[Cite as State v. Johnson,

.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. Sheila G. Farmer, P.J. Plaintiff-Appellee : Hon. John W. Wise, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 16CAA030011 : BRIAN A. JOHNSON : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 14 CR 1 01 0019

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY June 23, 2016

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

CAROL O’BRIEN BRIAN A. JOHNSON, pro se DELAWARE CO. PROSECUTOR #707-245 JAHAN KARAMALI Chillicothe Correctional Inst. 140 N. Sandusky St., 3rd Floor P.O. Box 5500 Delaware, OH 43015 Chillicothe, OH 45601 Delaware County, Case No. 16CAA030011 2

Delaney, J.

{¶1} Appellant Brian A. Johnson appeals from the March 3, 2016

“Judgment Entry Denying the Defendant’s 3/2/16 Motion for Resentencing” of the

Delaware County Court of Common Pleas. Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} This case has a lengthy procedural history. A statement of the facts

underlying appellant’s convictions upon two counts of rape is not necessary to our

resolution of this appeal.

{¶3} Appellant was charged by indictment upon one count of rape

pursuant to R.C. 2907.02(A)(1)(c) [Count I]; one count of rape pursuant to R.C.

2907.02(A)(2) [Count II]; one count of rape pursuant to R.C. 2907.02(A)(1)(c)

[Count III]; one count of rape pursuant to R.C. 2907.02(A)(2) [Count IV]; one count

of sexual battery pursuant to R.C. 2907.03(A)(2) [Count V]; one count of sexual

battery pursuant to R.C. 2907.03(A)(1) [Count VI]; one count of sexual battery

pursuant to R.C. 2907.03(A)(2) [Count VII]; and one count of sexual battery

pursuant to R.C. 2907.03(A)(1) [Count VIII]. Appellant entered pleas of not guilty.

{¶4} At trial, the trial court amended Counts III, IV, VII, and VIII to

attempted offenses and appellant was found guilty as charged.

{¶5} At sentencing, the trial court found Counts I, II, V, and VI merge, and

Counts III, IV, VII, and VIII merge. The trial court sentenced appellant upon Counts

II and IV to an aggregate prison term of 14 years.

{¶6} Appellant directly appealed the convictions and sentence; we

affirmed in State v. Brian A. Johnson, 5th Dist. Delaware No. 14CAA070039, Delaware County, Case No. 16CAA030011 3

2015–Ohio–1676, appeal not allowed,

,

,

. Appellant applied to reopen both appeals and the applications were

overruled.

{¶7} Appellant filed his first petition for postconviction relief on February

26, 2015 and the trial court denied the petition without a hearing on March 12,

2015. A motion to reconsider was overruled. Appellant appealed from the trial

court’s decision but we dismissed the appeal in State v. Johnson, 5th Dist.

Delaware No. 15CAA030027.

{¶8} Appellant filed a second petition for postconviction relief on October

21, 2015, which the trial court overruled the next day. Appellant appealed from that

decision in State v. Johnson, 5th Dist. Delaware No. 15 CAA 11 0092, 2016-Ohio-

1213. A memorandum in support of jurisdiction is pending before the Ohio

Supreme Court in case number 2016-0650.

{¶9} On November 25, 2015, appellant moved for appointment of counsel

and the trial court overruled the motion. Appellant appealed the decision in State

v. Johnson, 5th Dist. Delaware No. 15 CAA 12 0096 and we dismissed the appeal.

{¶10} Appellant then filed, e.g., a motion to compel and a motion for judicial

release, both of which were overruled.

{¶11} On March 3, 2016, appellant filed a motion for resentencing and the

trial court overruled the motion in a judgment entry dated March 3, 2016.

{¶12} Appellant now appeals from the March 3, 2016 “Judgment Entry

Denying the Defendant’s 3/2/16 Motion for Resentencing.”

{¶13} Appellant raises two assignments of error: Delaware County, Case No. 16CAA030011 4

ASSIGNMENTS OF ERROR

{¶14} “I. APPELLANT’S FUNDAMENTAL RIGHT TO ‘DUE PROCESS OF

LAW’ AND ‘EQUAL PROTECTION OF THE LAW,’ GUARANTEED BY THE FIFTH

AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION; ARTICLE I, SECTION 2 AND 16 OF THE OHIO

CONSTITUTION; WAS VIOLATED WHEN THE (TRIAL COURT) FAILED TO

COMPLY, WITH THE ‘STATUTORILY MANDATED TERMS AND

REQUIREMENTS,’ CONTAINED WITHIN R.C. 2929.19(B)(2)(a), (b); AT THE

APPELLANT’S SENTENCING HEARING, THEREBY FAILING TO NOTIFY THE

APPELLANT, THAT HIS ENTIRE SENTENCE WAS MANDATORY TIME; THESE

FINDINGS IN ITS JUDGMENT ENTRY ON SENTENCE PURSUANT TO CRIM.R.

32(C), THUS, RESULTING IN JURISDICTIONAL ERROR, THEREBY

RENDERING THE JUDGMENT OF THE COURT, CONTRARY TO LAW, A

NULLITY, AND VOID-IN-PART; WHEREBY, THE APPELLANT WAS

PREJUDICIALLY DENIED, STATUTORY, PROVISIONAL NOTIFICATION, AS

TO THE PRECLUSIONARY NATURE OF EARLY RELEASE METHODS, WHICH

DIRECTLY CONTRIBUTED TO THE APPELLANT’S JUDICIAL RELEASE

PETITION BEING FILED IN ERROR; AS THE APPELLANT WAS UNAWARE

THAT HE WAS INELIGIBLE FOR SUCH RELIEF, DUE TO (THE COURT’S)

ERROR IN THIS REGARD.” (sic throughout, parentheses in original.)

{¶15} “II. APPELLANT’S FUNDAMENTAL RIGHT TO ‘DUE PROCESS

OF LAW,’ EQUAL PROTECTION OF THE LAW,’ AND THE ‘EFFECTIVE

ASSISTANCE OF COUNSEL,’ GUARANTEED BY THE FIFTH, SIXTH, AND Delaware County, Case No. 16CAA030011 5

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION;

ARTICLE I, SECTION 2, 10, AND 16 OF THE OHIO CONSTITUTION; WAS

VIOLATED WHEN (TRIAL COUNSEL) ‘FAILED TO OBJECT’ PURSUANT TO

R.C. 2945.09; CRIM.R. 44(A); AS IT PERTAINS TO THE ISSUES RAISED

WITHIN GROUND ONE (1) OF THIS SYLLABUS; FURTHERMORE, (COUNSEL)

FAILED TO INFORM, CONSULT, ADVISE AND OR EXPLAIN, THE POSSIBLE

PENALTY INVOLVED AS A RESULT OF PROCEEDING TO TRIAL, IN THE

EVENT OF CONVICTION, VERSUS THE POSSIBLE ADVANTAGEOUS,

LESSER PENALTY INVOLVED, AS A RESULT OF ENTERING AN ALFORD

PLEA IN THE MATTER, AS OFFERED BY THE STATE OF OHIO, AND AS IT

RELATES TO THE MANDATORY SENTENCING DISPARITY, WHICH

THEREBY (PRECLUDED) INFORMED, CONSENSUAL DECISIONS BY THE

APPELLANT REGARDING PLEA NEGOTIATIONS; AS (COUNSEL) VIOLATED

PROF. COND. R. 1.1, COMMENT 5; PROF. COND. R. 1.4 (a)(1), (2), (4), (b),

COMMENT 5; PROF. COND. R. 2.1; PROF. COND. R. 3.1; PREAMBLE 1, 2, 4;

THUS RENDERING COUNSEL’S PERFORMANCE CONSTITUTIONALLY

DEFICIENT, BELOW AN OBJECTIVE STANDARD OF REASONABLENESS,

AND A SUBSTANTIAL PREJUDICE SUFFERED BY APPELLANT. (sic

throughout; parentheses in original.)

ANALYSIS

{¶16} This case comes to us on the accelerated calendar. App.R. 11.1

governs accelerated-calendar cases and states in pertinent part:

(E) Determination and judgment on appeal. Delaware County, Case No. 16CAA030011 6

The appeal will be determined as provided by App.R. 11.1. It shall

be sufficient compliance with App.R. 12(A) for the statement of the

reason for the court’s decision as to each error to be in brief and

conclusionary form.

The decision may be by judgment entry in which case it will not be

published in any form.

{¶17} One of the most important purposes of the accelerated calendar is

to enable an appellate court to render a brief and conclusory decision more quickly

than in a case on the regular calendar where the briefs, facts, and legal issues are

more complicated. Crawford v. Eastland Shopping Mall Assn.,

,

(10th Dist. 1983).

I.

{¶18} In his first assignment of error, appellant argues the trial court failed

to properly advise him his prison sentence is mandatory and therefore we should

vacate his sentence. We agree to the extent that the trial court must enter a nunc

pro tunc sentencing entry stating the prison terms upon the rape counts are

mandatory.

{¶19} Appellant was convicted upon two counts of rape pursuant to R.C.

2907.02(A)(1)(c). The trial court is required to impose a prison term upon these

convictions. R.C. 2929.13(F)(2). Relevant to appellant, the trial court may not

reduce the stated prison terms and appellant is ineligible for judicial release. R.C.

2929.20. Appellant argues the trial court violated the following portions of R.C.

2929.19 (B)(2): Delaware County, Case No. 16CAA030011 7

Subject to division (B)(3) of this section, if the sentencing court

determines at the sentencing hearing that a prison term is necessary

or required, the court shall do all of the following:

(a) Impose a stated prison term and, if the court imposes a

mandatory prison term, notify the offender that the prison term is a

mandatory prison term;

(b) In addition to any other information, include in the

sentencing entry the name and section reference to the offense or

offenses, the sentence or sentences imposed and whether the

sentence or sentences contain mandatory prison terms, if sentences

are imposed for multiple counts whether the sentences are to be

served concurrently or consecutively, and the name and section

reference of any specification or specifications for which sentence is

imposed and the sentence or sentences imposed for the

specification or specifications[.]

{¶20} Appellee acknowledges the trial court did not explicitly describe the

prison terms as “mandatory” at the sentencing hearing.

{¶21} Neither party provided us with the Judgment Entry on Sentence of

July 8, 2014. Upon our review of the sentencing entry and of the sentencing

hearing, we note the trial court did not state that the prison terms are mandatory.

This omission, however, does not render the sentence void. R.C. 2929.19(B)(7)

specifically provides: Delaware County, Case No. 16CAA030011 8

The failure of the court to notify the offender that a

prison term is a mandatory prison term pursuant to division

(B)(2)(a) of this section or to include in the sentencing entry

any information required by division (B)(2)(b) of this section

does not affect the validity of the imposed sentence or

sentences. If the sentencing court notifies the offender at the

sentencing hearing that a prison term is mandatory but the

sentencing entry does not specify that the prison term is

mandatory, the court may complete a corrected journal entry

and send copies of the corrected entry to the offender and the

department of rehabilitation and correction, or, at the request

of the state, the court shall complete a corrected journal entry

and send copies of the corrected entry to the offender and

department of rehabilitation and correction.

{¶22} Appellant argues the error requires us to vacate his sentence and

remand to the trial court to permit him to accept appellee’s pretrial plea offer, but

this suggestion is without merit. Several courts have addressed the appropriate

remedy under these circumstances: the trial court should issue a nunc pro tunc

sentencing entry adding a statement that the prison term is mandatory. See, State

v. McFarland, 7th Dist. Mahoning No. 15 MA 17,

; State v.

Benitez–Maranon, 9th Dist. Summit Nos. 26461, 26659, 2014–Ohio–3575; State

v. Rasul, 8th Dist. Cuyahoga No. 101625,

, appeal not allowed,

,

; see also State v. Ware,

, Delaware County, Case No. 16CAA030011 9

2014–Ohio–5201,

[omission of the term “mandatory” is irrelevant

because defendant’s prison term is still mandatory].

{¶23} We therefore remand this matter to the trial court to issue a nunc pro

tunc sentencing entry stating that appellant's rape sentences are mandatory.

Accordingly, appellant's first assignment of error has merit only to the extent that

the matter will be remanded for a nunc pro tunc sentencing entry. State v.

McFarland, supra,

at ¶ 27.

II.

{¶24} In his second assignment of error, appellant argues trial counsel was

ineffective on a number of bases including failure to advise him of the mandatory

nature of the prison term imposed and failure to explain the benefits of entering an

Alford plea.

{¶25} The record does not support appellant's argument that trial counsel

failed to advise him of the mandatory nature of the prison terms or that appellant

would have accepted a plea offer under different circumstances. Appellant alleges

rejection of a plea offer and a general “failure to object” but relies upon facts outside

the record. State v. Coles, 5th Dist. Delaware No. 15CAA010001, 2015-Ohio-

4159, ¶ 10. Postconviction relief, rather than a direct appeal, is generally the

means by which a defendant may bring claims of constitutional violations based

upon matters outside the record. Id., citing State v. Kreischer, 5th Dist. Perry No.

01–CA–04, 2002–Ohio–357,

, *3 and State v. Perry,

,

(1967), paragraphs four and nine of the syllabus. Delaware County, Case No. 16CAA030011 10

{¶26} Postconviction relief is not available in the instant case, though; the

trial court could not have treated appellant’s “motion for resentencing” as a

successive petition for postconviction relief because appellant failed to make the

showing required by R.C. 2953.23(A). Appellant has filed two prior petitions for

postconviction relief. Consideration of his most recent claim of ineffective

assistance of counsel is barred by the doctrine of res judicata, which prevents

repeated litigation of issues which a trial court determined, or might have

determined, in an earlier petition for postconviction relief in the same case. State

v. Harper, 6th Dist. Lucas No. L-98-1126,

, *1 (Aug. 28, 1998),

citing State v. Castro,

,

(8th DIst. 1979) and

State v. Walker,

,

(2nd Dist. 1995).

{¶27} A trial court may entertain a late or successive petition for

postconviction relief only if a petitioner satisfies the statutory requirements set forth

in R.C. 2953.23(A). In the instant case, appellant did not aver, let alone

demonstrate, that he was unavoidably prevented from discovering facts to present

his claim or that a new federal or state right accrued retroactively to appellant's

claim. R.C. 2953.23(A)(1). Nor did appellant demonstrate by clear and convincing

evidence that, but for a constitutional error, no reasonable factfinder would have

found him guilty of the offense. R.C. 2953.23(A)(2). Without that showing, the trial

court was without authority to entertain the petition.

{¶28} Appellant’s second assignment of error is overruled. Delaware County, Case No. 16CAA030011 11

CONCLUSION

{¶29} For the reasons stated above, the trial court's judgment is hereby

affirmed. The matter is remanded solely for the trial court to issue a nunc pro tunc

sentencing entry providing that appellant's sentences for rape are mandatory.

By: Delaney, J. and

Farmer, P.J.

Wise, J., concur.