[Cite as State v. Wilson, 2017-Ohio-8498.]




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

 STATE OF OHIO                                     :
                                                   :
         Plaintiff-Appellee                        :   Appellate Case No. 27481
                                                   :
 v.                                                :   Trial Court Case No. 1996-CR-1019
                                                   :
 LAWRENCE E. WILSON                                :   (Criminal Appeal from
                                                   :   Common Pleas Court)
         Defendant-Appellant                       :
                                                   :

                                              ...........

                                             OPINION

                           Rendered on the 9th day of November, 2017.

                                              ...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

LAWRENCE E. WILSON, Inmate No. A349-229, Franklin Medical Center, P.O. Box
23658, Columbus, Ohio 43223
      Defendant-Appellant-Pro Se

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




TUCKER, J.
                                                                                        -2-




      {¶ 1} Defendant-appellant Lawrence Wilson appeals from a decision of the

Montgomery County Court of Common Pleas denying his motion to vacate judgment and

request for Grand Jury testimony. For the following reasons, we affirm.



                            I. Facts and Procedural History

      {¶ 2} In 1997, Wilson was convicted of rape of a person under thirteen years of

age. Following Wilson’s direct appeal, we affirmed the conviction and sentence. State

v. Wilson, 2d Dist. Montgomery Nos. 16728, 16752, 1998 WL 639100, * 1 (Aug. 7, 1998).

Since then, Wilson has repeatedly sought review of his conviction and sentence with this

court, the Fourth District Court of Appeals, the Ohio Supreme Court, and the federal

courts to review his conviction.1 He has used various procedural mechanisms including

a request for reconsideration, numerous petitions for post-conviction relief, and petitions

for extraordinary writs of mandamus, procedendo and habeas corpus. See State v.

Wilson, 2d Dist. Montgomery No. 17515, 1999 WL 173551 (Mar. 31, 1999); State ex rel.

Wilson v. Sunderland, 87 Ohio St.3d 548, 2000-Ohio-479, 721 N.E.2d 1055 (2000); State

v. Wilson, 2d Dist. Montgomery No. 21738, 2007-Ohio-4885, appeal not accepted for

review, 117 Ohio St.3d 1405, 2008-Ohio-565, 881 N.E.2d 274 (Table); State v. Wilson,

2d Dist. Montgomery No. 23247, 2009-Ohio-7035; State v. Wilson, 2d Dist. Montgomery

No. 24352, 2011-Ohio-599. None of these actions have been successful.

      {¶ 3} Wilson, turning to the instant appeal, filed a motion on December 16, 2016,



1
 Wilson has served part of his prison sentence in the Pickaway Correctional Institution
which is within the jurisdiction of the Fourth District.
                                                                                          -3-


to vacate his judgment and sentence in which he argues that his sentence is void because

(1) he was improperly and excessively sentenced; (2) the trial court improperly entered a

nunc pro tunc order amending the original termination entry and adding an additional two

years to his sentence; (3) the trial court violated Crim.R. 43(A) by resentencing him via

the nunc pro tunc entry without having him present; (4) the guilty verdict did not state the

degree of the offense; (5) the indictment was defective; (6) the trial court did not give an

instruction on a lesser included offense; (7) the victim recanted; (8) his waiver of counsel

was invalid and trial counsel was ineffective; and (9) he was not permitted to allocute at

sentencing.

       {¶ 4} Additionally, on December 23, 2016, Wilson filed a request for Grand Jury

transcripts. He argued that the indictment was defective because it did not name or

identify the offense for which the Grand Jury indicted him. He further contends that the

victim later recanted her testimony at trial, and thus, he is entitled to view her testimony

before the Grand Jury.

       {¶ 5} The trial court, citing the doctrine of res judicata, overruled the motion to

vacate and denied the request for transcripts by entry filed January 25, 2017. Wilson

filed a timely appeal.



                           II. Claims Barred by Res Judicata

       {¶ 6} Wilson’s first, second, third and fourth assignments of error state as follows:

              DID THE TRIAL COURT ERR IN DENYING DEFENDANT-

       APPELLANT’S MOTION TO VACATE THE VOID JUDGMENT AND

       SENTENCE?
                                                                                        -4-


              DID THE TRIAL COURT ERR BY FAILING TO HOLD A HEARING

       PURSUANT TO CRIM.R. 43(A) WHEN IT CORRECTED THE JUDGMENT

       ENTRY’S [SIC] WITHOUT DEFENDANT-APPELLANT BEING PRESENT?

              DID THE TRIAL COURT ERR WHEN THE WAIVER OF COUNSEL

       WAS NOT MADE IN WRITING AND FILED WITH THE COURT?

              DOES THE SAME PARTICULARIZED NEED ANALYSIS APPLY

       TO BOTH TRIAL AND POST-CONVICTION PROCEEDINGS?

       {¶ 7} In these assignments of error, Wilson raises arguments concerning his claim

that the trial court improperly (1) amended the termination entry, (2) violated Crim.R.

43(A) by amending the termination entry outside his presence, (3) denied him the right of

allocution, (4) violated his right to counsel, and (5) erred with regard to his waiver of

counsel and/or improperly denied him his right to counsel. He further claims that the trial

court erred by denying his request for Grand Jury transcripts. Wilson argues that the

transcripts are necessary to help him prove that the indictment was deficient.

Specifically, he claims that the indictment did not specify the name of the offense, the

specific facts concerning the offense, nor the degree of the offense. He also claims that

he needs the transcripts because the victim, who he claims later recanted her testimony

at trial, also lied to the Grand Jury.

       {¶ 8} In State v. DeVaughns, 2017-Ohio-475, __N.E.3d__ (2d Dist.), this court

discussed petitions for post-conviction relief:

              Petitions for post-conviction relief are governed by R.C. 2953.21

       through R.C. 2953.23. Under these statutes, any defendant who has been

       convicted of a criminal offense and who claims to have experienced a denial
                                                                                             -5-


       or infringement of his or her constitutional rights (federal or Ohio) may

       petition the trial court to vacate or set aside the judgment and sentence.

       R.C. 2953.21(A).      A post-conviction proceeding is not an appeal of a

       criminal conviction; it is a collateral civil attack on the judgment. State v.

       Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 48, citing

       State v. Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d 67 (1994); R.C.

       2953.21(J). For this reason, a defendant's petition for post-conviction relief

       is not a constitutional right; the only rights afforded to a defendant in post-

       conviction proceedings are those specifically granted by the legislature.

       Steffen, 70 Ohio St.3d at 410, 639 N.E.2d 67.

              ***

              Pursuant to R.C. 2953.23(A)(1)(a), a defendant may not file an

       untimely or successive petition for post-conviction relief unless (1) he was

       unavoidably prevented from discovering the facts upon which he relies to

       present his claim, or (2) the United States Supreme Court recognizes a new

       federal or state right that applies retroactively to his situation and the petition

       asserts a claim based on that right. The petitioner must also show by clear

       and convincing evidence that, if not for the constitutional error from which

       he suffered, no reasonable factfinder could have found him guilty. R.C.

       2953.23(A)(1)(b).

Id. at ¶ 24-26.

       {¶ 9} Further, “[u]nder the doctrine of res judicata, ‘[a] point or a fact which was

actually and directly in issue in a former action and was there passed upon and
                                                                                        -6-


determined by a court of competent jurisdiction may not be drawn in question in any future

action between the same parties or their privies, whether the cause of action in the two

actions be identical or different.’ Norwood v. McDonald (1943), 142 Ohio St. 299,

paragraph three of the syllabus. ‘The law-of-the-case doctrine holds that the decision of

the reviewing court in a case remains the law of that case on the questions of law involved

for all subsequent proceedings at the trial and appellate levels.’ Nolan v. Nolan (1984),

11 Ohio St .3d 1.” State v. Wilson, 2d Dist. Montgomery No. 24352, 2011-Ohio-5990,

¶11, quoting State v. Ulery, 2d Dist. Clark No. 2010 CA 89, 2011–Ohio–4549, ¶ 12.

       {¶ 10} In this case, all of the arguments raised by Wilson have been previously

raised and rejected. In fact, some of the arguments have been raised multiple times.

Since we have thoroughly reviewed and resolved these issues in our previous decisions,

these assignments of error are overruled based upon the law of the case doctrine and res

judicata.   It is further concluded, given this resolution, that the trial court also

appropriately overruled Wilson’s request for Grand Jury testimony.



    III. Excessive Sentence Claim is Without Merit and Barred by Res Judicata

       {¶ 11} The fifth assignment of error asserted by Wilson states:

              IS THE SENTENCE IMPOSED UPON THE DEFENDANT-

       APPELLANT BY THE TRIAL COURT EXCESSIVE?

       {¶ 12} Wilson contends that his sentence must be vacated because it is excessive

and disproportionate, and constitutes cruel and unusual punishment.

       {¶ 13} Wilson’s argument is, at best, convoluted, but he seems to assert that his

sentence is excessive and disproportionate based upon his belief that he was merely
                                                                                         -7-


“convicted of a single count of an allegation of engaging in cunnilingus with [a ten year

old],” yet received a sentence of nine to twenty-five years in prison. Wilson, from this,

seems to believe that the rape charge should have been amended to a lesser charge of

sexual battery or gross sexual imposition. Wilson has included nine pages of case notes

in the appendix to his appellate brief. Wilson asserts that these cases demonstrate that

his sentence is excessive and disproportionate to others who engaged in the same

conduct but were convicted of a lesser offense. He claims, from this, that his sentence

is cruel and unusual in violation of the Eighth Amendment to the United States’

Constitution.

       {¶ 14} We find this argument unavailing. Wilson was convicted of rape because

the jury believed the testimony provided by the victim that Wilson had inserted his tongue

into her vagina.2 Given that there was credible evidence that Wilson did penetrate the

victim’s vagina, there was no requirement that the charge be amended to a lesser

included offense. The cases supplied by Wilson indicate that his sentence is entirely in

line with the sentences meted out to other offenders convicted of rape. Ohio courts have

recognized that sentences falling within the range permitted by statute, as is the case with

Wilson’s sentence, do not constitute cruel and unusual punishment.            McDougle v.

Maxwell, 1 Ohio St.2d 68, 69, 203 N.E.2d 334 (1964); State v. Hilbert, 2d Dist. Miami No.

2013 CA 2, 2013-Ohio-4728, ¶ 5.

       {¶ 15} Finally, this argument could have been, but was not, raised on direct appeal.

Thus, it is barred by the doctrine of res judicata. Accordingly, the fifth assignment of


2
  Wilson thinks that the jury erred because his testimony that he merely used his tongue
to taste a substance he observed between her vagina and anus proves that there was no
penetration.
                                                                                     -8-


error is overruled.



                                   IV. Conclusion

       {¶ 16} All of Wilson’s assignments of error being overruled, the judgment of the

trial court is affirmed.



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



HALL, P.J. and DONOVAN, J., concur.



Copies mailed to:

Mathias H. Heck, Jr.
Andrew T. French
Lawrence E. Wilson
Hon. Richard Skelton
