State v. ReynoldsState v. Reynolds
For Plaintiff-Appellee: JAMES J. MAYER, JR., RICHLAND COUNTY PROSECUTOR, 38 S. Park St., Mansfield, Ohio 44902. KIRSTEN PSCHOLKA-GARTNER, 0077792, Assistant Prosecuting Attorney (Counsel of Record)
For Defendant-Appellant: KEITH B. REYNOLDS, pro se, Inmate Number A514-531, Ross Correctional Institution, P.O. Box 7010, Chillicothe, Ohio 45601
{¶1} Defendant-Appellant, Keith Reynolds, appeals from the judgment of the Richland County Court of Common Pleas, denying his Motion to Vacate Judgment pursuant to
{¶2} On November 10, 2005, the Richland County Grand Jury indicted Appellant on two counts of illegal conveyance of drugs of abuse onto grounds of a detention facility in violation of
{¶3} A jury trial commenced on November 2, 2006. The jury found Appellant guilty as charged. By judgment entry filed November 7, 2006, the trial court sentenced Appellant to an aggregate term of five years in prison.
{¶4} Appellant filed a direct appeal of his conviction, claiming ineffective assistance of counsel based on trial counsel‘s failure to challenge for cause the seating of a particular juror and based on trial counsel‘s failure to object to testimony regarding a homosexual relationship between Appellant and the inmate to whom he was sending drugs. This court affirmed Appellant‘s convictions on December 3, 2007. See State v. Reynolds, 5th Dist. No. 06CA101, 2007-Ohio-6473.
{¶5} Subsequently, Appellant filed a pro se appeal to the Ohio Supreme Court, challenging the decision of this court. The Supreme Court declined to accept jurisdiction. State v. Reynolds, 117 Ohio St.3d 1460, 884 N.E.2d 68, 2008-Ohio-1635
{¶6} Appellant additionally filed a pro se motion to modify sentence on December 16, 2006. In that motion, he alleged juror misconduct, trial court misconduct,
{¶7} On October 27, 2008, Appellant filed a Motion to Vacate Judgment pursuant to
{¶8} Appellant raises three Assignments of Error:
{¶9} “I. THE TRIAL COURT ERRED WHEN IT STATED AT FOOTNOTE THREE OF IT‘S [SIC] ‘CONCLUSION OF LAW/RECOMMENDED JUDGMENT’ THAT ‘IT SHOULD BE NOTED THAT MR. REYNOLD‘S [SIC] CLAIM WOULD FAIL BECAUSE HIS CONVICTIONS WERE NOT ENHANCED OFFENSES AND THUS
{¶10} “II. THE TRIAL COURT ERRED WHEN IT MISCONSTRUED APPELLANT‘S
{¶11} “III. THE TRIAL COURT ERRED WHEN IT BARRED APPELLANT‘S ARGUMENTS RES JUDICATA.”
I, II, & III
{¶12} Appellant filed his motion to vacate judgment pursuant to
{¶13} The Supreme Court recently held, “the plain language of
{¶14} As, the Supreme Court in Schlee pointed out,
{¶15} The court in Schlee determined that a motion for relief from judgment may be treated as a petition for post-conviction relief even when the motion has been unambiguously presented as a
{¶16} “Schlee‘s
{¶17} Appellant‘s motion for relief from judgment could have been filed as a post-conviction relief petition or are issues that could have been raised in his direct appeal, as the issues raised are matters that were contained within the original record. In fact, Appellant has previously filed a post-conviction petition and a direct appeal, and could have raised the issue of whether his conviction under
{¶18} Having had a prior opportunity to litigate the claims that Appellant sets forth in his latest motion, Appellant‘s arguments are barred under the doctrine of res judicata. State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104. The Perry court explained the doctrine at 180-181 as follows:
{¶20} Accordingly, the trial court did not err in treating Appellant‘s motion as a petition for post-conviction relief or in declaring the claims barred by the doctrine of res judicata.
{¶21} Moreover, the trial court correctly indicated in its footnote that Appellant‘s claims would not survive on the merits as
{¶22} The illegal conveyance statute found in
{¶23} “(A) No person shall knowingly convey, or attempt to convey, onto the grounds of a detention facility or of an institution, office building, or other place that is under the control of the department of mental health, the department of mental retardation and developmental disabilities, the department of youth services, or the department of rehabilitation and correction any of the following items:
{¶24} “(1) Any deadly weapon or dangerous ordnance, as defined in section
{¶26} “(3) Any intoxicating liquor, as defined in section
{¶27} “(B) Division (A) of this section does not apply to any person who conveys or attempts to convey an item onto the grounds of a detention facility or of an institution, office building, or other place under the control of the department of mental health, the department of mental retardation and developmental disabilities, the department of youth services, or the department of rehabilitation and correction pursuant to the written authorization of the person in charge of the detention facility or the institution, office building, or other place and in accordance with the written rules of the detention facility or the institution, office building, or other place.
{¶28} “(C) No person shall knowingly deliver, or attempt to deliver, to any person who is confined in a detention facility, to a child confined in a youth services facility, to a prisoner who is temporarily released from confinement for a work assignment, or to any patient in an institution under the control of the department of mental health or the department of mental retardation and developmental disabilities any item listed in division (A)(1), (2), or (3) of this section.
{¶29} “(D) No person shall knowingly deliver, or attempt to deliver, cash to any person who is confined in a detention facility, to a child confined in a youth services facility, or to a prisoner who is temporarily released from confinement for a work assignment.
{¶31} “(F)(1) It is an affirmative defense to a charge under division (A)(1) of this section that the weapon or dangerous ordnance in question was being transported in a motor vehicle for any lawful purpose, that it was not on the actor‘s person, and, if the weapon or dangerous ordnance in question was a firearm, that it was unloaded and was being carried in a closed package, box, or case or in a compartment that can be reached only by leaving the vehicle.
{¶32} “(2) It is an affirmative defense to a charge under division (C) of this section that the actor was not otherwise prohibited by law from delivering the item to the confined person, the child, the prisoner, or the patient and that either of the following applies:
{¶33} “(a) The actor was permitted by the written rules of the detention facility or the institution, office building, or other place to deliver the item to the confined person or the patient.
{¶34} “(b) The actor was given written authorization by the person in charge of the detention facility or the institution, office building, or other place to deliver the item to the confined person or the patient.
{¶35} “(G)(1) Whoever violates division (A)(1) of this section or commits a violation of division (C) of this section involving an item listed in division (A)(1) of this section is guilty of illegal conveyance of weapons onto the grounds of a specified
{¶36} “(2) Whoever violates division (A)(2) of this section or commits a violation of division (C) of this section involving any drug of abuse is guilty of illegal conveyance of drugs of abuse onto the grounds of a specified governmental facility, a felony of the third degree. If the offender is an officer or employee of the department of rehabilitation and correction or of the department of youth services, the court shall impose a mandatory prison term.
{¶37} “(3) Whoever violates division (A)(3) of this section or commits a violation of division (C) of this section involving any intoxicating liquor is guilty of illegal conveyance of intoxicating liquor onto the grounds of a specified governmental facility, a misdemeanor of the second degree.
{¶38} “(4) Whoever violates division (D) of this section is guilty of illegal conveyance of cash onto the grounds of a detention facility, a misdemeanor of the first degree. If the offender previously has been convicted of or pleaded guilty to a violation of division (D) of this section, illegal conveyance of cash onto the grounds of a detention facility is a felony of the fifth degree.
{¶39} “(5) Whoever violates division (E) of this section is guilty of illegal conveyance of a communications device onto the grounds of a specified governmental facility, a misdemeanor of the first degree, or if the offender previously has been convicted of or pleaded guilty to a violation of division (E) of this section, a felony of the fifth degree.”
{¶41} The defendant in Pelfrey was convicted of tampering with records, a felony of the third degree pursuant to
{¶42} The jury in Pelfrey convicted the defendant specifically of tampering with records, “as charged in the indictment.” Pelfrey, at ¶ 17 (O‘Donnell, J., dissenting). The jury failed to explicitly find that the records belonged to a governmental entity, nor did they specify that they were convicting him of a third-degree felony.
{¶43} Pelfrey argued that under
{¶44} Pelfrey does not control in this case because the tampering with records statute only prohibits a single type of conduct. Kepiro, supra, at ¶33. “Depending on the attendant circumstances, that conduct can be punished in varying ways. This is similar, for example, to the theft statute, which, more or less prohibits ‘stealing.’ See
{¶45}
By: Delaney, J.
Farmer, P.J. and
Gwin, J. concur.
HON. PATRICIA A. DELANEY
HON. SHEILA G. FARMER
HON. W. SCOTT GWIN
JUDGMENT ENTRY
For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Richland County Court of Common Pleas is affirmed. Costs assessed to Appellant.
HON. PATRICIA A. DELANEY
HON. SHEILA G. FARMER
HON. W. SCOTT GWIN