[Cite as State v. Osco, 2015-Ohio-44.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                         PORTAGE COUNTY, OHIO


STATE OF OHIO,                                       :        OPINION

                 Plaintiff-Appellee,                 :
                                                              CASE NO. 2014-P-0009
        - vs -                                       :

KODY M. OSCO,                                        :

                 Defendant-Appellant.                :


Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2012 CR
00584.

Judgment: Affirmed.


Victor V. Vigluicci, Portage County Prosecutor, and Kristina Drnjevich, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

Kody M. Osco, pro se, PID: A640-807, Richland Correctional Institution, P.O. Box
8107, 1001 Olivesburg Road, Mansfield, OH 44905 (Defendant-Appellant).



THOMAS R. WRIGHT, J.

        {¶1}     Appellant, Kody Osco, appeals two judgments issued in his criminal case.

In the first judgment, dated February 21, 2014, the trial court denied appellant’s motion

to declare his sentencing order void. In the second judgment, dated March 12, 2014,

the trial court overruled Osco’s motion for findings of fact and conclusions of law

regarding the first judgment.             Appellant asserts that his sentence must be vacated

because the state did not abide by the terms of the plea agreement.
      {¶2}   Two separate criminal cases were brought against appellant within a sixty-

day period in late 2012. In the first case, Portage C.P. No 2012 CR 00584, appellant

was indicted on one count of felonious assault and two counts of escape. In the second

case, Portage C.P. No. 2012 CR 00702, he was indicted on one count of burglary and

two counts of receiving stolen property.

      {¶3}   The two cases were not consolidated but were assigned to the same trial

judge. Furthermore, the proceedings in both cases followed similar paths. In January

2013, appellant and the state reached a plea agreement covering both cases.             In

exchange for the dismissal of the other four counts, appellant agreed to plead guilty to

felonious assault in case number 00584 and burglary in case number 00702, both

second-degree felonies. The state further agreed to “stand silent” at sentencing. A

copy of the written plea agreement was entered on the record in both cases.

      {¶4}   After accepting the guilty plea, the trial court ordered the preparation of a

presentencing investigative report. On March 18, 2013, a sentencing hearing was held

regarding both cases. During this proceeding, despite agreeing to stand silent, the

assistant prosecutor recommended two concurrent seven-year terms. Appellant and his

trial counsel did not object to the recommendation which was consistent with the

presentencing report. At the end of the hearing, the trial court adopted the sentencing

recommendation and also ordered appellant to pay restitution.

      {¶5}   Three days after the sentencing hearing, the trial court issued sentencing

judgments in both cases. Consistent with the oral pronouncement, the court sentenced

appellant to two concurrent seven-year terms. Appellant did not appeal either of the

sentencing judgments.




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       {¶6}   Approximately two months later, in May 2013, appellant filed a motion to

withdraw his guilty pleas in both cases.     In an affidavit attached to the motion, he

asserted two arguments in support: (1) the assistant prosecutor breached the plea

agreement by making a sentencing recommendation; and (2) he was denied effective

assistance of counsel during the combined trial proceedings. Before the state filed a

response, and without hearing, the trial court overruled the motions to withdraw. Again,

appellant did not pursue an appeal of this judgment.

       {¶7}   Eight months later, in February 2014, appellant moved the trial court to

declare the sentencing judgments in both cases void. Although the argumentation in

these motions were more elaborate, they primarily reasserted the two basic points that

formed the basis of the motion to withdraw the guilty plea; i.e., he again maintained that

his seven-year sentence could not stand because the plea agreement was breached

and he was denied effective assistance.         The trial court issued a one-sentence

judgment in both cases overruling the request to declare the sentencing judgments void.

       {¶8}   Within twenty days of the ruling on the foregoing motion, appellant moved

for findings of fact and conclusions of law.     As the basis for the latter motion, he

asserted that the denial of his motion to declare the sentencing judgments void would

remain interlocutory until factual findings and legal conclusions were issued. One day

after the submission of the request for findings and conclusions, the trial court again

rendered a one-sentence judgment in both cases that denied the motion without any

discussion of its merits.

       {¶9}   Appellant appeals the trial court’s February 21, 2014 and March 12, 2014

orders. He raises a single assignment of error for review:




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       {¶10} “The trial court improperly denied the defendant-appellant’s Kody Osco,

motion to have his criminal sentence declared void, and/or invalid, due to the

prosecuting attorney, Mr. Victor Vigluicci, breaching the written, and signed, plea

contract agreement that was accepted by the judge and signed. There shall have been

a hearing held by the trial court, or facts, findings, or conclusions, and/or an appealable

order provided.”

       {¶11} As the wording of the assignment establishes, appellant’s brief essentially

reasserts the substance of his two motions at the trial level. For the following reasons,

this court concludes that, in ruling upon the motion to declare the sentencing judgments

void, the trial court was not obligated to render findings of facts and conclusions of law.

We further conclude that the merits of the “void” motion are not properly before us in

this appeal.

       {¶12} As noted above, the motion to declare the sentencing judgments void was

predicated upon two arguments: (1) the state failed to comply with the terms of the plea

agreement; and (2) he was denied effective assistance when his trial counsel failed to

object to the breach during the sentencing hearing. Before both the trial court and this

court, appellant contends that both arguments are constitutionally based.         First, he

asserts that the breach of the “sentencing” term violated his constitutional rights to due

process. Second, he maintains that his trial counsel’s actions resulted in a violation of

his Sixth Amendment rights.

       {¶13} When a post-judgment motion in a criminal case seeks the vacation of the

imposed sentence on the grounds that a constitutional violation occurred during the trial

proceedings, the defendant’s motion will be deemed a petition for postconviction relief.




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State v. Timmons, 10th Dist. Franklin No. 11AP-895, 2012-Ohio-2079, ¶6, quoting State

v. Reynolds, 79 Ohio St.3d 158, 160 (1997). Therefore, although appellant captioned

his first submission as a motion to declare the sentencing judgments void, it constitutes

a petition for postconviction relief under R.C. 2953.21.

       {¶14} Pursuant to R.C. 2953.21(C) and (G), a trial court is statutorily mandated

to compose and issue findings of fact and conclusions of law on each claim stated in a

postconviction petition. See State v. Dilley, 8th Dist. Cuyahoga No. 99680, 2013-Ohio-

4480, ¶7. However, this duty does not apply if the petition is subject to dismissal on the

basis that it was untimely filed. State ex rel. James v. Coyne, 114 Ohio St.3d 45, 2007-

Ohio-2716, ¶5.

       {¶15} R.C. 2953.21(A)(2) provides that, if a defendant does not pursue a direct

appeal of his conviction, his petition for postconviction relief must be submitted within

180 days after the expiration of the thirty-day period for filing the appeal. This time limit

for filing the postconviction petition is considered jurisdictional. Dilley, ¶10. Thus, a trial

court loses its authority to rule upon the merits of a petition when it is untimely filed. Id.

       {¶16} In each of appellant’s criminal actions, the final sentencing judgment was

filed on March 21, 2013; accordingly, the last day he could have filed a direct appeal of

either of his convictions was April 22, 2013. The record further shows that appellant did

not file his postconviction petition; i.e., his motion to declare the sentencing judgments

void, until February 18, 2014. Hence, he did not comply with the statutory time limit for

filing his petition because 301 days elapsed between the end of the “appeal” period and

the date he submitted his petition.

       {¶17} In his “void” motion, appellant did not contend that the running of the 180




                                               5
day time limit had been tolled for one of the permissible reasons listed in R.C. 2953.23.

Therefore, the denial of appellant’s motion was justified on the basis that, as a petition

for postconviction relief, it was not timely filed. In turn, the trial court had no obligation

to issue findings of fact and conclusions of law in support of its decision.

       {¶18} Moreover, even if appellant’s motion to declare the sentencing judgments

void had been timely filed, the doctrine of res judicata would have barred the trial court

from reviewing the merits of the two constitutional arguments. As to the application of

the doctrine in a criminal case, the Supreme Court of Ohio has stated:

       {¶19} “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 any claimed lack of

due process that was raised or could have been raised by the defendant at the trial,

which resulted in that judgment of conviction, or on an appeal from that judgment.”

State v. Szefcyk, 77 Ohio St.3d 93, syllabus, following State v. Perry, 10 Ohio St.2d 175

(1967), paragraph nine of the syllabus.

       {¶20} According to appellant’s own assertions, the state’s alleged breach of the

plea agreement and trial counsel’s alleged ineffective assistance took place during the

sentencing hearing.     Given that the entire sentencing hearing was recorded and a

transcript of that proceeding exists, appellant could have advanced the alleged

constitutional errors on direct appeal. Because appellant did not appeal either of the

sentencing judgments rendered in the two underlying cases, the doctrine of res judicata

would bar him from asserting his constitutional arguments in any type post-judgment

motion.




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       {¶21} Alternatively, if appellant needed additional evidence from outside the

record to show the alleged constitutional violations, one appropriate way to assert his

arguments would have been a postconviction petition.         However, when the alleged

errors in a trial proceeding pertain to a guilty plea, the defendant can also use a motion

to withdraw the guilty plea as a means of presenting evidence outside the record. See,

e.g., State v. Woody, 8th Dist. Cuyahoga No. 99774, 20014-Ohio-302, ¶13, citing State

v. Smith, 17 Ohio St.3d 98, 101 (1985), fn. 1.

       {¶22} In each of the underlying actions, appellant moved to withdraw his guilty

plea approximately sixty days after the sentencing judgments were issued. The bases

for the motion to withdraw were the same two arguments he raised in his subsequent

motion to have the sentencing judgments declared void. After the trial court overruled

the motion to withdraw, appellant did not appeal that ruling to this court. Hence, again,

since appellant had a full opportunity to litigate the “breach” and “ineffective assistance”

issues, the doctrine of res judicata bars him from asserting those issues again in a

subsequent post-judgment motion or petition.          Woody, at ¶12, quoting State v.

Montgomery, 8th Dist. Cuyahoga No. 99452, 2013-Ohio-4193, ¶42.

       {¶23} Regarding the “breach” issue, appellant contends that the actions of the

assistant prosecutor deprive the trial court of subject matter jurisdiction over the cases,

thereby rendering the sentencing judgments void. Although not expressly argued in his

brief, appellant’s position appears to be that, since the breach affected the trial court’s

authority to proceed, it can be asserted at any time in the proceedings. But, even if it is

assumed, solely for the sake of this argument, that the state’s breach of a plea bargain

can deprive a trial court of jurisdiction to proceed, an issue relating to a court’s subject




                                             7
matter jurisdiction “can be waived when it is fully considered at the trial level and no

timely appeal is taken from the trial court’s ruling * * *.” Citimortgage, Inc. v. Oates, 11th

Dist. Trumbull No. 2013-T-0011, 2013-Ohio-5077, ¶24. Therefore, appellant’s failure to

appeal the trial court’s denial of his motion to withdraw the guilty plea bars him from

raising the “breach” issue again in a subsequent post-judgment motion.

       {¶24} Although the trial court did not state the grounds for its decision to overrule

appellant’s motion to declare the sentencing judgments void, the foregoing discussion

demonstrates that valid reasons to deny his request for relief existed. Furthermore,

because appellant’s motion was subject to dismissal as an untimely petition for

postconviction relief, the trial court had no duty to issue findings of fact and conclusions

of law. Thus, as the trial court did not err in its disposition of the motions to declare the

sentencing judgments void and for findings of fact and conclusions of law, appellant’s

sole assignment of error is without merit.

       {¶25} The judgments of the Portage County Court of Common Pleas are hereby

affirmed.



TIMOTHY P. CANNON, P.J.,

CYNTHIA WESTCOTT RICE, J.,

concur.




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