[Cite as State v. Jackson, 2014-Ohio-927.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 99929



                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                  MAURICE JACKSON
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-390243

        BEFORE: Boyle, A.J., Jones, J., and Kilbane, J.

        RELEASED AND JOURNALIZED:                       March 13, 2014
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender
BY: Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Kristen L. Sobieski
        T. Allan Regas
        Amy E. Venesile
Assistant County Prosecutors
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, A.J.:

         {¶1} Defendant-appellant, Maurice Jackson, appeals from the trial court’s

judgment denying his motion to vacate void sentence. He raises two assignments of

error for our review:

         1. The trial court erred in concluding that Jackson’s rape and kidnapping
         offenses were not allied offenses of similar import.

         2. The trial court erred in refusing to remedy a due process violation that
         arose when the trial court failed to advise Maurice Jackson and effectively
         denied Maurice Jackson’s right to a direct appeal.

         {¶2} We find no merit to Jackson’s appeal and affirm the trial court’s judgment.

                        Procedural History and Factual Background

         {¶3} Jackson was indicted in April 2000, on three counts of rape of a child under

the age of 13, kidnapping, and gross sexual imposition. The rape and kidnapping counts

carried sexually violent predator and notice of prior conviction specifications.

         {¶4} On September 20, 2000, Jackson entered into a plea negotiation with the

state.   In exchange for pleading guilty to rape and kidnapping, the state agreed to amend

the indictment to remove the age of the victim, the sexually violent predator and notice of

prior conviction specifications, and the gross sexual imposition charge. As part of his

plea deal, Jackson agreed to a 17-year sentence, with nine of those years being imposed

for the rape charge and eight of those years being imposed for the kidnapping charge, to

be served consecutive to each other.
      {¶5} After accepting Jackson’s guilty plea, the trial court sentenced Jackson to

17 years in prison as set forth in the plea agreement.   The trial court further classified

Jackson as a sexually oriented offender. Jackson did not directly appeal his convictions

or sentence.

      {¶6} On March 16, 2001, Jackson filed his first motion titled, “motion to review

sentence,” arguing that his sentence was contrary to law because his rape and kidnapping

offenses were allied offenses of similar import. The trial court denied this motion on

March 29, 2001.

      {¶7} On June 14, 2001, Jackson filed his first motion to withdraw his guilty plea.

 The trial court denied it on August 1, 2001. On August 21, 2001, Jackson attempted to

appeal the decision.   This court, however, dismissed the appeal for failure to file the

record.

      {¶8} On March 12, 2003, appellant sought leave to file a delayed appeal, which

was denied by this court on March 17, 2003.

      {¶9} On October 18, 2005, Jackson filed a motion to “merge allied offenses.”

The trial court denied his motion on October 24, 2005. Jackson appealed the denial to

this court on November 21, 2005. This appeal was again dismissed for failure to file the

record on January 27, 2006.

      {¶10} On June 4, 2009, Jackson filed a motion “to merge allied offenses pursuant

to Revised Code 2941.25.” The state opposed the motion, and the trial court denied it

on June 22, 2009. Jackson filed an untimely appeal of this judgment on September 10,
2009.    This court dismissed the appeal, and Jackson sought leave to file a delayed appeal

on September 17, 2009. Leave was denied by this court on September 19, 2009.

        {¶11} Jackson next filed another motion to withdraw his guilty plea pursuant to

Crim.R. 32.1 on January 19, 2010. The state opposed the motion, and the motion was

apparently denied although evidence of the denial is lacking in the lengthy record.

Appellant attempted to file a delayed appeal of that decision, but was denied leave by this

court on September 7, 2010.

        {¶12} Jackson filed a motion “to impose valid sentence” on June 2, 2011.         The

state opposed the motion, but also moved the court for a hearing to properly impose

postrelease control.   Before the hearing was held, Jackson filed another motion to

withdraw his guilty plea to kidnapping, but not his guilty plea to rape. The trial court

held a hearing on November 21, 2011, after which it denied Jackson’s motion to

withdraw his kidnapping plea.       The trial court did not address the state’s motion

regarding postrelease control.

        {¶13} Jackson appealed, arguing that the trial court erred when it denied his

motion to withdraw his kidnapping plea. This court found that the trial court did not

abuse its discretion when it denied Jackson’s motion to withdraw his kidnapping plea, but

we instructed the trial court to address the outstanding issue of postrelease control.   See

State v. Jackson, 8th Dist. Cuyahoga No. 97809, 2012-Ohio-4280, ¶ 21.

        {¶14} Upon remand, the state filed a renewed motion for imposition of postrelease

control. Jackson filed a motion to vacate void judgment pro se, but then his new counsel
also filed a brief in support of Jackson’s motion. The trial court held a hearing on the

state’s and Jackson’s motions.       At this hearing, Jackson argued that his rape and

kidnapping offenses were allied offenses of similar import and that he was never advised

of his appellate rights at his original sentencing hearing.

       {¶15} The trial court denied Jackson’s motion to vacate void judgment, and

properly advised Jackson about postrelease control.           It is from this judgment that

Jackson appeals.

                Untimely and Successive Petition for Postconviction Relief

       {¶16} A vaguely titled motion, including a motion to correct or vacate a sentence,

may be construed as a petition for postconviction relief under R.C. 2953.21(A)(1) where

(1) the motion was filed subsequent to a direct appeal, (2) claimed a denial of

constitutional rights, (3) sought to render the judgment void, and (4) asked for a vacation

of the judgment and sentence. State v. Reynolds, 79 Ohio St.3d 158, 160-161, 679

N.E.2d 1131 (1997).      After review, we find that Jackson’s motion meets these four

requirements. Accordingly, we shall construe Jackson’s motion to vacate void judgment

as a petition for postconviction relief. See also State v. Meincke, 8th Dist. Cuyahoga No.

96407, 2011-Ohio-6473.

       {¶17} R.C. 2953.21 through 2953.23 set forth the means by which a convicted

defendant may seek to have the trial court’s judgment or sentence vacated or set aside

pursuant to a petition for postconviction relief.              A defendant’s petition for

postconviction relief is a collateral civil attack on his or her criminal conviction. See
State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 48. The statute

affords relief from judgment where the petitioner’s rights in the proceedings that resulted

in his conviction were denied to such an extent the conviction is rendered void or

voidable under the Ohio or United States Constitutions.          R.C. 2953.21(A); State v.

Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph four of the syllabus.

       {¶18} R.C. 2953.21 provides that a petition for postconviction relief must be filed

within 180 days from the filing of the trial transcripts in the petitioner’s direct appeal or,

if a direct appeal was not pursued, 180 after the expiration of the time in which a direct

appeal could have been filed.

       {¶19} Here, Jackson did not file his motion until well beyond the 180 days after

the expiration of the time to file his direct appeal.       He also filed several previous

petitions.

       {¶20} R.C. 2953.23(A)(1) permits a trial court to entertain an untimely or

successive petition only if:

       (1) the petitioner was unavoidably prevented from discovering the facts on
       which the petition is predicated, or (2) the United States Supreme Court has
       recognized a new federal or state right that applies retroactively to the
       petitioner and the petition asserts a claim based on that new right.

R.C. 2953.23(A)(1)(a).         If the petitioner is able to satisfy one of these threshold

conditions, he or she must then demonstrate that, but for the constitutional error at trial,

no reasonable factfinder would have found him or her guilty of the offenses of which he

was convicted. R.C. 2953.23(A)(1)(b).
       {¶21} Therefore, unless it appears from the record that Jackson was unavoidably

prevented from discovering the facts upon which he relied in his petition, or the United

States Supreme Court has recognized a new federal or state right that applies retroactively

to Jackson and that but for constitutional error at trial, no reasonable factfinder would

have found Jackson guilty, we are bound to conclude the trial court was without

jurisdiction to consider his petition for postconviction relief.

                                           Analysis

       {¶22} In this case, Jackson does not even allege, let alone establish, any of the

requirements necessary to bring a successive and untimely petition for postconviction

relief. Jackson does not claim that he was unavoidably prevented from discovering facts

upon which he relied in his petition, or that the United States Supreme Court has

recognized a new federal or state right that applies retroactively to him.    Nor does he

claim that “but for constitutional error at trial, no reasonable factfinder would have found

Jackson guilty.” Accordingly, we conclude that the trial court was without jurisdiction

to address Jackson’s petition.

       {¶23} The state also points out that Jackson’s argument — that his rape and

kidnapping offenses are allied offenses of similar import — is barred by res judicata.

We agree.    Indeed, in Jackson’s last appeal, this court agreed that the issue of whether

his rape and kidnapping offenses were allied offenses of similar import was barred by res

judicata because he did not file a direct appeal. See Jackson, 8th Dist. Cuyahoga No.

97809, 2012-Ohio-4280, at ¶ 14-15, where we explained:
             Appellant also argues that his sentence is void because he was
      sentenced for multiple offenses that are allied, in violation of the Double
      Jeopardy Clause of the federal and state constitutions. A failure to merge
      allied offenses at sentencing does not render a sentence void. State v.
      Kelly, 8th Dist. No. 97673, 2012-Ohio-2930, ¶ 5. Rather, the sentence is
      voidable, and “[i]n contrast to a void judgment, res judicata applies to a
      voidable judgment.”        State v. Gibson, 8th Dist. No. 96117,
      2011-Ohio-3074, ¶ 28, citing State v. Simpkins, 117 Ohio St.3d 420,
      2008-Ohio-1197, 884 N.E.2d 568, ¶ 30 (“res judicata applies to a voidable
      sentence and may operate to prevent consideration of a collateral attack
      based on a claim that could have been raised on direct appeal from the
      voidable sentence”).

             Additionally, appellant has already made these arguments in many
      prior motions to the trial court and has failed to preserve them by perfecting
      a timely appeal. Res judicata bars appellant from asserting allied offense
      arguments as grounds for his motion.

      {¶24} Jackson’s two assignments of error are overruled.

      {¶25} Judgment affirmed.

      It is ordered that appellee recover of appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated.     Case remanded to the trial court

for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY J. BOYLE, ADMINISTRATIVE JUDGE
LARRY A. JONES, SR., J., and
MARY EILEEN KILBANE, J., CONCUR
