[Cite as State v. Carter, 2018-Ohio-1772.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                ALLEN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 1-18-06

        v.

WILLIAM T. CARTER,                                         OPINION

        DEFENDANT-APPELLANT.




                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR 2009 0186

                                       Judgment Affirmed

                               Date of Decision: May 7, 2018




APPEARANCES:

        William T. Carter, Appellant

        Jana E. Emerick for Appellee
Case No. 1-18-06


ZIMMERMAN, J.

       {¶1} This case, having been placed on the accelerated calendar, is sua sponte

being moved to the regular calendar.

       {¶2} Defendant-appellant, William T. Carter (“Carter”), appeals the January

5, 2018 judgment entry of the Allen County Common Pleas Court denying his

motion to vacate sentences. Because we find the denial was proper as set forth by

the trial court, we affirm the trial court’s decision denying appellant’s motion.

                           Facts and Procedural History

       {¶3} In October, 2009, Carter pled guilty to one count of kidnapping, in

violation of R.C. 2905.01(A)(2), a first degree felony; and one count of aggravated

robbery, in violation of R.C. 2911.01(A)(3), a first degree felony. (Doc. 25). Both

counts carried repeat violent offender specifications pursuant to R.C. 2929.01(C)(C)

and R.C. 2941.149. (Id). Carter was sentenced to ten years on each count plus an

additional consecutive ten years (for each count) for the repeat violent offender

specifications. The trial court ordered the two counts to run concurrent to each

other, for an aggregate 20-year prison term. Carter filed a timely appeal and this

Court reversed defendant’s sentence (due to the trial court’s failure to properly

merge the two offenses prior to sentencing) and remanded the case to the trial court

for a new sentencing hearing. See State v. Carter, 3d Dist. 1-10-04 (Dec. 27, 2010),

unreported.


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       {¶4} On April 6, 2011, Carter filed a motion to withdraw his guilty plea in

the trial court. (Doc. 52). On June 16, 2011, the trial court held a hearing on Carter’s

motion and subsequently denied the motion. However, pursuant to our remand

order, a new sentencing hearing was also held in the trial court on that date wherein

the State elected to proceed with sentencing on Carter’s aggravated robbery

conviction. The trial court then resentenced Carter to ten years for aggravated

robbery and ten years for the repeat violent offender specification affiliated with the

aggravated robbery. The trial court ordered the sentences to run consecutively, for

an aggregate 20-year sentence.

       {¶5} On July 13, 2011, Carter appealed the trial court’s decision denying his

motion to withdraw his guilty plea. (Doc. 72). And on November 28, 2011, this

Court affirmed the trial court’s decision. (Doc. 88). See State v. Carter, 3d Dist.

Allen No. 1-11-36, 2011-Ohio-6104. On November 10, 2011, Carter filed a notice

of appeal from the trial court’s June 21, 2011 judgment entry of resentencing and

on December 27, 2011, this Court denied Carter’s motion for leave to file this

delayed appeal. (Docs. 82 and 96).

       {¶6} Thereafter, on January 13, 2012, Carter filed a petition for post-

conviction relief (Doc. 93), which was denied by the trial court on January 27, 2012.

(Doc. 98). Carter appealed that decision (Doc. 100), and this Court affirmed the

trial court’s decision. (Doc. 107). See State v. Carter, 3d Dist. 1-12-06, unreported.


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       {¶7} On March 21, 2013, Carter filed a second petition for post-conviction

relief (Doc. 109), which was denied by the trial court on April 4, 2013. (Doc. 110).

On May 2, 2013, Carter appealed that decision (Doc. 112) and this Court affirmed

the trial court’s decision on October 21, 2013. (Doc. 129). See State v. Carter, 3d

Dist. Allen No. 1-13-26, 2013-Ohio-4637.

       {¶8} On June 20, 2013, Carter filed a “motion to vacate void RVO sentence”

(Doc. 118), which was denied by the trial court on June 25, 2013. (Doc. 120).

Carter appealed that decision and this Court dismissed the appeal. (Doc. 130).

       {¶9} On May 21, 2014, Carter filed a “motion to withdraw guilty plea” in the

trial court (Doc. 132), which was denied (by the trial court) on May 30, 2014. (Doc.

134). On June 17, 2014, Carter appealed that decision (Doc. 136) and this Court

affirmed the trial court’s decision on November 24, 2014. (Doc. 144). See State v.

Carter, 3d Dist. No. 1-14-23, unreported.

       {¶10} On December 27, 2017, Carter filed a “motion to vacate sentences”,

which brings us to the case currently before this court. (Doc. 146). On January 5,

2018, the trial court denied the motion ruling that Carter could have raised that issue

in a prior appeal and thus, was barred by the doctrine of res judicata. (Doc. 148).

       {¶11} It is from this judgment that Carter currently appeals, raising the

following assignments of error for our review.




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                       ASSIGNMENT OF ERROR NO. I

       THE TRIAL COURT ERRED AS A MATTER OF LAW AND
       TO THE PREJUDICE OF THE DEFENDANT-APPELLANT
       WHEN IT TREATED HIS PROPER MOTION TO VACATE
       SENTENCES AS A POST CONVICTION PETITION.

                      ASSIGNMENT OF ERROR NO. II

       THE TRIAL COURT ERRED IN FAILING TO SENTENCE
       THE APPELLANT AS STATUTORILY REQUIRED BY LAW
       TO MANDATORY PRISON TERMS ON THE UNDERLYING
       OFFENSE AS WELL AS THE REPEAT VIOLENT
       OFFENDER SPECIFICATION AND THEREFORE IMPOSED
       A SENTENCE THAT IS CONTRARY TO LAW,
       UNAUTHORIZED BY LAW AND VOID IN VIOLATION OF
       APPELLANT’S DUE PROCESS AND EQUAL PROTECTION
       RIGHTS.

       {¶12} Due to the nature of Carter’s assignments, we elect to address them

out of order.

                            Assignment of Error No. II

       {¶13} In Carter’s second assignment of error, he contends that the trial court

erred in imposing its sentences and that such sentences (of Carter) are contrary to

law. We disagree.

                                   Res Judicata

       {¶14} Under the doctrine of res judicata, a final judgment of conviction bars

a convicted defendant who was represented by counsel from raising and litigating

in any proceeding, except an appeal from that judgment, any defense or claimed

lack of due process that “was raised or could have been raised by the defendant at

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the trial, which resulted in that judgment of conviction, or on an appeal from that

judgment”. State v. Perry, 10 Ohio St.2d 175 (1967), paragraph nine of the syllabus.

Further, “[i]t is well-settled that, ‘pursuant to res judicata, a defendant cannot raise

an issue in a [petition] for post-conviction relief if he or she could have raised the

issue on direct appeal’ ”. State v. Lindsay, 5th Dist. Richland No. 16CA39, 2017-

Ohio-595, citing State v. Elmore, 5th Dist. Licking No. 2005-CA-32, 2005-Ohio-

5940, ¶ 21, quoting State v. Reynolds, 79 Ohio St.3d 158, 161 (1997).

                                       Analysis

       {¶15} At the outset, we find Carter’s motion to vacate sentences is a petition

for post-conviction relief. We note that due to our reversal of Carter’s first appeal

in 2010 and his subsequent resentencing in the trial court in June, 2011, the prison

sentence in question is set forth in the trial court’s June 21, 2011 entry. (Doc. 69).

We further note that Carter failed to timely appeal his resentencing and we denied

his request to file a delayed appeal. (Doc. 96). Nevertheless, Carter filed his most

recent post-conviction motion (to vacate sentences) in the trial court on December

27, 2017.

       {¶16} The trial court may consider an untimely petition for post-conviction

relief pursuant to R.C. 2953.23(A), which states:

       (A) Whether a hearing is or is not held on a petition filed pursuant
       to section 2953.21 of the Revised Code, a court may not entertain a
       petition filed after the expiration of the period prescribed in division
       (A) of that section or a second petition or successive petitions for

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       similar relief on behalf of a petitioner unless division (A)(1) or (2) of
       this section applies:

            (1) Both of the following apply:

            (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 claim for relief,
                or, subsequent to the period prescribed in division (A)(2) of
                section 2953.21 of the Revised Code or to the filing of an
                earlier petition, the United States Supreme Court recognized
                a new federal or state right that applies retroactively to
                persons in the petitioner's situation, and the petition asserts a
                claim based on that right.

            (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 of the offense of
                which the petitioner was convicted or * * *.

            (c) The petitioner was convicted of a felony, the petitioner is an
                offender for whom DNA testing was performed * * * and
                analyzed in the context of and upon consideration of all
                available admissible evidence related to the inmate's case * *
                * and the results of the DNA testing establish, by clear and
                convincing evidence, actual innocence of that felony offense
                * * *. R.C. 2153.23(A)

       {¶17} In the case sub judice, Carter makes no claim in his motion that results

of DNA testing establish, by clear and convincing evidence, actual innocence.

Additionally, Carter has failed to show any newly-discovered evidence to support

his claim. Carter argues that his sentence is contrary to law because the trial court

imposed a non-mandatory prison term. Any errors as to this issue that were or could

have been raised on his direct appeal are barred under the doctrine of res judicata.


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“Under the doctrine of res judicata, a final judgment of conviction bars the

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 judgment of conviction or on

appeal from that judgment.” Perry, supra. Therefore, we cannot find that the trial

court erred by denying Carter’s claim based on the doctrine of res judicata. Thus,

Carter’s second assignment of error is not well taken and overruled due to res

judicata.

       {¶18} Based on our findings in Carter’s second assignment of error, we find

that Carter’s first assignment of error is rendered moot.

       {¶19} Having found no error prejudicial to the appellant herein in the

particular assignments of error, we affirm the judgment of the trial court.

                                                                 Judgment Affirmed

PRESTON, J., concurs.




WILLAMOWSKI, P.J., concurring separately.

       {¶20} I am writing separately because although I agree with the logic and

result of the majority opinion, I want to clarify that in my opinion res judicata would

not apply if the sentence were truly void. The Ohio Supreme Court has stated that


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since no court has authority to impose a sentence that is contrary to law, if the trial

court does so the principles of res judicata do not prevent appellate review. State v.

Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, ¶ 22. “The sentence

may be reviewed at any time, on direct appeal or by collateral attack.” Id. quoting

State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, at ¶ 30.

Thus, if the sentence were void, as is suggested by Carter, it would be subject to

appellate review.

        {¶21} In this case, Carter is arguing that his sentence was void because the

judgment entry did not indicate that his prison terms were mandatory, even though

the statute mandates that they be. Carter’s argument is not supported by statute.

        The failure of the court to notify the offender that a prison term
        is a mandatory prison term pursuant to division (B)(3)(a) of this
        section or to include in the sentencing entry any information
        required by division (B)(3)(b) of this section does not affect the
        validity of the imposed sentence or sentences.

R.C. 2929.19(B)(8)1. Where applicable, the statute provides a method for the trial

court to correct any error by issuing a nunc pro tunc sentencing entry. Id. Given

the statutory language, there is no basis for finding the sentence to be void.

Therefore, the doctrine of res judicata applies.




1
 This statutory section refers to the version in effect at the time of the original sentencing. The current
version contains identical language which can be found at R.C. 2929.19(B)(7).

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