[Cite as State v. Rollins, 2018-Ohio-4525.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                      CHAMPAIGN COUNTY

 STATE OF OHIO                                      :
                                                    :
          Plaintiff-Appellee                        :   Appellate Case No. 2018-CA-3
                                                    :
 v.                                                 :   Trial Court Case No. 2007-CR-178
                                                    :
 JOSEPH W. ROLLINS                                  :   (Criminal Appeal from
                                                    :   Common Pleas Court)
          Defendant-Appellant                       :
                                                    :

                                               ...........

                                              OPINION

                           Rendered on the 9th day of November, 2018.

                                               ...........

JANE A. NAPIER, Atty. Reg. No. 0061426, Champaign County Prosecutor’s Office,
Appellate Division, 200 N. Main Street, Urbana, Ohio 43078
      Attorney for Plaintiff-Appellee

JOSEPH W. ROLLINS, #569-438, P.O. Box 57, Marion, Ohio 43301
     Defendant-Appellant, Pro Se

                                              .............

DONOVAN, J.

        {¶ 1} Defendant-appellant Joseph W. Rollins appeals a judgment of the

Champaign County Court of Common Pleas, General Division, overruling his “motion to

vacate void sentences.” Rollins filed a timely notice of appeal with this Court on January

31, 2018.
                                                                                          -2-

        {¶ 2} We set forth the history of the case in State v. Rollins, 2d Dist. Champaign

No. 08CA003, 2009-Ohio-899 (hereinafter “Rollins I”), and repeat it herein in pertinent

part:

                Defendant, Joseph Rollins, entered pleas of guilty pursuant to a

        negotiated agreement to one count of aggravated burglary, R.C.

        2911.11(A)(2), two counts of rape, R.C. 2907.02(A)(2), each with a sexually

        violent predator specification, R.C. 2941.148, and a prior violent sex offense

        specification,   R.C.   2971.03(A)(4),   one   count   of   kidnaping,   R.C.

        2905.01(A)(4), with a sexual motivation specification, R.C. 2941.147, a

        sexually violent predator specification, R.C. 2941.148, and a prior violent

        sex offense specification, R.C. 2971.03(A)(4), and one count of failure to

        comply with an order or signal of a police officer, R.C. 2921.331(B),

        (C)(5)(a)(ii). In exchange, the State dismissed several other pending

        charges, including aggravated menacing, aggravated burglary, rape,

        possession of criminal tools, carrying concealed weapons and assault.

                The trial court sentenced Defendant to consecutive prison terms of

        five years on the aggravated burglary, ten years to life on each of the rape

        counts and on the kidnaping, and three years on the failure to comply with

        an order or signal of a police officer, for an aggregate sentence of thirty-

        eight years to life. The court also classified Defendant as a Tier III sex

        offender.

Id. at ¶ 1-2.

        {¶ 3} In his direct appeal in 2009, Rollins argued that the trial court erred when it
                                                                                             -3-


imposed consecutive sentences.         Rollins also argued that he suffered from multiple

mental health problems and had expressed remorse for his offenses. Id. at ¶ 6. Lastly,

Rollins contended that his aggregate sentence was disproportionate to punishments

imposed on others for like offenses. Id. We rejected his arguments, concluding that

multiple factors existed supporting a finding that Rollins was likely to commit future

crimes. Id. at ¶ 13. Furthermore, we found that these factors were not outweighed by

Rollins’s mental health problems or his remorse. Id. We also found that because Rollins

failed to object in the trial court on the basis that his sentence was inconsistent with others,

or to offer any evidence to support that claim, he had waived that argument for purposes

of appeal. Id. at ¶ 16.

       {¶ 4} On November 9, 2017, Rollins filed a “motion to vacate void sentences,” the

denial of which is the subject of the instant appeal. In his motion, Rollins argued that

R.C. 2971.03(A)(4) was improperly used to enhance his sentences on the rape and

kidnapping charges, thereby rendering those sentences void.               Specifically, Rollins

contended that R.C. 2971.03(A)(4) only applies to offenders previously found guilty of a

sexually violent predator specification, and no such finding had been made in his case.

       {¶ 5} In its memorandum in response, the State argued that, by express

agreement of all parties, Rollins was properly sentenced in accordance with R.C.

2971.03(A)(3)(d)(ii), not R.C. 2971.03(A)(4), and his sentences for rape and kidnapping

therefore were not void. The State also argued that res judicata precluded further review

of Rollins’s sentence. On January 5, 2018, the trial court overruled Rollins’s motion.

       {¶ 6} It is from this judgment that Rollins now appeals.

       {¶ 7} Rollins’s sole assignment of error is as follows:
                                                                                          -4-


       THE TRIAL COURT ERRED WHEN IT SENTENCED THE APPELLANT

       TO A SPECIFICATION NOT CONTAINED IN A[N] INDICTMENT FOUND

       BY A GRAND JURY THUS IN VIOLATION OF THE U.S. CONSTITUTION

       AND OHIO CONSTITUTION ART. 1 SECT. 10.

       {¶ 8} In his sole assignment, Rollins contends that the trial court erred when it

improperly sentenced him for a prior violent sex offense conviction specification pursuant

to R.C. 2971.03(A)(4).

       {¶ 9} Post-conviction relief is governed by R.C. 2953.21. The statute provides, in

pertinent part, that:

       Any person who has been convicted of a criminal offense * * * and who

       claims that there was such a denial or infringement of the person's rights as

       to render the judgment void or voidable under the Ohio Constitution or the

       Constitution of the United States, * * * may file a petition in the court that

       imposed sentence, stating the grounds for relief relied upon, and asking the

       court to vacate or set aside the judgment or sentence or to grant other

       appropriate relief. The petitioner may file a supporting affidavit and other

       documentary evidence in support of the claim for relief.

R.C. 2953.21(A)(1)(a).

       {¶ 10} “A post[-]conviction proceeding is not an appeal of a criminal conviction, but,

rather, a collateral civil attack on the judgment.” State v. Stefen, 70 Ohio St.3d 399, 410,

639 N.E.2d 67 (1994); see also State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679,

860 N.E.2d 77, ¶ 48. To prevail on a petition for post-conviction relief, the defendant

must establish a violation of his constitutional rights which renders the judgment of
                                                                                           -5-


conviction void or voidable. R.C. 2953.21.

       {¶ 11} The post-conviction relief statutes do “not expressly mandate a hearing for

every post-conviction relief petition and, therefore, a hearing is not automatically

required.” State v. Jackson, 64 Ohio St.2d 107, 110, 413 N.E.2d 819 (1980). Rather, in

addressing a petition for post-conviction relief, a trial court plays a gatekeeping role as to

whether a defendant will receive a hearing. Gondor at ¶ 51. A trial court may dismiss a

petition for post-conviction relief without a hearing “where the petition, the supporting

affidavits, the documentary evidence, the files, and the records do not demonstrate that

petitioner set forth sufficient operative facts to establish substantive grounds for relief.”

State v. Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905 (1999), paragraph two of the

syllabus; Gondor at ¶ 51.

       {¶ 12} We review the trial court's denial of Rollins’s motion to vacate his sentence

for an abuse of discretion. Gondor at ¶ 52. An abuse of discretion suggests the trial

court's decision was unreasonable, arbitrary, or unconscionable. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶ 13} Initially, we note that Rollins’s motion was the functional equivalent of a

petition for post-conviction relief, which was untimely because it was not filed within 365

days after the trial transcript was filed with this court in his direct appeal. See R.C.

2953.21(A)(2). In addition, none of the statutory exceptions for filing untimely petitions

apply here. See R.C. 2953.23(A).

       {¶ 14} More importantly, Rollins’s argument is barred by res judicata because he

was required to raise this argument during his direct appeal. See State v. Reid, 2d Dist.

Montgomery No. 25790, 2014-Ohio-1282, ¶ 7-9. In Reid, we stated the following:
                                                                                            -6-


                 “Pursuant to the doctrine of res judicata, a valid final judgment on the

       merits bars all subsequent actions based on any claim arising out of the

       transaction or occurrence that was the subject matter of the previous

       action.” State v. Collins, 2d Dist. Montgomery No. 25612, 2013-Ohio-3645,

       ¶ 9, citing Grava v. Parkman Twp., 73 Ohio St.3d 379, 382, 653 N.E.2d 226

       (1995). Moreover, “[a]rguments challenging the imposition of a sentence

       that is voidable are barred by the doctrine of res judicata if not raised on

       direct appeal.” State v. Simons, 2d Dist. Champaign No. 2013 CA 5, 2013-

       Ohio-3654, ¶ 42, citing State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-

       1197, 884 N.E.2d 568, ¶ 30. (Other citation omitted.)            In other words,

       “defendants with a voidable sentence are entitled to re-sentencing only

       upon a successful challenge on direct appeal.” Id. at ¶ 40, quoting State v.

       Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 30.

                 “[A] voidable judgment is one rendered by a court that has both

       jurisdiction and authority to act, but the court's judgment is invalid, irregular,

       or erroneous.” Id., quoting Simpkins at ¶ 12.

Reid at ¶ 7-8.

       {¶ 15} The arguments raised in Rollins’s petition establish, at most, that his

sentence was voidable. Rollins does not argue that his sentence was not in conformity

with statutorily mandated terms, or was not provided for by law, or even that his sentence

failed to comply with the formal requirements of R.C. 2941.25. See State v. Parson, 2d

Dist. Montgomery No. 24641, 2012-Ohio-730, ¶ 9.              At best, Rollins’s sentence was

voidable; thus he was barred by the doctrine of res judicata from challenging his sentence
                                                                                             -7-


on these grounds collaterally through his petition for post-conviction relief.

       {¶ 16} Significantly, the record establishes that, contrary to Rollins’s argument in

his motion to vacate, he was not sentenced pursuant to 2971.03(A)(4) (prior violent sex

offense conviction), which requires a sentence of life imprisonment without the possibility

of parole. Rather, the record establishes that Rollins was sentenced pursuant to R.C.

2971.03(A)(3)(d)(ii). As stated previously, prior to sentencing, the trial court determined

that the specifications attached to the rape and kidnapping charges in the indictment did

not apply to Rollins. After bringing this issue to the attention of the parties, the trial court

applied the appropriate section of the statute, namely R.C. 2971.03(A)(3)(d)(ii), which

requires a prison term of ten years to life in prison.

       {¶ 17} R.C. 2971.03(A)(3)(d)(ii) states as follows

       (A) Notwithstanding divisions (A) and (D) of section 2929.14, section

       2929.02, 2929.03, 2929.06, 2929.13, or another section of the Revised

       Code, other than divisions (B) and (C) of section 2929.14 of the Revised

       Code, that authorizes or requires a specified prison term or a mandatory

       prison term for a person who is convicted of or pleads guilty to a felony or

       that specifies the manner and place of service of a prison term or term of

       imprisonment, the court shall impose a sentence upon a person who is

       convicted of or pleads guilty to a violent sex offense and who also is

       convicted of or pleads guilty to a sexually violent predator specification that

       was included in the indictment, count in the indictment, or information

       charging that offense, and upon a person who is convicted of or pleads

       guilty to a designated homicide, assault, or kidnapping offense and also is
                                                                                          -8-


       convicted of or pleads guilty to both a sexual motivation specification and a

       sexually violent predator specification that were included in the indictment,

       count in the indictment, or information charging that offense, as follows:

       ***

       [3](d) Except as otherwise provided in division (A)(4) of this section, if the

       offense for which the sentence is being imposed is rape for which a term of

       life imprisonment is not imposed under division (A)(2) of this section or

       division (B) of section 2907.02 of the Revised Code, it shall impose an

       indefinite prison term as follows:

       (ii) If the rape is committed prior to January 2, 2007, or the rape is committed

       on or after January 2, 2007, other than in violation of division (A)(1)(b) of

       section 2907.02 of the Revised Code, it shall impose an indefinite prison

       term consisting of a minimum term fixed by the court that is not less than

       ten years, and a maximum term of life imprisonment.

(Emphasis added.)

       {¶ 18} Therefore, the error raised by Rollins was resolved prior to sentencing by

notice and agreement of the parties and the trial court. While his indictment included

specifications for a prior sexually violent offense conviction pursuant to R.C.

2971.03(A)(4), Rollins was not sentenced under that provision. Rather, Rollins was

sentenced pursuant to R.C. 2971.03(A)(3)(d)(ii). Thus, any error in the indictment was

harmless. Indeed, Rollins’s sentence would be void if he were serving a life sentence

without the possibility of parole, which he is not. Rollins’s Entry of Judgment, Conviction,

and Sentence, filed on February 8, 2008, sentenced him to ten years to life imprisonment
                                                                                            -9-


for each of the following counts: Count IV (rape), Count V (rape), and Count VII

(kidnapping). Rollins’s sentences on Counts IV, V, and VII were consistent with the

application of R.C. 2971.03(A)(3)(d)(ii). Thus, even if Rollins’s argument were not barred

by res judicata, it would fail on its merits, and the trial court did not err when it overruled

Rollins’s motion to vacate a void sentence.

       {¶ 19} Rollins’s sole assignment of error is overruled.

       {¶ 20} Rollins’s sole assignment of error having been overruled, the judgment of

the trial court is affirmed.

                                       .............



WELBAUM, P.J. and TUCKER, J., concur.



Copies sent to:

Jane A. Napier
Joseph W. Rollins
Hon. J. Timothy Campbell, c/o Champaign Co. Common Pleas Court
