016. He also did not attempt to establish any of the grounds for filing an untimely or
successive petition under Section 2953.23(A). We, therefore, conclude that the trial court did not
have authority to consider Mr. Robinson’s motion to correct sentencing, as it was an untimely or
successive petition for post-conviction relief. State v. Russell, 9th Dist. Summit No. 28206,
2017-Ohio-723, ¶ 5. Thus, the trial court correctly denied his motion. Id.{¶6} Mr. Robinson argues that, because the trial court failed to follow all of the
required procedures when it sentenced him, his sentence is void. The Ohio Supreme Court has
held that, if a sentence is void, it “is not precluded from appellate review by principles of res
judicata, and may be reviewed at any time, on direct appeal or by collateral attack.” State v.
Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, paragraph one of the syllabus. Mr. Robinson,
however, has not pointed to any authority that establishes that his entire sentence, or any part of
it, is void. Sentencing errors do not render a sentence void if the court “had jurisdiction and
statutory authority to act[.]” State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, ¶ 23. In
Williams, the Ohio Supreme Court identified three areas where it had held that a sentence was
void: “when the trial court fails to impose a statutorily mandated term of postrelease control,”
“when it fails to include a mandatory driver’s license suspension in the offender’s sentence[,]”
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and “when it fails to include a mandatory fine in the sentence[.]” Id. at ¶ 21. Mr. Robinson has
not alleged that any of those errors occurred in his sentence.
{¶7} Upon review of the record, we conclude that the trial court correctly denied Mr.
Robinson’s motion to correct sentence, which was an untimely or successive petition for post-
conviction relief under Section 2953.21. Mr. Robinson’s assignments of error are overruled.
III.
{¶8} Mr. Robinson’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
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SCHAFER, J.
TEODOSIO, J.
CONCUR.
APPEARANCES:
JACKIE N. ROBISNON, pro se, Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.