State v. SowardsState v. Sowards
ABELE, J.
{¶ 1} This is an appeal from a Gallia County Common Pleas Court judgment that overruled a motion filed by William S. Sowards, defendant below and appellant herein, to “vacate” his eight year prison sentence.
{¶ 2} Appellant assigns the following errors for review:
“THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-APPELLANT BY DENYING HIS MOTION TO VACATE SENTENCE WHEREAS THE VERDICT FORM SIGNED BY THE JURY FAILED TO INCLUDE THE DEGREE OF THE OFFENSE FOR WHICH THE DEFENDANT WAS CONVICTED NOR DID IT CONTAIN A STATEMENT THAT AN AGGRAVATING ELEMENT HAD BEEN FOUND. AS A RESULT THE DEFENDANT-APPELLANT WAS UNLAWFULLY SENTENCED.”
SECOND ASSIGNMENT OF ERROR:
“THE DEFENDANT-APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED TO HIM UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND THE OHIO CONSTITUTION.”
{¶ 3} On April 12, 2006, thе Gallia County Grand Jury returned an indictment charging appellant with possession of marijuana in violation of
{¶ 4} On November 12, 2008, appellant filed the instant motion to “vacate” his
{¶ 5} Appellee argued that appellant‘s motion is procedurally defective and is based on case law decided after his conviction. Appellant countered that any conviction or sentence that did not comply with
{¶ 6} On February 18, 2009, the trial court denied appellant‘s motion. In its detailed decision, the court explained that appellant‘s conviction occurred before Pelfrey and that the verdict form complied with the law as it existed at that time. Although Pelfrey was decided before Sowards I was resolved on appeal, the court noted that appellate counsel could have, but did not, raise the matter in appellant‘s first appeal of right. Finally, the court construed appellant‘s motion as a petition for postconviction relief and held that his claim is barred under the doctrine of res judicata. This appeal followed.
I
{¶ 7} In his first assignment of error, appellant asserts that the trial court erred by not
{¶ 8} Our analysis begins with a precise chronology of cases. The trial court filed appellant‘s judgment of conviction and sentence on November 30, 2006. Pelfrey was decided on February 7, 2007. Our decision in Sowards I was journalized on September 17, 2007. Appellant did not raise the Pelfrey issue during his direct appeal. Thus, as the trial court correctly noted, Pelfrey was decided after appellant‘s conviction, but before we entered final judgment on his direct appeal. Accordingly, (1) the
{¶ 9} Generally, a final judgment issued by a court of competent jurisdiction on the merits of a case is conclusive as to the rights of parties and is an absolute bar to a subsequent action. State v. Davis, 119 Ohio St.3d at 422, 894 N.E.2d 1221, 2008-Ohio-4608, ¶6; also see State ex rel. Rose v. Ohio Dept. of Rehab. & Corr. (2001), 91 Ohio St.3d 453, 455, 746 N.E.2d 1103. The Ohiо Supreme Court has also rejected the claim that “res judicata has no application where there is a change in the law due to a judicial decision of [the] court.” State v. Szefcyk (1996), 77 Ohio St.3d 93, 95, 671 N.E.2d 233. As the trial court aptly noted, appellant‘s claim is barred by the dоctrine of res judicata regardless of how appellant‘s motion is characterized.
{¶ 10} Because the Ohio Supreme Court has held that the doctrine of res judicata applies to voidable judgments, but not void judgments, appellant‘s only avenuе of relief is to show that his 2006 judgment of conviction and sentence was void ab initio. See State v. Simpkins, 117 Ohio St.3d 420, 884 N.E.2d 568, 2008-Ohio-1197, at ¶30. We do not find in Pelfrey any indication that a failure to strictly comply with
{¶ 12} First, that particular remark is included in a footnote in Justice O‘Connor‘s opinion and is, technically, obiter dicta. Second, we believe that passage involved prison sentences wholly outside those enumerated and permitted by statute, irrespective of the operation of
{¶ 13} By way of background, the Ohio Supreme Court decided State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470, 2006-Ohio-856, on February 27, 2006.3 The next month, our Tenth District colleagues remanded a case to the trial court for re-sentencing in light of Foster. See State v. Payne, Franklin App. No. 05AP-517. Less than a week later, the State filed an
{¶ 14} After our review in the case sub judice, we are not convinced that the trial court acted erroneously because the law at the time of appellant‘s conviction only required “substantial compliance” with
{¶ 15} Appellant also relies on several decisions from this Court that have enforced Pelfrey against defective verdicts. However, those cases were decided on direct appeal. In the case sub judice, we previously affirmed appellant‘s final judgment of conviction and sentence and both the Ohio and United States Supreme Court have passed on jurisdictional motions.
{¶ 16} Accordingly, because appellant‘s judgment of conviction and sentence is
II
{¶ 17} In his second assignment of error, appellant asserts that his trial counsel was constitutionally ineffective for not raising the Pelfrey verdict defect. We, however, believe that res judicata bars this argument and furthermore, even if it were not barred, we would find no merit to this argument.
{¶ 18} It is well-settled that criminal defendаnts have a right to the effective assistance from counsel. McCann v. Richardson (1970), 397 U.S. 759, 770, 90 S.Ct. 1441, 25 L.Ed.2d 763; State v. Lytle (Mar. 10, 1997), Ross App. No. 96CA2182. To establish constitutionally ineffective assistance of counsel, a defendant must show that (1) counsel‘s performance was deficient, and (2) such deficient performance prejudiced the defense and deprived him of a fair trial. See Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674; also see State v. Issa (2001), 93 Ohio St.3d 49, 67, 752 N.E.2d 904. Both prongs of the Strickland test need not be analyzed, however, if the ineffective assistance claim can be resolved under one. See State v. Madrigal (2000), 87 Ohio St.3d 378, 389, 721 N.E.2d 52. To establish the existence of prejudice, a defendant must show that a reasonable probability exists that, but for counsel‘s alleged error, the result of the trial would have been different. State v. White (1998), 82 Ohio St.3d 16, 23, 693 N.E.2d 772; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, at paragraph three of the syllabus.
{¶ 19} Even if we assume for purposes of argument that trial counsel erred by failing to
{¶ 20} It is axiomatic that trial counsel is not required to рerform a vain act in order to avoid an ineffective assistance claim. State v. Caldwell, Cuyahoga App. No. 80556, 2002-Ohio-4911, at ¶37; State v. Carter (Jul. 31, 1986), Hamilton App. No. C-840121. Here, the verdict complied with our interpretation of the law at that time and, thus, any such challenge would have constituted a vain act. Therefore, appellant cannot establish prejudice as a result of counsel failing to raise this particular argument. Absent prejudice, appellant cannot establish constitutionally ineffective assistance.
{¶ 21} Accordingly, based upon the foregoing, we herеby overrule appellant‘s second assignment of error.4
{¶ 22} Having reviewed all errors assigned and argued by appellant in his brief, and after finding merit in none, we hereby affirm the trial court‘s judgment.
JUDGMENT AFFIRMED.
{¶ 23} I respectfully concur in judgment only. Here, I would treat Sowards’ Motion tо Vacate Sentence as an untimely petition for postconviction relief. See, e.g., State v. Banks, Franklin App. No. 05AP-1062, 2006-Ohio-4225, at ¶6-7, citing State v. Reynolds, 79 Ohio St.3d 158, 1997-Ohio-304. (Furthermore, if we were to treat Sowards’ motion as something other than a petition for postconviction relief, I believe that we would lack jurisdiction to consider Sowards’ appeal. See, e.g., State v. Lemaster, Pickaway App. No. 02CA20, 2003-Ohio-4557, at ¶13-26; State v. Kaiser, Lawrence App. No. 10CA1, 2010-Ohio-4616, at ¶19-26; Banks at ¶2-3.) Accordingly, I would overrule Sowards’ assignments of error for the reasons outlined in State v. Franklin, Meigs App. No. 05CA9, 2006-Ohio-1198. First, Sowards did not file his petition for postconviction relief in a timely manner. See id. at ¶6-8, citing
{¶ 24} For these reasons, I respectfully concur in judgment оnly.
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and appellee recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
If a stay of execution of sentence and release upon bail has been previously granted, it is continued for a period of sixty days upon the bail previously posted. Thе purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the sixty day period.
The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the forty-five day period pursuant to
A certified copy of this entry shall constitute that mandate pursuant to
Harsha, P.J.: Concurs in Judgment & Opinion
Kline, J.: Concurs in Judgment Only with Opinion
For the Court
BY: Peter B. Abele, 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.