Opinion
No. 17AP-25 No. 17AP-26 No. 17AP-27 No. 17AP-29
06-27-2017
State of Ohio, Plaintiff-Appellee, v. Mark D. Jones, Defendant-Appellant.
On brief: Ron O'Brien, Prosecuting Attorney, and Michael P. Walton, for appellee. On brief: Mark D. Jones, pro se.
(C.P.C. No. 09CR-566) (REGULAR CALENDAR) (C.P.C. No. 09CR-331) (REGULAR CALENDAR) (C.P.C. No. 09CR-563) (REGULAR CALENDAR) (C.P.C. No. 09CR-7859) (REGULAR CALENDAR) DECISION On brief: Ron O'Brien, Prosecuting Attorney, and Michael P. Walton, for appellee. On brief: Mark D. Jones, pro se. APPEALS from the Franklin County Court of Common Pleas DORRIAN, J.
{¶ 1} Defendant-appellant, Mark D. Jones, appeals from a judgment of the Franklin County Court of Common Pleas denying his postconviction motion to correct, vacate, or set aside the judgments of conviction or sentences in several criminal cases against appellant. Because we conclude the trial court did not abuse its discretion by denying appellant's motion, we affirm.
I. Facts and Procedural History
{¶ 2} Appellant was indicted in January 2009 on a total of 18 counts of robbery in three criminal cases: (1) case No. 09CR-566 (5 counts of second-degree felony robbery, in violation of R.C. 2911.02, and 5 counts of third-degree felony robbery, in violation of R.C. 2911.02), (2) case No. 09CR-331 (3 counts of second-degree felony robbery, in violation of R.C. 2911.02, and 3 counts of third-degree felony robbery, in violation of R.C. 2911.02), and (3) case No. 09CR-563 (1 count of second-degree felony robbery, and 1 count of third-degree felony robbery). He was also indicted in December 2009 in case No. 09CR-7859 on 1 count of second-degree felony robbery, 1 count of third-degree felony robbery, and 1 count of fourth-degree felony theft. On February 1, 2010, appellant entered guilty pleas to certain charges in all four cases: (1) in case No. 09CR-566, appellant pled guilty to 5 counts of second-degree felony robbery, (2) in case No. 09CR-331, appellant pled guilty to 3 counts of second-degree felony robbery, (3) in case No. 09CR-563, appellant pled guilty to 1 count of second-degree felony robbery, and (4) in case No. 09CR-7859, appellant pled guilty to 1 count of third-degree felony robbery. The trial court sentenced appellant to a total of 16 years incarceration in case No. 08CR-566, a total of 8 years incarceration in case No. 09CR-331, 8 years incarceration in case No. 09CR-563, and community control in case No. 09CR-7859. The sentences in case Nos. 09CR-566, 09CR-331, and 09CR-563 were to be served concurrently, with the community control period for case No. 09CR-7859 to commence upon completion of the 16-year prison sentence in case No. 09CR-566. Appellant did not file a direct appeal of the judgment of conviction or sentence in any of the four aforementioned cases.
{¶ 3} On November 23, 2016, appellant filed a pro se motion to correct, vacate, or set aside the judgments of conviction or sentences in case Nos. 09CR-566, 09CR-331, 09CR-563, and 09CR-7859. In his motion, appellant argued that his constitutional right to due process had been violated because the evidence for all but one of the cases (09CR-331) would only support third-degree felony robbery charges, not the second-degree felony robbery charges to which he pled guilty. The trial court denied appellant's motion, concluding that it was not well-taken.
II. Assignments of Error
{¶ 4} Appellant appeals and assigns the following four assignments of error for our review:
Appellant, acting pro se, filed an initial brief, setting forth one assignment of error, and a supplemental brief, setting forth four assignments of error. Because the lone assignment of error contained in his initial brief was, in substance, the same issue as set forth in the first assignment of error in his supplemental brief, we will rely on the four assignments of error contained in the supplemental brief.
[I.] Defendant-Appellant's Fifth and Fourteenth amendments the United States Constitution; and Article I, Section 10 and 16 of the Ohio Constitution, due process and equal protection of the law, where the sentence is contrary to law rendering the guilty plea invalid.(Sic passim.)
[II.] Defendant-Appellant received "ineffective assistance of counsel" in violation of the Sixth Amendment of the United States Constitution; and Article I, Section 16 of the Ohio Constitution by trial counsel's failure to challenge the felony degree of the offenses of "second degree robbery in violation of O.R.C.2911.02(A)(1)(2) where no deadly weapon or threat of harm was claimed or used in the offenses.
[III.] Trial counsel was "ineffective" in violation of the Sixth Amendment of the United States Constitution; and Article I, Section 16 of the Ohio Constitution for permitting the Defendant-Appellant to plead guilty to offenses where
evidence did not support the mens rea element of the offense of robbery in violation of R.C.2911.02(A)(1).
[IV.] The trial court lost subject matter jurisdiction to re-sentence in a plea agreement issue where the trial court sentenced on improperly indicted charges that did not meet the mens rea component of the indicted charges: Crim.R. 7(D) denies the trial court subject matter jurisdiction to change the indicted charge after judgment has been rendered.
III. Discussion
{¶ 5} Appellant's motion to correct, vacate, or set aside the trial court's judgment or sentence was a petition for postconviction relief. See State v. Reynolds, 79 Ohio St.3d 158, 160 (1997) ("[W]here a criminal defendant, subsequent to his or her direct appeal, files a motion seeking a 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."). R.C. 2953.21 provides that a person who has been convicted of a criminal offense or adjudicated a delinquent child and who claims that there was such a denial or infringement of his rights as to render the judgment void or voidable under the state or federal constitution may file a petition asking the court to vacate or set aside the judgment. R.C. 2953.21(A)(1)(a). We review a trial court's decision on a petition for postconviction relief for abuse of discretion. State v. Sidibeh, 10th Dist. No. 12AP-498, 2013-Ohio-2309, ¶ 7. An abuse of discretion occurs where the trial court's determination is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
In its memorandum in opposition to the motion before the trial court, the state asserted, in part, that to the extent appellant's motion was construed as a motion to withdraw his guilty pleas, it failed to satisfy the applicable standard. Appellant has expressly asserted that he was not seeking to withdraw his guilty pleas, and we will review the motion as a petition for postconviction relief. --------
{¶ 6} As an initial matter, we note that appellant's petition for postconviction relief was untimely. Because appellant did not file a direct appeal from his conviction, any petition for postconviction relief was required to be filed within 365 days after the expiration of the time for filing an appeal. R.C. 2953.21(A)(2). Appellant pled guilty and was sentenced on February 1, 2010, but did not file his petition for postconviction relief until November 23, 2016, which was well beyond the statutory deadline. Because the trial court considered the merits of appellant's motion, however, in the interest of justice, we will review the trial court's decision for abuse of discretion.
{¶ 7} In his first assignment of error, appellant claims his constitutional rights were violated because his sentence was contrary to law. Appellant asserts that, in all but one of the cases, the evidence was insufficient to support the second-degree felony charges to which he pled guilty because there was no evidence that he possessed a deadly weapon or that he inflicted, attempted to inflict, or threatened to inflict physical harm on another during the robberies. Plaintiff-appellee, State of Ohio, asserts this claim is barred by res judicata or, in the alternative, the claim fails on its merits.
{¶ 8} "Res judicata is applicable in all postconviction relief proceedings." State v. Szefcyk, 77 Ohio St.3d 93, 95 (1996). "Under the doctrine of res judicata, a defendant who was represented by counsel is barred from raising an issue in a petition for postconviction relief if the defendant raised or could have raised the issue at trial or on direct appeal." State v. Ibrahim, 10th Dist. No. 14AP-355, 2014-Ohio-5307, ¶ 10, citing Szefcyk at syllabus. Appellant's first assignment of error essentially challenges the sufficiency of the evidence against him, asserting that the evidence could not have supported second-degree felony charges. Appellant argues that, based on the police reports related to the charges on which he was indicted, he could have been convicted of or pled guilty to third-degree robbery, in violation of R.C. 2911.02(A)(3), rather than second-degree robbery, in violation of R.C. 2911.02(A)(1) or (2). As noted above, appellant did not file a direct appeal from his convictions or sentences. To the extent appellant sought to challenge the sufficiency of the evidence to support the charges against him, he could have raised these issues in a direct appeal. Because appellant could have, but did not, raise this issue on direct appeal, res judicata bars him from asserting it in a petition for postconviction relief. Ibrahim at ¶ 10. Therefore, the trial court did not abuse its discretion by denying appellant's motion.
{¶ 9} Accordingly, we overrule appellant's first assignment of error.
{¶ 10} In his second and third assignments of error, appellant asserts his trial counsel provided ineffective assistance. Appellant did not assert ineffective assistance of counsel in his motion for postconviction relief. Therefore, appellant has waived this issue. State v. Robinson, 10th Dist. No. 15AP-798, 2016-Ohio-952, ¶ 10. See also State v. Barrett, 10th Dist. No. 11AP-375, 2011-Ohio-4986, ¶ 13 ("It is well-settled law that issues not raised in the trial court may not be raised for the first time on appeal because such issues are deemed waived.").
{¶ 11} Accordingly, we overrule appellant's second and third assignments of error.
{¶ 12} In his fourth assignment of error, appellant asserts the trial court lacks authority to impose a lesser sentence on remand pursuant to Crim.R. 7(D). This assignment of error addresses potential remedies if the trial court's judgments or sentences were found to be invalid. Because we conclude the trial court did not abuse its discretion by denying appellant's motion, we need not reach the issue of whether the trial court has jurisdiction to impose a different sentence.
{¶ 13} Accordingly, appellant's fourth assignment of error is rendered moot by our disposition on the first assignment of error.
IV. Conclusion
{¶ 14} For the foregoing reasons, we overrule appellant's first three assignments of error and render moot his fourth assignment of error. We affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.