2012 Ohio 6292
Ohio Ct. App.2012Background
- Joey Westbrook was convicted of various drug offenses and later resentenced to 16 years after an appellate remand.
- Appointed counsel filed an Anders brief indicating no meritorious issues; counsel withdrew.
- Westbrook filed a Civ.R. 60(B) motion seeking relief from judgment and reconsideration of sentence.
- Trial court treated the Civ.R. 60(B) motion as Crim.R. 35 post-conviction relief and found it untimely under R.C. 2953.21/2953.2(A)(2).
- Westbrook filed a pro se response raising multiple issues that could have been raised on direct appeal, which the court deemed barred by res judicata.
- The Court of Appeals affirmed the judgment, holding no arguable merit in the asserted issues and authorizing the cost shifting and execution of judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Civ.R. 60(B) motion was correctly treated as a Crim.R. 35 post-conviction petition | Westbrook (Bradley/Westbrook) argues Civ.R. 60(B) is controlling; trial court misapplied timeliness. | Westbrook’s motion was properly recast as Crim.R. 35 and untimely under R.C. 2953.2(A)(2). | Yes; trial court correctly treated as post-conviction relief and untimely. |
| Whether Westbrook’s pro se claims were barred by res judicata | Westbrook asserts new theorys and constitutional claims not previously decided. | Claims were or could have been raised on direct appeal; res judicata applies. | Yes; claims barred by res judicata. |
| Whether appellate counsel had meritorious issues for Anders appeal | Counsel checked the record; no meritorious issues identified. | N/A | No arguable merit found; Anders withdrawal granted; judgment affirmed. |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (procedural framework for Anders briefs in criminal appeals)
- Schlee v. State, 117 Ohio St.3d 153 (2008-Ohio-545) (Crim.R. 57(B) guidance; recasting irregular motions to fit governing standards)
- State v. Perry, 10 Ohio St.2d 175 (1967) (res judicata; finality of prior adjudication)
- State v. Saxon, 109 Ohio St.3d 176 (2006-Ohio-1245) (res judicata; finality and preclusion of later claims)
- State v. Schlee, 117 Ohio St.3d 153 (2008-Ohio-545) (Crim.R. 57(B) authority; procedure when no specific rule applies)