STATE OF OHIO v. MATTHEW OSBORN
Case No. 18CA1064
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ADAMS COUNTY
Released: 09/21/18
[Cite as State v. Osborn, 2018-Ohio-3866.]
DECISION AND JUDGMENT ENTRY
Matthew Osborn, Chillicothe, Ohio, Appellant, pro se.
David Kelley, Adams County Prosecuting Attorney, and Kris Blanton, Assistant Adams County Prosecuting Attorney, West Union, Ohio, for Appellee.
McFarland, J.
{¶1} Appellant, Matthew Osborne, appeals from the trial court‘s denial of his “Motion to Correct Sentence.” On appeal, Appellant contends that 1) he was denied effective assistance of counsel; and 2) the lower court committed prejudicial error in creating its own sentence. Because Appellant‘s claim of ineffective assistance of counsel contained in his first assignment of error constituted an untimely petition for post-conviction relief, the trial court lacked jurisdiction to address it and should have dismissed rather than denied it. Next, because Appellant failed to raise
{¶2} Accordingly, we find no merit to either of Appellant‘s assignments of error and they are overruled. However, in light of our finding that the trial court lacked jurisdiction to consider the constitutional ineffective assistance of counsel claim contained in Appellant‘s first assignment of error, under the authority of
FACTS
{¶3} In April of 2016, as part of an agreed plea and sentence arrangement, Appellant pleaded guilty to one count of rape, a first-degree felony in violation of
{¶4} In his motion, Appellant claimed “that the sentence imposed contain[ed] statutory defects that are not in compliance with the legislature.” He argued that the trial court had sentenced him “in lieu of minimum sanctions as mandated by the legislature.” Appellant‘s motion further stated that “the charge itself of Rape, a violation of
ASSIGNMENTS OF ERROR
“I. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
II. THE LOWER COURT COMMITTED PREJUDICIAL ERROR IN CREATING THEIR OWN SENTENCE.”
ASSIGNMENT OF ERROR I
{¶6} In his first assignment of error, Appellant contends that he was denied the effective assistance of counsel at the trial court level. We initially note that before we can review the denial of Appellant‘s “Motion to Correct Sentence,” we first need to determine how to characterize the motion. As this Court recently explained in State v. Brown, supra, and as relied upon by
{¶7} The Supreme Court of Ohio has held that “[w]here 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 post-conviction relief as defined in
{¶8} “[P]ost-conviction relief petitions are used to assert claims that there was a denial or infringement of the person‘s rights as to render the judgment void or voidable under the Ohio or United States Constitutions.” State v. Kelly, 4th Dist. Scioto No. 14CA3637, 2014-Ohio-5840, ¶ 4. “It is
{¶9} A trial court‘s decision to grant or deny a
{¶10} Here, Appellant‘s “Motion to Correct Sentence” included a constitutional claim alleging ineffective assistance of counsel and therefore
{¶11} However, there are limitations with regard to the filing of a post-conviction relief petition, as well as strict filing requirements. In particular,
{¶12} Here, Appellant‘s “Motion to Correct Sentence” was clearly filed outside of the 365 days after the expiration of the time for filing the notice of appeal and therefore constitutes an untimely petition for post-conviction relief. Further, Appellant did not argue the applicability of either exception set forth in
ASSIGNMENT OF ERROR II
{¶13} The arguments raised in Appellant‘s second assignment of error are opaque. First, he seems to argue that his actions which formed the basis of the rape charge below were “amoral” and “questionable,” but not “illegal under Ohio law.” Appellant further describes his seven-year prison sentence as “perverse,” claims there was a “mandatory provision” added to his sentence that was not agreed to (but does not explain what that provision was), and also simply states “the substantial compliance standard mandated by
{¶14} We initially note that Appellant failed to provide this Court with copies of the plea and sentencing hearing transcripts. “When portions of the transcript necessary for resolution of assigned errors are omitted from
{¶15} We also note that some of the arguments raised under this assignment of error were not contained in his “Motion to Correct Sentence,” and thus, are being raised for the first time on appeal. In particular, Appellant‘s underlying motion did not allege failure to comply with
{¶16} Appellant‘s remaining claims are non-constitutional claims, which seem to challenge both his conviction and sentence. Specifically, Appellant appears to contend that his actions did not constitute the crime of rape and that his seven-year prison sentence was excessive. Initially, we note that the record indicates Appellant pleaded guilty to first-degree felony rape as charged in the indictment. Again, the record before us does not contain the plea or sentencing hearing transcripts and we must presume the regularity of those proceedings. Further, the record indicates that Appellant pleaded guilty in exchange for an agreed-upon seven year prison term.
{¶18} Moreover, a petitioner generally cannot raise, for purposes of post-conviction relief, “an error that could have been raised on direct appeal.” State v. Hobbs, 4th Dist. Meigs No. 09CA1, 2009–Ohio-7065, ¶ 5. “In other words, if a petitioner fails to bring an appeal as of right, he cannot raise in a petition for postconviction relief those issues that should have been raised in a direct appeal.” Id. (Citations omitted.) As explained in State v. Szefcyk, 77 Ohio St.3d 93, 95, 671 N.E.2d 233 (1996):
“Res judicata is applicable in all postconviction relief proceedings. * * * ’ “[P]ublic policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest, and that matters once tried
shall be considered forever settled as between the parties.” [Citation omitted.] We have stressed that “[the] doctrine of res judicata is not a mere matter of practice or procedure inherited from a more technical time than ours. It is a rule of fundamental and substantial justice, ‘of public policy and of private peace,’ which should be cordially regarded and enforced by the courts. * * *” [Citation omitted.]’ ” Citing Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 401, 101 S.Ct. 2424 (1981).
Here, Appellant failed to file a direct appeal. Because these non-constitutional claims could have raised in a timely direct appeal but were not, they are now barred by res judicata. State v. Brown, supra, at ¶ 35; citing State v. Knowles, 10th Dist. Franklin No. 15AP–991, 2016–Ohio-2859, ¶ 14. Accordingly, Appellant‘s second assignment of error is overruled.
CONCLUSION
{¶19} Based on the foregoing, we overrule both of Appellant‘s assignments of error. Appellant‘s constitutional claim raised under his first assignment of error is barred as it is an untimely petition for post conviction relief. As a result, and as set forth above, the trial court lacked jurisdiction to consider it and should have dismissed, rather than denied, the claim. Accordingly, the judgment appealed is affirmed but modified, under the authority of
JUDGMENT AFFIRMED AS MODIFIED.
It is ordered that the JUDGMENT BE AFFIRMED AS MODIFIED and costs be assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Adams 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 BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Hoover, P.J.: Concurs in Judgment and Opinion.
Abele, J.: Concurs in Judgment Only.
For the Court,
BY: _________________________
Matthew W. McFarland, 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.