[Cite as State v. Dudley, 2014-Ohio-826.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 99952


                                       STATE OF OHIO

                                                     PLAINTIFF-APPELLEE

                                               vs.

                                       EDDIE DUDLEY
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                 Criminal Appeal from the
                          Cuyahoga County Court of Common Pleas
                Case Nos. CR-500587, CR-500881, CR-530921, and CR-532408

        BEFORE: Stewart, J., Blackmon, P.J., and McCormack, J.

        RELEASED AND JOURNALIZED:                    March 6, 2014
FOR APPELLANT

Eddie Dudley, Pro Se
Inmate No. 582-483
Lorain Correctional Institution
2075 South Avon Belden Road
Grafton, OH 44044


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: James M. Price
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, OH 44113
MELODY J. STEWART, J.:

       {¶1} In March 2010, the court sentenced defendant-appellant Eddie Dudley in four

separate cases: in three of those cases Dudley pleaded guilty; in the fourth case a jury

found him guilty after a trial. In March 2012, Dudley filed an identical motion in all four

cases asking the court to vacate his sentences because he was not informed in court at the

time of sentencing that he was obligated to pay court costs. The court denied those

motions, and Dudley did not appeal. In April 2013, Dudley refiled the same motion to

vacate in all four cases. The court denied those motions, and Dudley appeals, arguing

that the trial court erred by doing so. We find no error for several reasons.

       {¶2} First, the motions to vacate the sentences were barred by principles of res

judicata because the cost issues contained in those motions could have been, but were not,

raised on direct appeal from the jury trial and the three guilty pleas. See State v. Threatt,

108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, ¶ 23 (“[A]n indigent defendant

must move a trial court to waive payment of costs at the time of sentencing. If the

defendant makes such a motion, then the issue is preserved for appeal and will be

reviewed under an abuse-of-discretion standard. Otherwise, the issue is waived and

costs are res judicata.”).

       {¶3} Second, even if not res judicata because they were not raised on direct appeal,

the cost issues are nonetheless untimely in a way that deprived the court of jurisdiction to

hear them. A motion to vacate or correct a sentence filed after a direct appeal is treated
as a petition for postconviction relief under R.C. 2953.21. See State v. Schlee, 117 Ohio

St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12; State v. Ali, 8th Dist. Cuyahoga No.

99062, 2013-Ohio-2696, ¶ 7. Although Dudley only appealed from one of his four

convictions (State v. Dudley, 8th Dist. Cuyahoga No. 94972, 2011-Ohio-726), the time

for filing an appeal in the other three cases had long since expired, so we consider the

motions to vacate the sentences in the three cases that were not appealed to be

postconviction petitions. That being the case, the motions to vacate sentence had to be

filed within 180 days after the expiration of the time for filing an appeal or, in the case

where an appeal was filed, within 180 days after the date on which the trial transcript was

filed in the court of appeals in the direct appeal of the judgment of conviction or

adjudication. See R.C. 2953.21(A)(2). In none of the four cases being appealed from

did Dudley file his motion to vacate sentence in a timely manner, so the court lacked

jurisdiction to consider those motions. State v. Johns, 8th Dist. Cuyahoga No. 93226,

2010-Ohio-162, ¶ 8.

      {¶4} Finally, even if we could view the motions to vacate sentence as being timely

filed and not res judicata because the issues in those motions were not raised on direct

appeal, they were nonetheless res judicata for a different reason: Dudley did not appeal

when the court denied his first set of motions in March 2012. Instead, Dudley waited

just over one year and then refiled the same motions. It was only after the court denied

those motions a second time in May 2013 that Dudley appealed. So apart from all of the

other defects with his motions, Dudley’s failure to file an appeal in March 2012, like his
failure to raise the issue on direct appeal, rendered the cost issues res judicata. State v.

Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 59, citing State v. Perry,

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

       {¶5} Judgment affirmed.

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

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

County Court of Common Pleas to carry this judgment into execution.               A   certified

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

Appellate Procedure.




MELODY J. STEWART, JUDGE

PATRICIA ANN BLACKMON, P.J., and
TIM McCORMACK, J., CONCUR
