STATE OF OHIO v. JERRY ROSE
CASE NO. CA2012-03-050
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
12/17/2012
[Cite as State v. Rose, 2012-Ohio-5957.]
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR07-07-1192
Rion, Rion & Rion, L.P.A., Inc., Jon Paul Rion, 130 West Second Street, Suite 2150, Dayton, Ohio 45402, for defendant-appellant
S. POWELL, P.J.
{¶ 1} Defendant-appellant, Jerry Rose, appeals the denial of his postconviction request for a restitution and resentencing hearing. We affirm the trial court as Rose did not meet the procedural requirements for postconviction relief and his issues were either previously raised or could have been raised.
{¶ 2} Rose pled guilty in the Butler County Common Pleas Court in 2007 to three felonies in connection with a fraudulent investment operation. Several months later, as part
{¶ 3} Rose appealed his conviction, but his direct appeal was denied. Subsequent postconviction motions were also unsuccessful. Rose next moved for a restitution and resentencing hearing. The trial court denied the motion, finding it barred by res judicata. Rose appeals that determination, presenting a single assignment of error for our review:
{¶ 4} THE TRIAL COURT ERRED IN DENYING APPELLANT‘S REQUEST FOR A RESTITUTION AND RESENTENCING HEARING[.]
{¶ 5} Under his assignment of error, Rose argues that: he is entitled to be resentenced because his sentence was based on his investor-victims’ financial losses, which, he claims, were later proven false; he is entitled to a restitution hearing under
{¶ 6} Rose claims that reports from the court-appointed receiver generated after the sentencing hearing indicate the actual net loss for the investor-victims may be roughly half the amount of the $17.7 million restitution order. Rose argues the trial court was likely influenced by the erroneous claims of the victims, resulting in a lengthy prison sentence, and he is entitled to be resentenced after a restitution hearing is held.
{¶ 7} According to the record, Rose raised the argument that error was occasioned when victim-investors inflated their losses in his December 2009 “Motion to Vacate Plea; Motion to Vacate Sentence; Alternatively, Petition for Post Conviction Relief.” The trial court denied the motion, finding that the “claimed discrepancies did not amount to ‘new evidence’ in the case.” Rose appealed. See State v. Rose, 12th Dist. No. CA2010-03-059, 2010-Ohio-5669.
{¶ 9} This court found that the information regarding the investors’ losses did not qualify as newly discovered evidence for purposes of a Crim.R. 32.1 motion to withdraw his plea. This court also found that Rose was not unavoidably prevented from discovering those facts for his successive petition for postconviction relief.
{¶ 10} Specifically, this court stated that, “[h]aving provided the financial records associated with the criminal scheme to the receiver, appellant [Rose] has not established he was unavoidably prevented from discovering the records. Appellant was in the best position to know the financial records relevant to the case.” Id. at ¶ 26.
{¶ 11} In the instant appeal, Rose again raises the argument that error occurred when the investors made false claims about their losses. This time, Rose raises the argument within the context of restitution and resentencing.
{¶ 12} The financial sanctions section of the applicable version of
{¶ 13} If the court decides to impose restitution, the court shall hold a hearing on restitution if the offender, victim, or survivor disputes the amount.
{¶ 14} Where a criminal defendant, subsequent to his direct appeal, files a motion
{¶ 15} The remedy set forth in
{¶ 16} A petition for postconviction relief, however, does not provide a petitioner a second opportunity to litigate his or her conviction, nor is the petitioner automatically entitled to an evidentiary hearing on the petition. State v. Hessler, 10th Dist. No. 01AP-1011, 2002-Ohio-3321, ¶ 32.
{¶ 17} Pursuant to
{¶ 18} As previously stated by the trial court and this court, Rose was aware of the information contained in the financial records he provided to the receiver before restitution was ordered. Rose‘s petition does not fall within the parameters outlined in
{¶ 19} In addition, the other significant restriction on Ohio‘s statutory procedure for postconviction relief is the doctrine of res judicata. State v. Rutledge, 10th Dist. No. 11AP-853, 2012-Ohio-2036, ¶ 12.
{¶ 21} To overcome the res judicata bar, evidence offered dehors or outside the record must demonstrate that the petitioner could not have appealed the constitutional claim based upon information in the original record. State v. Lawson, 103 Ohio App. 3d 307, 315 (12th Dist. 1995).
{¶ 22} As previously noted, the evidence presented to determine restitution was provided by Rose to the receiver and the claims upon which the trial court relied to determine restitution were made part of the record. Rose‘s assertions about the investors-victims’ claimed losses and the restitution order are barred by res judicata, and, hence, the trial court did not err in failing to hold a hearing. Lawson; see State v. Mason, 10th Dist. Nos. 12AP-120, 12AP-121, 2012-Ohio-4510.
{¶ 23} Accordingly, we find that res judicata and the lack of jurisdiction to consider Rose‘s postconviction petition bars his requested relief. Rose is not entitled to a resentencing hearing, and his single assignment of error is overruled.
{¶ 24} Judgment affirmed.
RINGLAND and HENDRICKSON, JJ., concur.