State of Ohio, Plaintiff-Appellee, v. Keith L. Jones, Defendant-Appellant.
No. 14AP-234 (C.P.C. No. 05CR-2681)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
December 30, 2014
[Cite as State v. Jones, 2014-Ohio-5758.]
DORRIAN, J.
(ACCELERATED CALENDAR)
Rendered on December 30, 2014
Ron O‘Brien, Prosecuting Attorney, and Barbara A. Farnbacher, for appellee.
Keith L. Jones, pro se.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Defendant-appellant, Keith L. Jones (“appellant“), appeals pro se from a judgment of the Franklin County Court of Common Pleas denying motions to correct or amend his sentence. Because we conclude that the trial court did not err by finding that appellant‘s motions were an untimely petition for postconviction relief and were barred by res judicata, we affirm.
{¶ 2} In February 2007, appellant pled guilty to two counts of identity fraud. Appellant failed to appear for the scheduled sentencing hearing in July 2007 and ultimately was not sentenced until December 2009. The court sentenced appellant to five years of community control. The court also notified appellant that, if he violated community control, he would receive a prison sentence of five years on each count, for a total term of imprisonment of ten years.
{¶ 3} Appellant was declared to be an absconder from probation in March 2010. The following year, the Franklin County Probation Department filed a request to revoke community control. Appellant admitted that he violated community control. In May 2011, the court revoked appellant‘s community control and imposed a ten-year term of imprisonment. Appellant appealed from the judgment, and this court affirmed. State v. Jones, 10th Dist. No. 11AP-498, 2012-Ohio-559 (“Jones I“). Appellant subsequently filed a second appeal, asserting that the trial court erred by denying a motion to dismiss based on a violation of his right to a speedy trial. State v. Jones, 10th Dist. No. 11AP-1123, 2012-Ohio-3767, ¶ 11 (“Jones II“). This court denied the appeal and affirmed the lower court‘s judgment. Id. at ¶ 29.
{¶ 4} In November 2013, appellant filed a motion captioned “Motion for Correction of Sentence Pursuant to
{¶ 5} Appellant appeals from the trial court‘s judgment, assigning two errors for this court‘s review:
Assignment of Error No. I
THE TRIAL COURT ERRED WHEN IT SENTENCED DEFENDANT-APPELLANT TO A SIXTY(60) MONTH PRISON TERM IN EACH CASE AFTER VIOLATIONS OF COMMUNITY CONTROL SANCTIONS BECAUSE IT FAILED TO FULLY COMPLY WITH THE MANDATES OF
R.C. § 2929.15(B)(2) DUE TO INADEQUATE NOTIFICATION GIVEN TO DEFENDANT-APPELLANT PURSUANT TOR.C. § 2929.19(B)(4) . THE NOTICE OF COMMUNITYCONTROL WAS ALTERED AFTER APPELLANT‘S SIGNATURE WAS AFFIXED. Assignment of Error No. II
THE TRIAL COURT‘S JUDGMENT ENTRY IMPOSED A SENTENCE DIFFERENT FROM THE ONE ANNOUNCED IN OPEN COURT IN VIOLATION OF RULE 43A OF THE CRIMINAL RULES AND PROCEDURES THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION. THE COURT FAILED TO SENTENCE APPELLANT ON EACH COUNT OF CONVICTION TO COMMUNITY CONTROL.
{¶ 6} Pursuant to
{¶ 7} The court below found that appellant‘s motions were untimely and that he failed to satisfy any of the criteria for filing an untimely petition for postconviction relief. With certain exceptions, a petition for postconviction relief must be filed within 180 days of the trial transcript being filed in the court of appeals in the direct appeal of the judgment of conviction or, if no direct appeal is taken, within 180 days of the end of the time for filing an appeal.
{¶ 8} The statute provides that a court may entertain an untimely petition for postconviction relief where the petitioner shows that he was unavoidably prevented from discovery of the facts upon which he relies in presenting the claim or that the United States Supreme Court recognized a new federal or state right that applies retroactively and that he is asserting a claim based on that right.
{¶ 9} The court below also concluded that appellant‘s motions were barred by res judicata. “Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel 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.” State v. Perry, 10 Ohio St.2d 175 (1967), paragraph nine of the syllabus. “It is established that, pursuant to res judicata, a defendant cannot raise an issue in a motion for postconviction relief if he or she could have raised the issue on direct appeal.” Reynolds at 161, citing State v. Duling, 21 Ohio St.3d 13 (1970). See also State v. Melhado, 10th Dist. No. 13AP-114, 2013-Ohio-3547, ¶ 10 (“A trial court may also dismiss a petition for post-conviction relief if it determines that the doctrine of res judicata is applicable.“).
{¶ 10} Although appellant did not file a direct appeal of the judgment sentencing him to serve community control in December 2009, he filed a direct appeal of the May 5, 2011 judgment entry revoking the community control and imposing a ten-year prison term. In that appeal, appellant was represented by appointed counsel, who assigned a single error for review on appeal. Appellant also insisted that the court address two additional issues that were not included in his counsel‘s appellate brief. Jones I at ¶ 1-2.
{¶ 11} We conclude that the issues raised in appellant‘s motions could have been asserted in a direct appeal from the December 2009 judgment imposing community control or in appellant‘s direct appeal of the May 5, 2011 judgment revoking community control and imposing a prison sentence. Because appellant did not assert these issues in a direct appeal from the judgment, the court below did not err by concluding that appellant was barred by res judicata from raising them in a petition for postconviction relief.
{¶ 12} Finally, we note that, in Jones I, we stated that “[a]t the time Jones was sentenced, years following his guilty pleas, he was clearly advised that if he failed to successfully complete community control this time, he would serve ten years of incarceration.” Jones I at ¶ 5. In Jones II, we noted that “the court * * * sentenced defendant to five years of community control, and informed defendant that he would go to prison for five years on each count if he violated his community control.” (Emphasis added.) Jones II at ¶ 8. The transcript of the sentencing hearing reflects this notification and that appellant was present at the sentencing hearing.
{¶ 13} For the foregoing reasons, we overrule appellant‘s two assignments of error and affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
TYACK and KLATT, JJ., concur.