[Cite as State v. Westbrook, 2012-Ohio-6292.]


                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                      SCIOTO COUNTY

STATE OF OHIO,                        :    Case No. 11CA3455
                                      :
     Plaintiff-Appellee,              :
                                      :    DECISION AND
     v.                               :    JUDGMENT ENTRY
                                      :
JOEY WESTBROOK,                       :
                                      :    RELEASED 10/31/12
                                      :
     Defendant-Appellant.             :
______________________________________________________________________
                            APPEARANCES:

Bryan Scott Hicks, Lebanon, Ohio, for appellant.

Mark E. Kuhn, Scioto County Prosecutor, and Pat Apel, Scioto County Assistant
Prosecutor, Portsmouth, Ohio, for appellee.
______________________________________________________________________
Harsha, J.

        {¶1}     Joey Westbrook was convicted of various drug offenses and sentenced to

16 years imprisonment. His appointed appellate counsel filed a brief under Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), advising us that he has

reviewed the record and can find no meritorious claims. As a result he has moved to

withdraw from this case. We agree with counsel that the proposed assignment of error

has no arguable merit and grant his motion to withdraw. Furthermore, after

independently reviewing the record we find that no arguably meritorious issues exist.

Accordingly, we affirm the trial court's judgment.

                                                I. FACTS

        {¶2}     Joey Westbrook was convicted of various drug offenses and filed a direct

appeal with this court. Accordingly, the trial transcripts in this case were forwarded to
Scioto App. No. 11CA3455                                                                   2

the court on June 9, 2009. We reversed the trial court’s judgment in part and remanded

the case for resentencing. Upon remand, the trial court sentenced Westbrook to 16

years.

         {¶3}   On June 23, 2011, Westbrook filed a motion for relief from judgment under

Civ.R. 60(B), urging the trial court to reconsider its 16 year sentence. However, the trial

court construed Westbrook’s motion as a petition for post-conviction relief under R.C.

2953.21 and Crim.R. 35. The court found that the motion was untimely because it was

filed more than 180 days after the trial transcripts were filed with this court.

Consequently, the trial court overruled his motion. This appeal followed.

                        II. PROPOSED ASSIGNMENT OF ERROR

         {¶4}   “In Anders, the United States Supreme Court held that if counsel

determines after a conscientious examination of the record that the case is wholly

frivolous, counsel should so advise the court and request permission to withdraw.

Counsel must accompany the request with a brief identifying anything in the record that

could arguably support the appeal. Counsel also must furnish the client with a copy of

the brief and request to withdraw and allow the client sufficient time to raise any matters

that the client chooses. Once these requirements have been satisfied, the appellate

court must then fully examine the proceedings below to determine if any arguably

meritorious issues exist. If the appellate court determines that the appeal is frivolous, it

may grant counsel’s request to withdraw and dismiss the appeal without violating

federal constitutional requirements or it may proceed to a decision on the merits if state

law so requires. Alternatively, if the appellate court concludes that any of [the] legal

points are arguable on their merits, it must afford the appellant the assistance of
Scioto App. No. 11CA3455                                                                    3

counsel to argue the appeal.” (Citations omitted.) State v. Ross, 4th Dist. No. 10CA31,

2011-Ohio-1136, ¶ 3.

       {¶5}   Here, Westbrook’s appointed counsel has satisfied the requirements set

forth in Anders and Westbrook has filed a pro se brief. Consequently, we will examine

appointed counsel’s proposed assignment of error, the pro se assignments of error and

the entire record to determine if this appeal has arguable merit.

       {¶6}   Appointed counsel raises one proposed assignment of error for our

review:

       {¶7}   1. “MR. WESTBROOK’S MOTION WAS IMPROPERLY DENIED.”

                                 III. LAW AND ANALYSIS

       {¶8}   Appointed counsel proposes that the trial court erred by construing

Westbrook’s motion filed under Civ.R. 60(B) as a motion for post-conviction relief and

applying the time bar for that procedure. Counsel argues that because the criminal

rules provide no express mechanism to allow a court to reconsider its sentence, Civ.R.

60(B) and its procedure were controlling here. Counsel claims the trial court incorrectly

denied the motion as untimely under the criminal rule and R.C. 2953.21.

       {¶9}   Crim.R. 57(B) states, “If no procedure is specifically prescribed by rule, the

court may proceed in any lawful manner not inconsistent with these rules of criminal

procedure, and shall look to the rules of civil procedure and to the applicable law if no

rule of criminal procedure exists.”

       {¶10} Under Civ.R. 60(B), the court may relieve a party from a final judgment for:

“(1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered

evidence which by due diligence could not have been discovered in time to move for a
Scioto App. No. 11CA3455                                                                     4

new trial under Rule 59(B); (3) fraud * * * misrepresentation or other misconduct of an

adverse party; (4) the judgment has been satisfied, released or discharged, or a prior

judgment upon which it is based has been reversed or otherwise vacated, or it is no

longer equitable that the judgment should have prospective application; or (5) any other

reason justifying relief from the judgment.”

        {¶11} “[T]he plain language of Crim.R. 57(B) permits a trial court in a criminal

case to look to the Rules of Civil Procedure for guidance when no applicable Rule of

Criminal Procedure Exists.” State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882

N.E.2d 431, ¶ 10. However, “[c]ourts may recast irregular motions into whatever

category necessary to identify and establish the criteria by which the motion should be

judged.” Id. at ¶ 12.

        {¶12} The Supreme Court of Ohio has held that when a defendant files a Civ.R.

60(B) motion “subsequent to his direct appeal, claim[ing] a denial of constitutional

rights, and s[eeking] reversal of the judgment rendered against him,” the criminal rules

provide a procedure for seeking that relief, a petition for post-conviction relief under

Crim.R. 35. Schlee at ¶ 12. “Thus, it is not necessary to look to the Civil Rules or other

applicable law for guidance in the way Crim.R. 57(B) intends, because a procedure

‘specifically prescribed by rule’ exists, i.e., Crim.R. 35.” Id. Crim.R. 35 sets forth the

procedure by which criminal defendants can file petitions for post-conviction relief. Id. at

¶ 11.

        {¶13} Here, the trial court was free to “recast” Westbrook’s Civ.R. 60(B) motion

as a motion for post-conviction relief under Crim.R. 35 because he claims a violation of

his constitutional Due Process rights and seeks to modify his 16 year sentence. In fact,
Scioto App. No. 11CA3455                                                                             5

Westbrook concludes that his sentence should be modified based on the “constitutional

questions” raised in his motion. Accordingly, the trial court appropriately construed

Westbrook’s motion as a petition for post-conviction relief. And because Westbrook

filed the motion more than 180 days after the trial transcripts were filed with this court, it

was untimely. See R.C. 2953.2(A)(2).

        {¶14} In his pro se motion, Westbrook raises issues that could have been raised

in his direct appeal, as they are all matters that were contained within the original

record.1 He argues that: (1) his convictions are against the weight of the evidence and

not supported by sufficient evidence; (2) the trial court allowed inadmissible hearsay; (3)

his Due Process rights were violated; (4) the court abused its discretion; (5) his civil

rights have been violated; and (6) “the offenses” are allied offenses of similar import. In

fact on direct appeal, Westbrook argued that several of his convictions should have

merged for sentencing because they were allied offenses of similar import and we

reversed his sentence in part on this basis. State v. Westbrook, 4th Dist. No.

09CA3277, 2010-Ohio-2692, ¶ 64.

        {¶15} If a petitioner alleges errors that he raised on direct appeal or could have

raised on direct appeal, then the doctrine of res judicata bars the claim for post-

conviction relief. State v. Bradley, 4th Dist. No. 98CA2592, 1999 WL 198773 (Mar. 30,

1999), *5. “[T]he doctrine serves to preclude a defendant who has had his day in court

from seeking a second on that same issue. In so doing, res judicata promotes the

principles of finality and judicial economy by preventing endless relitigation of an issue


1
 Westbrook filed an Application for Reopening under App. R. 26(B) on April 19, 2012. Because his
appeal was still pending, we denied the application but deemed it his pro se response to counsel’s
Anders brief.
Scioto App. No. 11CA3455                                                                    6

on which a defendant has already received a full and fair opportunity to be heard.” State

v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 18. Because

Westbrook had a prior opportunity to litigate the claims that he sets forth in his pro se

arguments, they are also barred under the doctrine of res judicata. State v. Perry, 10

Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus.

       {¶16} In conclusion, we find no arguable merit in appellate counsel’s proposed

assignment of error and grant his motion to withdraw. Likewise, there is no arguable

merit in Westbrook’s pro se assignments either. And after reviewing the record for other

potential errors, we can find no arguably meritorious issues for appeal. Accordingly, we

affirm the trial court’s judgment.

                                                                 JUDGMENT AFFIRMED.
Scioto App. No. 11CA3455                                                                      7

                                    JUDGMENT ENTRY


         It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

         The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Scioto
County Court of Common Pleas to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.

Abele, P.J. & Kline, J.: Concur in Judgment and Opinion.

                                            For the Court



                                            BY: ________________________
                                                William H. Harsha, Judge




                                  NOTICE TO COUNSEL


       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
