STATE OF OHIO v. BRIAN L. WILLIAMS
Case No. 15 CAA 03 0023
COURT OF APPEALS, DELAWARE COUNTY, OHIO, FIFTH APPELLATE DISTRICT
November 3, 2015
2015-Ohio-4576
Hоn. W. Scott Gwin, P.J.; Hon. John W. Wise, J.; Hon. Craig R. Baldwin, J.
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff - Appellee : Hon. John W. Wise, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
BRIAN L. WILLIAMS : Case No. 15 CAA 03 0023
:
Defendant - Appellant : O P I N I O N
CHARACTER OF PROCEEDING: Appeal from the Delaware County
Court of Common Pleas, Case No.
08CR-I-06-0347
JUDGMENT: Affirmed
DATE OF JUDGMENT: November 3, 2015
APPEARANCES:
For Plaintiff-Appellee
CAROL HAMILTON O‘BRIEN
Prosecuting Attorney
By: DOUGLAS N. DUMOLT
Assistant Prosecuting Attorney
Delaware County Prosecutor‘s Office
140 North Sandusky Street
Delaware, OH 43015
For Defendant-Appellant
BRIAN L. WILLIAMS, pro se
CCI, #A586-903
P.O. Box 5500
Chillicothe Correctional Institution
15802 State Route 104 North
Chillicothe, OH 45061
{¶1} Appellant Brian L. Williams appeals a judgment of the Delaware County Common Pleas Court dismissing his motion to present plain errors and defеcts. Appellee is the State of Ohio.
STATEMENT OF FACTS AND CASE
{¶2} On June 23, 2008, appellant entered a guilty plea to a Bill of Information charging him with two counts of sexual battery in violation of
{¶3} Appellаnt filed a “motion to present plain errors and defects and request for an evidеntiary hearing to correct an illegal sentence” on November 25, 2014. In his motion, aрpellant argued that the charges were allied offenses of similar import, that thе court erred in sentencing him to consecutive sentences, that the court failed to advise him of his right to appeal at sentencing, and that his trial counsel was ineffective. The trial court overruled the motion, finding that appellant‘s claims should have been raised on direct appeal or pursuant to a timely petition for рostconviction relief under
{¶4} Appellant assigns the following errors to this Court:
{¶5} “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY DENYING DEFENDANT‘S CLEARLY DEFINED MOTION TO PRESENT PLAIN
{¶6} “II. THE TRIAL COURT ERRED BY DETERMINING THAT TWO COUNTS OF SEXUAL BATTERY; WHICH OCCURRED ON THE SAME DAY, DATE AND TIME INVOLVING THE SAME VICTIM WERE NOT ALLIED OFFENSES OF SIMILAR IMPORT UNDER
{¶7} “III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY RUNNING APPELLANT‘S SENTENCES CONSECUTIVELY; WITHOUT ESTABLISHING A NEED FOR CONSECUTIVE SENTENCES UNDER THE MANDATES OF THE FELONY SENTENCES STATUTES AND THE SPECIFIC PROVISIONS OF
{¶8} “IV. THE TRIAL COURT ERRED AND DENIED APPELLANT DUE PROCESS BY FAILING TO ADDRESS, AT SENTENCING, THAT HE HAD THE RIGHT TO APPEAL THE COURT‘S DECISIONS; SPECIFICALLY INCLUDING THE RIGHT TO APPEAL THE SENTENCE. IN FACT, NO NOTICE WAS EVER GIVEN TO APPELLANT AS THE SENTENCING ENTRY OF AUGUST 19, 2008 WAS ALSO SILENT AS TO HIS RIGHT TO APPEAL ANY ASPECT OF THE CONVICTION OR SENTENCE.
{¶9} “V. THE APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AT CRITICAL STAGES OF THE PROCEEDINGS, PRE-TRIAL; INCLUDING LIES AND MISREPRESENTATIONS REGARDING THE RESULT OF HIS
I.
{¶10} In his first assignment of error, appellant argues that the сourt erred in finding his claims to be untimely and barred by res judicata.
{¶11} A motion to correct or vacate a sentence, despite its caption, meets the definition of а motion for postconviction relief set forth in
{¶12} Because appellant did not file a direct appeal from his conviction, appellant had 365 days after the expiration of the time for filing an appeal in which to file a petition for postconviction relief. Appеllant‘s judgment of sentence was filed on August 19, 2008. Therefore, a timely petition for postconviction relief must have been filed in September of 2009. Appellant did not file his petition until November 25, 2014. The petition was therefore untimely, and the court did not err in dismissing it without a hearing.
{¶13}
{¶14} “(a) Either the petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the
{¶15} “(b) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found the petitioner guilty оf the offense of which the petitioner was convicted or, if the claim challenges a sentence of death that, but for constitutional error at the sentencing hearing, no reasonable factfinder would have found the petitioner eligible for the death sentence.”
{¶16} Although appellant argues that he was not informed of his right to appeal pursuant to Crim. R. 32, he did not demonstrate that he was unavoidably preventеd from timely discovering the facts on which he relied to present his claim for postconviction relief as required by
{¶17} The trial court did not err in dismissing appellant‘s petition аs untimely filed. The first assignment of error is overruled.
II.-V.
{¶18} Because appellant‘s petitiоn was not timely filed, his second through fifth assignments of error, which address the merits of his petition, are moot. Assignments of error two, three, four and five are accordingly overruled.
By: Baldwin, J.
Gwin, P.J. and
Wise, J. concur.