[Cite as State v. Johnson, 2016-Ohio-7731.]


                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                 :     JUDGES:
                                              :     Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                    :     Hon. W. Scott Gwin, J.
                                              :     Hon. Patricia A. Delaney, J.
-vs-                                          :
                                              :
BRIAN A. JOHNSON                              :     Case No. 16 CAA 08 0033
                                              :
        Defendant-Appellant                   :     OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Case No. 15-CRI-01-0019




JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   November 10, 2016




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

JAHAN KARAMALI                                      BRIAN A. JOHNSON, Pro Se
140 North Sandusky Street                           Inmate #707-245
Third Floor                                         Chillicothe Correctional Institution
Delaware, OH 43015                                  P.O. Box 5500
                                                    Chillicothe, OH 45601
Delaware County, Case No. 16 CAA 08 0033                                               2

Farmer, P.J.

       {¶1}    On January 17, 2014, the Delaware County Grand Jury indicted appellant,

Brian Johnson, on four counts of rape in violation of R.C. 2907.02 and four counts of

sexual battery in violation of R.C. 2907.03.

       {¶2}    A jury trial commenced on May 20, 2014.        Four of the counts were

amended to attempted offenses and appellant was found guilty as charged.              By

judgment entry filed July 8, 2014, the trial court merged some of the offenses and

sentenced appellant to an aggregate term of fourteen years in prison.

       {¶3}    Appellant filed an appeal and this court affirmed his convictions and

sentence. State v. Johnson, 5th Dist. Delaware No. 14CAA070039, 2015-Ohio-1676,

appeal not accepted, 43 Ohio St.3d 1501, 2015-Ohio-4468. Appellant applied to reopen

his appeal which the Supreme Court of Ohio declined to review on March 23, 2016.

State v. Johnson, 145 Ohio St.3d 1425, 2016-Ohio-1173.

       {¶4}    On February 26, 2015, appellant filed a petition for postconviction relief

focusing on ineffective assistance of counsel. By a thorough and lengthy judgment

entry filed March 12, 2015, the trial court denied the petition without a hearing.

Appellant filed an appeal which this court dismissed for unauthorized practice of law.

State v. Johnson, 5th Dist. Delaware No. 15 CAA 03 0027.

       {¶5}    On October 21, 2015, appellant filed another petition for postconviction

relief which the trial court denied the next day as a successive petition not meeting the

requirements of R.C. 2953.23(A)(1). Appellant filed an appeal and this court affirmed

the trial court's decision. State v. Johnson, 5th Dist. Delaware No. 15 CAA 11 0092,

2016-Ohio-1213, appeal not accepted, 146 Ohio St.3d 1471, 2016-Ohio-5108.
Delaware County, Case No. 16 CAA 08 0033                                               3


       {¶6}   On November 25, 2015, appellant moved for appointment of counsel

which the trial court denied on November 30, 2015. Appellant filed an appeal which this

court dismissed for want of prosecution. State v. Johnson, 5th Dist. Delaware No. 15

CAA 12 0096.

       {¶7}   On March 3, 2016, appellant filed a motion for resentencing which the trial

court denied on the same day. Appellant filed an appeal and this court affirmed the trial

court's decision, but remanded the matter to the trial court to issue a nunc pro tunc

sentencing entry stating the rape sentences are mandatory. State v. Johnson, 5th Dist.

Delaware No. 16CAA030011, 2016-Ohio-4617.             Appellant did not appeal to the

Supreme Court of Ohio. Instead, appellant filed a motion for reconsideration which this

court denied on October 20, 2016.

       {¶8}   On June 24, 2016, the trial court issued a nunc pro tunc judgment entry as

directed by this court.

       {¶9}   On July 21, 2016, appellant filed a second motion for resentencing which

the trial court denied the next day.

       {¶10} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                            I

       {¶11} "DEFENDANT-APPELLANT'S             FUNDAMENTAL       AND    SUBSTANTIAL

RIGHT TO PROCEDURAL DUE PROCESS AND EQUAL PROTECTION OF THE

LAWS, GUARANTEED BY THE 14TH AMENDMENT TO THE UNITED STATES

CONSTITUTION, ARTICLE I, SECTIONS 2 & 16 OF THE OHIO CONSTITUTION,

WAS VIOLATED; WHEN THE TRIAL COURT [FAILED TO COMPLY WITH
Delaware County, Case No. 16 CAA 08 0033                                          4


STATUTORILY MANDATED TERMS AND RULE REQUIREMENTS] PURSUANT TO

CRIM.R. 32(B)(3)(a), (b); CRIM.R.32(C); R.C. 120.05(A); OHIO ADMINISTRATIVE

CODE      RULE:    120-1-03;    120-1-05;        RESULTING   IN    [JURISDICTIONAL,

PROCEDURAL, PREJUDICIAL, AND REVERSIBLE PLAIN ERROR], THEREBY,

RENDERING HIS [SENTENCE & SENTENCING ENTRY], [UNAUTHORIZED BY

LAW], [CONTRARY TO LAW], [A NULLITY AND VOID IN-PART]."

                                            II

       {¶12} "DEFENDANT-APPELLANT'S              FUNDAMENTAL      AND   SUBSTANTIAL

RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL, GUARANTEED BY THE

6TH AMENDMENT, UNDER THE EQUAL PROTECTION AND DUE PROCESS

CLAUSE OF THE 14TH AMENDMENT TO THE UNITED STATES CONSTITUTION;

ARTICLE I, SECTION 2, 10 & 16, OF THE OHIO CONSTITUTION, WAS VIOLATED;

WHEN TRIAL COUNSEL FAILED TO [OBJECT] TO THE COURT'S VOID

IMPOSITION OF SENTENCE PURSUANT TO CRIM.R.44 (A); CRIM.R. 32(B)(3)(a),(b)

AS WELL AS APPELLATE COUNSEL'S FAILURE TO RAISE THE ISSUE ON

APPEAL; ALSO TRIAL COUNSEL FAILED TO COMPLY WITH R.C. 120.05 (A), (B);

FAILING TO [INVESTIGATE] AND SUBMIT A FINANCIAL DISCLOSURE/AFFIDAVIT

OF INDIGENCY FORM TO THE COURT FOR DETERMINATION OF INDIGENCY

AND POSSIBLE WAIVER OF COURT COSTS, AS WELL AS APPELLANT

COUNSELS FAILURE TO RAISE THIS ISSUE ON APPEAL; TRIAL COUNSEL ALSO,

[FAILED    TO     INFORM,      CONSULT,          ADVISE,   AND    EXPLAIN]   THESE

CIRCUMSTANCES AS A POSSIBLE OUTCOME OR PENALTY IN THE EVENT OF

CONVICTION TO APPELLANT, DURING [PRETRIAL PLEA NEGOTIATIONS]; THUS,
Delaware County, Case No. 16 CAA 08 0033                                              5


RENDERING         [BOTH]     COUNSEL'S         PERFORMANCE             CONSTITUTIONALLY

DEFICIENT,     BELOW       AN   OBJECTIVE           STANDARD      OF   REASONABLENESS,

THEREBY, RESULTING IN A [VOIDABLE CONVICTION] IN THIS REGARD, AND A

[SUBSTANTIAL PREJUDICE SUFFERED].

                                            I, II

       {¶13} Appellant once again challenges his sentence and claims ineffective

assistance of counsel.

       {¶14} In his second motion for resentencing filed on July 21, 2016, appellant

listed several questions for review at pages 21 and 36. In its July 22, 2016 judgment

entry denying the motion, the trial court stated the following:



              Because both I and the court of appeals have already addressed in

       our earlier rulings the issues surrounding the defendant's sentence that he

       now raises again, and because nothing in R.C. 2953.23(A) or any other

       statute or rule permits the defendant to continue to raise his sentencing-

       related claims now, his latest request for resentencing is denied.



       {¶15} In reviewing previous motions and rulings and appellant's second motion

for resentencing, we concur with the trial court's analysis.

       {¶16} In State v. Reynolds, 79 Ohio St.3d 158, 160, 1997-Ohio-304, the

Supreme Court of Ohio explained despite a motion's caption, a motion meets the

definition of a petition for postconviction relief under R.C. 2953.21 if it is (1) filed
Delaware County, Case No. 16 CAA 08 0033                                                  6


subsequent to a direct appeal; (2) claims a denial of constitutional rights; (3) seeks to

render the judgment void; and (4) asks for vacation of the judgment and sentence.

       {¶17} Accordingly, in reviewing appellant's second motion for resentencing, we

find it to be a petition for postconviction relief as defined in R.C. 2953.21. Based upon

appellant's past filings, the subject motion was a successive petition for postconviction

relief. R.C. 2953.23 governs successive petitions and states the following in pertinent

part, as subsection (A)(2) is not applicable sub judice:



              (A) Whether a hearing is or is not held on a petition filed pursuant to

       section 2953.21 of the Revised Code, a court may not entertain a petition

       filed after the expiration of the period prescribed in division (A) of that

       section or a second petition or successive petitions for similar relief on

       behalf of a petitioner unless division (A)(1) or (2) of this section applies:

              (1) Both of the following apply:

              (a) Either the petitioner shows that the petitioner was unavoidably

       prevented from discovery of the facts upon which the petitioner must rely

       to present the claim for relief, or, subsequent to the period prescribed in

       division (A)(2) of section 2953.21 of the Revised Code or to the filing of an

       earlier petition, the United States Supreme Court recognized a new

       federal or state right that applies retroactively to persons in the petitioner's

       situation, and the petition asserts a claim based on that right.

              (b) The petitioner shows by clear and convincing evidence that, but

       for constitutional error at trial, no reasonable factfinder would have found
Delaware County, Case No. 16 CAA 08 0033                                                 7


      the petitioner guilty of the offense of which the petitioner was convicted or,

      if the claim challenges a sentence of death that, but for constitutional error

      at the sentencing hearing, no reasonable factfinder would have found the

      petitioner eligible for the death sentence.



      {¶18} In reviewing appellant's second motion for resentencing/petition for

postconviction relief, we find appellant did not satisfy the requirements of R.C. 2953.23.

      {¶19} In addition, appellant's arguments are barred under the doctrine of res

judicata. As stated by the Supreme Court of Ohio in State v. Perry, 10 Ohio St.2d 175

(1967), paragraphs eight and nine of the syllabus, the doctrine of res judicata is

applicable to petitions for postconviction relief. The Perry court explained the doctrine

at 180–181 as follows:



             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 trial, which resulted in that judgment of

      conviction, or on an appeal from that judgment.



      {¶20} In reviewing appellant's second motion for resentencing/successive

petition for postconviction relief, we find the arguments therein could have been raised

on direct appeal.
Delaware County, Case No. 16 CAA 08 0033                                          8


       {¶21} Upon review, we find the trial court did not err in denying appellant's

motion/petition.

       {¶22} Assignments of Error I and II are denied.

       {¶23} The judgment of the Court of Common Pleas of Delaware County, Ohio is

hereby affirmed.

By Farmer, P.J.

Gwin, J. and

Delaney, J. concur.


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