[Cite as State v. Sparks, 2018-Ohio-5120.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                        C.A. No.      28953

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
BRYAN SPARKS                                         COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR-2012-12-3669

                                 DECISION AND JOURNAL ENTRY

Dated: December 19, 2018



        SCHAFER, Presiding Judge.

        {¶1}     Appellant, Bryan S. Sparks, appeals the decision of the Summit County Court of

Common Pleas denying his motion to compel. For the reasons that follow, this Court affirms.

                                                I.

        {¶2}     This matter originated with a December 2002 indictment charging Mr. Sparks

with multiple sex offenses. This Court previously summarized in part the lengthy procedural

history as follows:

        Following a trial to the bench in 2004, the trial court found Mr. Sparks guilty of
        two counts of rape, two counts of corruption of a minor, and one count of illegal
        use or possession of drug paraphernalia. It sentenced him to life in prison and
        adjudicated him a sexual predator under Revised Code Section 2950.09. This
        Court upheld his convictions on appeal, but remanded for resentencing on one of
        the rape counts. The trial court resentenced him on that count in June 2005.

        In January 2010, Mr. Sparks petitioned for post-conviction relief. In its brief
        opposing the petition, the State pointed out that the trial court had incorrectly
        imposed post-release control when it sentenced Mr. Sparks. It argued that his
        sentence, therefore, was void, which made his petition premature. In March 2010,
        the trial court resentenced Mr. Sparks, correcting the post-release control error
                                                 2


       and imposing the same prison terms as before. It also classified him as a Tier III
       sex offender under the Adam Walsh Act. On appeal, this Court affirmed in part
       and reversed in part, explaining that, under State v. Fischer, 128 Ohio St.3d 92,
       2010-Ohio-6238, the trial court did not have authority to assign Mr. Sparks a sex
       offender classification. On remand, the trial court corrected its entry.

       In October 2011, Mr. Sparks petitioned for post-conviction relief, arguing that his
       trial counsel was ineffective. The trial court denied his petition as untimely. Mr.
       Sparks moved for reconsideration, but the trial court denied his motion. Mr.
       Sparks did not appeal either of the trial court’s decisions.

State v. Sparks, 9th Dist. Summit No. 27292, 2014-Ohio-5017, ¶ 2-5 (“Sparks III”).

       {¶3}    In February of 2014, Mr. Sparks moved the trial court to correct his sentence

raising multiple issues, and the trial court denied his motion. Mr. Sparks appealed the trial

court’s denial of his motion to correct his sentence and argued that the trial court erred by not

holding a hearing on his motion and not making specific findings of fact and conclusions of law

in its journal entry. Sparks III at ¶ 6. We determined that the trial court properly treated Mr.

Sparks’s motion to correct his sentence as a successive motion for postconviction relief and

correctly determined that it lacked authority to grant the motion. Id. at ¶ 9. We also concluded

that the trial court had no duty to hold a hearing or issue findings of fact or conclusions of law on

Mr. Sparks’s successive or untimely petition for postconviction relief. Id. at ¶ 10. We overruled

all of Mr. Sparks’s assignments of error and affirmed the judgment in that appeal. Id. at ¶ 11.

       {¶4}    Following our November 12, 2014 decision in Sparks III, Mr. Sparks filed

numerous motions and requests in the trial court. He also filed two attempted appeals, which this

Court dismissed. On May 11, 2017, Mr. Sparks filed a motion captioned “motion to compel”

wherein he challenged his sentence and alleged the denial of due process. The trial court

summarily denied this motion in a journal entry dated January 17, 2018. Mr. Sparks now

appeals that ruling, presenting four assignments of error for our review. For ease of analysis, we

elect to address those assignments of error together.
                                                 3


                                                 II.

                                      Assignment of Error I

       The trial court erred when it sentenced [Mr. Sparks] using SB2 guidelines on
       count one when documentation shows that HB511 guidelines must be used
       violating [Mr. Sparks’s] right to due process in accordance with the Sixth
       and Fourteenth Amendments to the United States Constitution[.]

                                     Assignment of Error II

       The trial court erred when it sentenced [Mr. Sparks] to life in regards to a
       criminal element that was never mentioned in the original complaint nor was
       it mentioned during the current sentencing nor is it stated anywhere in the
       sentencing transcripts or in the sentencing journal entry violating [Mr.
       Sparks’s] right to due process in accordance with the Sixth and Fourteenth
       Amendments to the United States Constitution[.]

                                     Assignment of Error III

       The trial court erred several times when it failed to appoint trial and
       appellate counsel competent to handle [Mr. Sparks’s] case and appeals
       violating the Fifth, Sixth and Fourteenth Amendments to the United States
       Constitution[.]

                                     Assignment of Error IV

       The trial court erred when it failed to state the findings of facts and
       conclusions of law when it denied [Mr. Sparks’s] motion to compel several
       months after the time had r[u]n out to rule on that motion violating [Mr.
       Sparks’s] right to due process in accordance with the Sixth and Fourteenth
       Amendments to the United States Constitution[.]

       {¶5}    Mr. Sparks’s first three assignments of error relate to the trial court’s denial of his

motion to compel. The fourth assignment of error challenges that the trial court erred when it

failed to issue findings of fact and conclusions of law in the journal entry denying that motion.

       {¶6}    In his motion to compel, Mr. Sparks argued that he was improperly sentenced

based on the wrong statute and an element not included in the indictment. He also contends that

he was denied due process based on alleged prosecutorial misconduct and ineffective assistance

of counsel. “‘A vaguely titled motion * * * may be construed as a petition for post-conviction
                                                 4


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 [or voidable],

and (4) asked for a vacation of the judgment and sentence.’” State v. Gordon, 9th Dist. Summit

No. 29009, 2018-Ohio-4311, ¶ 5, quoting State v. Davis, 9th Dist. Medina No. 15C0004-M,

2015-Ohio-5182, ¶ 6.      We conclude that Mr. Sparks’s motion meets these requirements.

Accordingly, we construe his motion to compel as a petition for postconviction relief.

       {¶7}    R.C. 2953.23(A)(1) provides that a trial court may entertain a successive petition

for postconviction relief only when the following criteria are met:

       (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 the
       petitioner guilty of the offense of which the petitioner was convicted * * *.

Mr. Sparks’s motion, being a successive petition for postconviction relief, “did not offer an

explanation regarding why he was unavoidably prevented from discovering the facts upon which

his petition was based, nor did it identify a retroactive right that has been recognized by the

United States Supreme Court.” State v. Wright, 9th Dist. Summit No. 27880, 2016-Ohio-3542, ¶

9. Thus, we conclude that the trial court lacked authority to consider the merits of Mr. Sparks’s

successive petition and, therefore, did not err by denying his motion. Mr. Sparks’s first, second,

and third assignments of error are overruled.
                                                 5


       {¶8}    Additionally, we must address Mr. Sparks’s contention that the trial court erred by

failing to include findings of fact and conclusions of law in its denial of his motion. As this

Court stated in Sparks III,

       the Ohio Supreme Court has held that a trial court “has no duty to issue findings
       of fact and conclusions of law on successive or untimely petitions for
       postconviction relief.” State ex rel. George v. Burnside, 118 Ohio St.3d 406,
       2008-Ohio-2702, ¶ 6.

Sparks III at ¶ 10. Here again we conclude that the trial court was not obligated to issue findings

of fact or conclusions of law. Mr. Sparks’s fourth assignment of error is overruled.

                                                III.

       {¶9}    All four of Mr. Sparks’s assignments of error are overruled. The judgment of the

Summit County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
                                      6


      Costs taxed to Appellant.




                                          JULIE A. SCHAFER
                                          FOR THE COURT



CARR, J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

BRYAN SPARKS, pro se, Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee.
