[Cite as State v. Winters,

.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : Case No. CT2015-0029 : RONDIAL E. WINTERS : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2012-0138

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: February 17, 2016

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

D. MICHAEL HADDOX TONY A. CLYMER MUSKINGUM CO. PROSECUTOR 1420 Matthias Dr. GERALD V. ANDERSON Columbus, OH 43224 27 North 5th St., P.O. Box 189 Zanesville, OH 43702-0189 Muskingum County, Case No. CT2015- 0029 2

Delaney, J.

{¶1} Appellant Rondial E. Winters appeals from the May 14, 2015 Judgment

Entry of the Muskingum County Court of Common Pleas overruling his motion to correct

sentence. Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} This case arose when appellant elected to plead guilty to the following eight

counts contained in a bill of information filed June 6, 2012: gross sexual imposition

pursuant to R.C. 2907.05(A)(4), a felony of the third degree [Count I]; gross sexual

imposition pursuant to R.C. 2907.05(A)(4), a felony of the third degree [Count II]; gross

sexual imposition pursuant to R.C. 2907.05(A)(4), a felony of the third degree [Count III];

gross sexual imposition pursuant to R.C. 2907.05(A)(4), a felony of the third degree

[Count IV]; pandering obscenity involving a minor pursuant to R.C. 2907.321(A)(1), a

felony of the second degree [Count V]; pandering obscenity involving a minor pursuant to

R.C. 2907.321(A)(1), a felony of the second degree [Count VI]; pandering obscenity

involving a minor pursuant to R.C. 2907.321(A)(1), a felony of the second degree [Count

VII]; and pandering obscenity involving a minor pursuant to R.C. 2907.321(A)(1), a felony

of the second degree [Count VIII].

{¶3} Appellee’s statements of fact at both the bill of information hearing and the

later sentencing hearing established appellant had sexual contact with a minor under the

age of thirteen on four separate occasions between June 1, 2001 and May 2, 2007. In

the course of the investigation, the victim told police appellant had shown her

pornography and seizure of appellant’s computer yielded, e.g., four separate images of

child pornography. Muskingum County, Case No. CT2015- 0029 3

{¶4} Appellant affirmatively waived prosecution by indictment on June 6, 2012

and entered guilty pleas as charged in exchange for appellee’s recommended aggregate

sentence of 14 years. (Appellant then entered guilty pleas again on August 6, 2012

because the maximum sentence for Counts I through IV had been misstated at the first

hearing.) Appellant also elected to proceed with sentencing under the “current law”

instead of the law in existence at the time the crimes occurred with respect to sex offender

classification. The trial court’s sentencing Entry of August 8, 2012 states in pertinent part:

* * * *.

The Court finds that the crimes for which [appellant] was

convicted span a period of time during which the Ohio sexual

offender classification laws have been amended by the legislature.

The Court finds that these changes affect the rights and

responsibilities of those convicted of sexually oriented offenses. The

Court finds that where possible the Defendant is entitled to be

classified under the statutory provisions that are least restrictive.

However, due to many variables in the statutes, the Court is unable

to determine which statutes applies and determines to allow

[appellant] to elect which statute upon which he desires to proceed.

The finds that (sic) [appellant] has elected to proceed under

Ohio’s recent adoption of the Tier Classification System. Pursuant

to Ohio Revised Code 2950.01 the offenses for which [appellant] was

convicted are defined as sexually oriented offenses, and as such,

require that [appellant] has elected to be classified under the Tier Muskingum County, Case No. CT2015- 0029 4

Group of classification of sex offenders. [Appellant] was advised,

and acknowledged on the record that, 1) he is being classified as a

Tier II Sex Offender (emphasis in original); 2) as a Tier II Sex

Offender he is subject to registration every one hundred eighty

(180) days for twenty-five (25) years (emphasis in original); and, 3)

that his failure to comply with the terms and conditions of registration

could result in new felony charges for which an additional prison term

could be imposed.

* * * *.

{¶5} On August 29, 2012, the trial court entered an Entry Nunc Pro Tunc

imposing prison terms of four years each upon counts Counts I through IV and prison

terms of five years each upon Counts V through VIII. Counts I, II, III, and IV are to be

served concurrently with each other [4 years total]. The terms for Counts V and VI are to

be served concurrently to each other but consecutively to the terms imposed in Counts I

through IV [5 years total]. The periods imposed upon Counts VII and VIII are to be served

concurrently to each other but consecutively to the terms imposed for Counts 1 through

IV and Counts V and VII [5 years total]. Appellant’s aggregate prison term is thus 14

years.

{¶6} Appellant did not file any direct appeal from his convictions and sentences.

{¶7} On April 6, 2015, appellant filed a Motion to Correct Sentence arguing the

trial court failed to make required findings of fact to impose consecutive sentences

pursuant to R.C. 2929.14(C) and failed to determine whether the convictions represented

allied offenses of similar import pursuant to R.C. 2941.25. Appellee responded with a Muskingum County, Case No. CT2015- 0029 5

motion in opposition. The trial court denied appellant’s motion by entry dated May 14,

2015.

{¶8} Appellant now appeals from the trial court’s judgment entry overruling his

motion to correct sentence.

{¶9} Appellant raises five assignments of error:

ASSIGNMENTS OF ERROR

{¶10} “I. THE DEFENDANT-APPELLANT’S PLEA WAS NOT A KNOWING,

INTELLIGENT AND VOLUNTARY PLEA CONTRARY TO OHIO LAW AND THE STATE

AND FEDERAL CONSTITUTIONS.”

{¶11} “II. THE DEFENDANT-APPELLANT WAS DEPRIVED OF THE

EFFECTIVE ASSISTANCE OF COUNSEL CONTRARY TO THE STATE AND FEDERAL

CONSTITUTIONS.”

{¶12} “III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

DID NOT STATE ITS FINDINGS FOR ORDERING CONSECUTIVE SENTENCES

PURSUANT TO R.C. 2929.14(C)(4) AND THUS, THE SENTENCE WAS NOT

AUTHORIZED BY LAW.”

{¶13} “IV. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT

WHEN IT FAILED TO MERGE THE PANDERING OBSCENITY COUNTS AS ALLIED

OFFENSES OF SIMILAR IMPORT IN VIOLATION OF R.C. 2941.25(A) AND THE

DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED

STATES CONSITUTION AND ARTICLE 1 SECTION 10 OF THE OHIO

CONSTITUTION.” Muskingum County, Case No. CT2015- 0029 6

{¶14} “V. THE TRIAL COURT ERRED WHEN IT SENTENCED APPELLANT

UNDER AM.SUB. S.B. NO. 10 (THE ADAM WALSH ACT) INSTEAD OF UNDER

MEGAN’S LAW.”

ANALYSIS

I.

{¶15} In his first assignment of error, appellant summarily asserts his counseled,

negotiated pleas of guilty to the bill of information were not knowing, intelligent, and

voluntary because “* * * he was being advised for the first time by an attorney on the day

he entered his guilty pleas * * *,” a fact which even if true is outside the record.

{¶16} Appellant implies his lack of access to counsel and counsel's allegedly

deficient performance prevented his pleas from being knowing, intelligent, or voluntary.

These arguments depend on evidence outside the record and are not appropriate for

review on direct appeal; the proper vehicle for appellant to raise these arguments would

have been in a petition for post-conviction relief under R.C. 2953.21. State v. Cooperrider,

,

(1983) (per curiam). See, State v. Tate, 5th Dist.

Richland No. 15-CA-40,

, appeal not allowed,

,

,

.

{¶17} The trial court did not treat appellant’s motion to correct sentence as a

petition for post-conviction relief. Even if we were inclined to do so, the pertinent

jurisdictional time requirements for such a petition are set forth in R.C. 2953.21(A)(2) as

follows: “ * * * A petition under division (A)(1) of this section shall be filed no later than

one hundred eighty days after the date on which the trial transcript is filed in the court of

appeals in the direct appeal of the judgment of conviction or adjudication * * *. If no appeal Muskingum County, Case No. CT2015- 0029 7

is taken, except as otherwise provided in section 2953.23 of the Revised Code, the

petition shall be filed no later than one hundred eighty days after the expiration of the time

for filing the appeal.” Appellant did not timely file the motion to correct sentence under

R.C. 2953.21(A)(2) and makes no attempt to justify an untimely filing pursuant to the

requirements set forth in R.C. 2953.23(A). A court has no jurisdiction to hear an untimely

petition for post-conviction relief unless the movant meets the requirements in R.C.

2953.23(A). State v. Walker, 5th Dist. Delaware No. 12 CAA 02 0010,

, citing State v. Demastry, Fairfield App. No. 05CA14, 2005–Ohio–4962, ¶ 15.

{¶18} Appellant’s first assignment of error is without merit. See, State v. Whitaker,

4th Dist. Scioto No. 10CA3349,

; State v. Young, 10th Dist. Franklin No.

10AP-292,

.

{¶19} Appellant’s first assignment of error is overruled.

II., III., IV., V.

{¶20} Appellant’s second through fifth assignments of error will be considered

together. He asserts he received ineffective assistance of counsel; the consecutive

sentences of the trial court did not comply with R.C. 2929.14(C); his convictions are allied

offenses of similar import; and he should not have been classified as a tiered sex offender

despite his specific request that the trial court do so. Appellant’s argument on each count

is barred by res judicata.

{¶21} Appellant failed to file a direct appeal of his convictions and sentences. He

now bootstraps a number of issues to an appeal from his “motion to correct sentence.”

Those arguments could and should have been raised upon direct appeal and are now

barred. “Under the doctrine of res judicata, a final judgment of conviction bars the Muskingum County, Case No. CT2015- 0029 8

defendant from raising and litigating in any proceeding, except an appeal from that

judgment, any defense or any claimed lack of due process that the defendant raised or

could have raised at the trial which resulted in that judgment of conviction or on appeal

from that judgment.” State v. Perry,

,

(1967); State v.

Szefcyk,

, 1996–Ohio–337,

, syllabus. The issues raised

by appellant in his motion to correct the sentence and in the instant appeal are all issues

cognizable on direct appeal from his judgment of conviction and sentence, and appellant's

collateral attack on the judgment on these grounds is barred by res judicata.

{¶22} We also note appellant entered negotiated pleas of guilty to a jointly-

recommended sentence. As we have previously recognized, appellant may not have

been entitled to appellate review of his sentence based on R.C. 2953.08(D)(1), which

provides: “A sentence imposed upon a defendant is not subject to review under this

section if the sentence is authorized by law, has been recommended jointly by the

defendant and the prosecution in the case, and is imposed by a sentencing judge.” State

v. Guiley, 5th Dist. Stark No. 2013CA00211,

.

{¶23} Nonetheless, appellant’s motion to correct sentence constitutes a collateral

attack upon his convictions. To allow a defendant to collaterally attack a judgment on

grounds he could have raised on direct appeal if they had not barred by R.C.

2953.08(D)(1) would render that statute a nullity.

.

See also, State v. Stevenson, 9th Dist. Summit No. 21953,

[appealing sex offender classification from “motion to correct sentence” barred by res

judicata when classification not challenged upon direct appeal]; State v. Jones, 5th Dist.

Richland No. 12CA22,

, citing State v. Barfield, 6th Dist. No. Nos. Muskingum County, Case No. CT2015- 0029 9

L–06–1262, L–06–1263, 2007–Ohio–1037, ¶ 6 [appellant's argument regarding allied

offenses could have been raised on direct appeal from the trial court's sentencing entry

and res judicata applies even though appellant never pursued a direct appeal].

{¶24} Appellant’s second, third, fourth, and fifth assignments of error are

overruled.

CONCLUSION

{¶25} Appellant’s five assignments of error are overruled and the judgment of the

Muskingum County Court of Common Pleas is affirmed.

By: Delaney, J. and

Gwin, P.J.

Baldwin, J., concur.