Case Information
*1
[Cite as
State v. Ward
,
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT State of Ohio, :
Plaintiff-Appellee, : No. 16AP-774 (C.P.C. No. 97CR-270) v. :
(ACCELERATED CALENDAR) Rex S. Ward, :
Defendant-Appellant. :
D E C I S I O N Rendered on June 20, 2017 On brief: Ron O'Brien , Prosecuting Attorney, and Kimberly M. Bond , for appellee.
On brief: Rex S. Ward , pro se.
APPEAL from the Franklin County Court of Common Pleas
BROWN, J. This is an appeal by defendant-appellant, Rex S. Ward, from a judgment of
the Franklin County Court of Common Pleas denying his "motion to vacate a void judgment entry and sentence." On January 17, 1997, appellant was indicted on two counts of kidnapping,
two counts of aggravated burglary, threе counts of robbery, four counts of rape, three counts of theft, four counts of receiving stolen property, one count of aggravated robbery, and one count of felonious assault. On October 17, 1997, appellant entered a guilty plea to all counts of the indictment. By entry filed February 11, 1998, the trial court sentеnced appellant to an aggregate term of 38 years incarceration.
{¶ 3} On June 30, 2006, appellant filed a motion for leave to file a delayed appeal from the trial court's 1998 judgment. By entry filed August 8, 2006, this court denied appellant's motion (and subsequently denied his application for reconsideration).
{¶ 4} On Dеcember 22, 2014, appellant filed a pro se motion to withdraw his guilty plea pursuant to Crim.R. 32.1. In the accompanying memorandum in support, appellant argued the trial court improperly imposed post-release control and that the court failed to notify him of his right to appeal and the mandatory naturе of the sentences. By decision and entry filed July 29, 2015, the trial court denied appellant's motion to withdraw his plea.
{¶ 5}
Following an appeal, this court affirmed the judgment of the trial court
holding that appellant filed his post-sentencing motion to withdraw his guilty plea after
an unreasonably long delay and that he failed to dеmonstrate prejudice and manifest
injustice based on the procedural defects alleged.
See State v. Ward,
10th Dist. No. 15AP-
794,
{¶ 6} On June 22, 2016, appellant filed a pro se motion to "vacate a void judgment entry and sentence." In his accompanying memorandum in support, appellant argued in part: "Because [the trial court] did not specify what sentences it was imposing as mandatory, it can only be seen as the entire sentence of thirty eight (38) years was ordered mandatory." On July 6, 2016, plaintiff-appellee, State of Ohio, filed a memorandum contra appellant's motion to vacate arguing that, construed as a petition for post-conviction relief, appellant's petition was untimely and barred by the doctrine of res judicata. By decision and entry filed October 24, 2016, the trial court denied
appellant's motion to vacate, construing the motion as a petition for post-conviction relief and finding it to be untimely. In its decision, the trial court further noted the Tenth District Court of Appeals had "previously confirmed" there was no error in the sentencing entry. On appeal, appellant sets forth the following assignment of error for this
court's review:
THE TRIAL COURT ERRED IN RECASTING THE DEFENDANT-APPELLANT'S MOTION TO VACATE A VOID JUDGMENT AND SENTENCE AS A POSTCONVICTION PETITION AND ERRED IN FAILING TO VACATE THE VOID SENTENCE AND JUDGMENT VIOLATING THE DEFENDANT-APELLANT'S DUE PROCESS AND EQ[U]AL PROTECTION RIGHTS SECURED BY BOTH THE UNITED STATES AND OHIO CONSTITUTIONS.
{¶ 9}
Under his single assignment of error, appellant contends the trial court
erred by improperly recasting his motion to vacate as a petition for post-conviction relief
and in failing to vacate a "void" sentence and judgment. As to his latter argument,
appellant asserts the trial court's 1998 sentencing entry failed to reflect what actually
happened at the plea and sentencing hearings. Specifically, appellant contends the trial
court imposed a void sentence by imposing a blanket mandatory рrison term, failing "to
specify as to which count of the convictions the mandatory prison term applies."
We first consider appellant's contention that the trial court erred in
recasting his motion to vacate as a petition for post-conviction relief. In general, a post-
conviction relief proceeding "is a collateral civil attack on a judgment."
State v. King,
8th
Dist. No. 103947,
trial court held in part:
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 *4 violated, such a motion is a petition for post-conviction relief as defined in R.C. 2953.21."
When no direct appeal is taken, a defendant must file any petition for post-conviction relief within 365 days after the expiration of the time to file a direct appeal. Defendant did not file a timely appeal and the time to file an appeal expired in early March, 1998, thirty days after the journalization of the sentencing entry on February 11, 1998. Therefore, any post- conviction petition would have been due in March of 1999. Additionally, Defendant has not demonstrated that one of the exceptions in R.C. 2953.23(A) applies as such, Defendant's Motion is denied as untimely.
Additionally, even if Defendant's Motion was timely filed, the sentencing Court informed Defendant that a prison term was mandatory pursuant to R.C. 2929.13(F), which requirеd a mandatory sentence for rape. The sentencing Court then imposed determinate sentences for each offense, consistent with Senate Bill 2. In this Court's Decision of July 29, 2015 on Defendant's Motion to Withdraw his Guilty Plea, this Court inadvertently interchanged the sentencing Court's use of the word "determinate" with "mandatory." However, this had no effect on this Court's analysis or Decision and is not pertinent to Defendant's current Motion, as there was no mistake in the original sentencing entry, which was previously confirmed by the 10th District Court of Appeals.
(Citation omitted.)(Oct. 26, 2016 Decision & Entry at 2-3.) Underlying appellant's contention that the trial court erred in treating his
motion as a petition for post-conviction relief is the premise that his 1998 sentence is
void. In his pro se brief, appellant asserts the trial court failed to impose a mandatory
prison term until it filed its judgment entry "nearly one month after the sentencing
hearing," and he maintains that the trial court's action constituted a violation of his due
process and equal protection rights.
In
State v. Muhumed,
10th Dist. No. 11AP-1001,
defendant filed a motion to vacate and correct void sentence, arguing in part that "the trial
court failed to inform him of the mandatory nature of his sentences." This court
construed the defendant's motion to vacate as a petition for post-conviction relief where
such motiоn was brought after the time to file a direct appeal had expired and after the
defendant's request for leave to file a delayed appeal was denied.
Id.
at ¶ 52, citing
State
*5
v. Cataraso,
4th Dist. No. 01CA2636,
{¶ 14}
Other Ohio courts have construed motions to vacate a void sentence on
grounds that the court failed to propеrly inform a defendant of the mandatory nature of
the sentence as petitions for post-conviction relief.
See State v. Vancleve,
12th Dist. No.
CA2016-06-039,
{¶ 15}
Upon review of the record in this case, we find no error by the trial court in
construing apрellant's motion as a petition for post-conviction relief and in finding it to be
untimely. However, even if the motion was timely, appellant's claims are barred by the
doctrine of res judicata. Under this doctrine, an individual is barred from "raising a
defense or claiming a lack of due process that was or could have been raised at trial or on
direct appeal."
State v. Hohvart,
7th Dist. No. 07 MA 95,
{¶ 16}
As noted, appellant maintains he was entitled to raise his motion outside
the parameters of a petition for post-conviction relief based on his assertion that his
sentence was void, i.e., appellant contends the trial court failed to properly inform him of
the mandatory nature of his rape sentences. Further, premised on his claim that the
sentence was void, appellant argues that the doctrine of res judicata is inapplicable.
In general, "the Ohio Supreme Court has applied its void-sentence analysis
in limited circumstances."
State v. Culgan,
9th Dist. No. 09CA0060-M,
in cases challenging a trial court's alleged failure to advise a defendant that his or her
sentence is mandatory, "concluding that a trial court's failure to state that а prison term is
*6
mandatory does not render the sentence void."
Vancleve
at ¶ 17.
See also State v. Jones,
9th Dist. No. 10CA0022,
court's failure to inform him of the mandatory nature of his sentence for rape resulted in a void sentence, holding in part: "By operation of law, the sentences imposed on Vancleve for his rape conviсtions were mandatory. * * * Regardless of whether the mandatory nature of the rape sentences was conveyed to Vancleve, the validity of the imposed sentences was not affected. Vancleve's sentence, therefore, was not void." Id. at ¶ 18. The court further held that, pursuant to R.C. 2929.19(B)(7), the trial court's failure tо inform the appellant "of the mandatory nature of his prison sentences does not result in a voidable, or reversible, error as '[t]he failure of the court to notify the offender that a prison term is a mandatory prison term' has no 'affect [on] the validity of the imposed sentence or sentences.' " Id. at ¶ 19. In the present case, in addition to finding that appellant's petition was
untimely, the trial court noted that this court had previously addressed and rejected the arguments presented in his motion to vacate. We agree. In Ward I, this court, in reviewing appellant's appeal from the trial court's denial of his motion to withdraw guilty plеa, addressed his claim that the trial court erred in failing to properly notify him that his sentence would include mandatory time, holding in part:
Ward asserts that he was not informed that his sentences would be mandatory and the transcript and plea form are devoid of such language. However, Ward concedes that the judgment entry containing the record of his conviction and sentence did contain the required language on mandatory prison terms.
* * *
Ward does not explain how he was prejudiced by the defects he alleges occurred in his plea and sentencing hearings in *7 1997 and 1998 * * *. While the trial court was required to substantially comply with Crim.R. 11 as to thе defects Ward alleges, that is, to explain the mandatory nature of the sentences being imposed, * * * the trial court's failure to do so under the requirements of Crim.R. 11 does not abridge the Constitution and "will not invalidate a plea unless the defendant thereby suffered prejudice. * * * The trial court did not abuse its discretion in finding that Ward has not sufficiently shown that this defect in the proceeding resulted in prejudice. * * * Ward does not argue or aver that, if he had realized his sentence would include mandatory time (or even if everything relating to his plea had been procedurally perfect), he would not have pled guilty anyway. Under the factual circumstаnces of this case, we lack a basis from which to conclude that, even if there were defects in the plea proceedings, prejudice or a manifest injustice occurred such that the trial court abused its discretion in failing to permit Ward to withdraw his plea post-sentence.
Id. at ¶ 8, 14. Further, in Ward II, we addressed and rejected the argument raised by
appellant in his current mоtion to vacate that his rape convictions did not require a mandatory prison term, holding in part:
Finally, Ward argues that, in a footnote, we erred in finding that Ward was properly sentenced to mandatory time for rape when we noted that:
[I]n 1997 and 1998, when Ward pled guilty and was sentenced, "mandatory prison term" was defined in rеlevant part as "[t]he term in prison that must be imposed for the offenses or circumstances set forth in division (F)(1) to (8) of section 2929.13." 1995 Ohio Am.Sub.H.B. No. 180. As written at that time, R.C. 2929.13(F)(2) provided that the court "shall not reduce the terms" of imprisonment imposed for, among other offenses, "[r]ape." Accordingly, at least some parts of Ward's sentence were required to be mandatory prison terms as the phrase was then defined.
* * *
Ward argues that this is incorrect because R.C. 2929.13(F)(2) as then-constituted read:
[T]he court shall impose a prison term * * * and * * * shall not reduce the terms * * * for any of the following offenses: *8 * * *
(2) Rape, felonious sexual penetration, or an attеmpt to commit rape or felonious sexual penetration by force when the victim is under thirteen years of age[.] Ward argues that the limiting language, "when the victim is under thirteen years of age," should be read to apply not just to "attempt[s]" but also to accomplished acts of "[r]ape [and] felonious sexual penetration." * * * This is not accurate. Rather the language, "an attempt to commit rape or felonious sexual penetration by force when the victim is under thirteen years of age," is the third item in a disjunctive list where the first two items are "[r]ape" and "felonious sexual penetration." R.C. 2929.13(F)(2) (1997). In other words, the age limit language is part of the third list item, not a limiter of the entire list.
* * *
R.C. 2929.13(F)(2), even as constituted when Ward was convicted and sentenced, provided mandatory prison time for rape regardless of the age of the victim and the legislature's later alterations merely to "clarify" the language to prevent persons from committing exaсtly the error in interpretation that Ward now makes. Thus, as noted by the trial court, this court previously addressed and
rejected claims by appellant regarding purported error in the 1998 sentencing entry. Here, the issues raised in appellant's motion to vacate were raised or could have been raised prеviously, and the doctrine of res judicata bars relitigation of those matters. Accordingly, for the reasons stated above, the trial court did not err in denying appellant's motion to vacate his sentence. Based on the foregoing, appellant's single assignment of error is without
merit and is overruled, and the judgment of the Franklin County Court of Common Pleas is hereby affirmed.
Judgment affirmed. BRUNNER and HORTON, JJ., concur. ___________________