[Cite as State v. Butler, 2018-Ohio-3558.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                        Hon. William B. Hoffman, J.
                                                  Hon. Craig R. Baldwin, J.
-vs-
                                                  Case No. 2018CA00034
JAMES CURTIS BUTLER, JR.

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Stark County Court of
                                               Common Pleas, Case No. 87-7548


JUDGMENT:                                      Affirmed

DATE OF JUDGMENT ENTRY:                         September 4, 2018

APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

JOHN D. FERRERO                                JAMES CURTIS BUTLER, JR., PRO SE
PROSECUTING ATTORNEY                           #207-638
STARK COUNTY, OHIO                             Marion Correctional Institution
                                               P.O. Box 57
By: RONALD MARK CALDWELL                       Marion, Ohio 43301
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2018CA00034                                                         2

Hoffman, J.


         {¶1}   Defendant-appellant James Curtis Butler, Jr. appeals the February 26, 2018

Judgment Entry entered by the Stark County Court of Common Pleas, which denied his

Motion for Issuance of a Final Appealable Order and Motion for Shock Probation. Plaintiff-

appellee is the state of Ohio.

                             STATEMENT OF THE CASE AND FACTS1

         {¶2}   In 1987, then 15 year old Appellant was charged with delinquency by reason

of committing the crime of aggravated murder. The charge arose from the stabbing death

of 74 year old Helen Crawford on August 5, 1987. The Court of Common Pleas, Juvenile

Division, relinquished jurisdiction and bound the case over to the General Division for

prosecution of Appellant as an adult.        Appellant waived his right to have the case

presented to a grand jury. After a competency evaluation, Appellant entered a plea of

guilty to one count of aggravated murder.

         {¶3}   The court sentenced Appellant to a term of life imprisonment with parole

eligibility after 20 years. Appellant appealed, specifically challenging the juvenile court’s

order relinquishing jurisdiction. This Court affirmed the juvenile court’s order. State v.

Butler, 5th Dist. Stark App. No. 7494 (Dec. 12, 1988). Appellant appealed the decision to

the Ohio Supreme Court, which accepted the case for review, and affirmed this Court’s

decision. State v. Butler (1990), 48 Ohio St.3d 78, 549 N.E.2d 516.

         {¶4}   On February 21, 2001, the trial court conducted a R.C. 2950.09

classification hearing to determine Appellant's status as a sex offender. At the hearing,




1   A full Statement of the Facts is not necessary for our disposition of this Appeal.
Stark County, Case No. 2018CA00034                                                          3


the State introduced several exhibits and presented the testimony of three of the police

officers who investigated the death of Helen Crawford, as well as the father of the female

classmate Appellant had apparently sexual assaulted approximately one month prior to

the Crawford homicide. Based upon this evidence, the trial court found by clear and

convincing evidence Appellant had committed the aggravated murder of Crawford “with

a purpose to gratify [his] sexual needs or desires”, and adjudicated him a sexual predator

pursuant to R.C. 2950.09. Appellant appealed the classification to this Court, which

affirmed. State v. Butler, 5th Dist. No.2001 CA00069, 2002-Ohio-774. The Ohio Supreme

Court accepted jurisdiction, but subsequently dismissed Appellant’s appeal as

improvidently granted. State v. Butler, 98 Ohio St. 3d 1218, 2003-Ohio-2017.

       {¶5}   On October 24, 2016, Appellant filed a pleading captioned “Motion for

Issuance of a Final Appealable Order and Motion for Shock Probation”. The State

responded, urging the trial court to treat the motion as a petition for post-conviction relief

and arguing such should be summarily dismissed. Via Judgment Entry filed February 26,

2018, the trial court denied the motion. The trial court found, despite the caption, the

motion constituted a petition for post-conviction relief. The trial court found the motion to

be untimely and barred by the doctrine of res judicata.

       {¶6}   It is from this judgment entry Appellant appeals, raising the following

assignments of error:



              I.   WHEN     A   TRIAL     COURT      DISREGARDS         STATUTORY

       REQUIREMENTS WHEN IMPOSING A SENTENCE, TWO FATAL

       RESULTS OCCUR: (1) THE JUDGMENT IS RENDERED VOID, State v,
Stark County, Case No. 2018CA00034                                                        4

       Beasley, (1984), 14 Ohio St. 3d 74, *75; AND, (2) THE DOCTRINE OF RES

       JUDICATA IS INAPPLICABLE AS A MATTER OF LAW AND FACT. SEE

       State v. Simpkins, 117 Ohio St. 3d 420, at: *23; and *30.



              II. WHETHER THE RECHARACTERIZATION OF A PRO SE

       DEFENDANT’S MOTION CHALLENGING A SENTENCE THAT IS VOID

       ON PURELY STATUTORY GROUNDS, AND WHERE SUCH JUDGMENT

       IS ‘FACIALLY VOID’ MAY BE PROPERLY DISMISSES [SIC] AS A POST

       CONVICTION RELIEF PETITION.



                                               I, II

       {¶7}   We elect to address Appellant’s assignments of error together. Appellant

takes issue with the trial court’s treatment of his motion as a petition for post-conviction

relief. Appellant contends, because the motion challenges a void sentence, the trial court

erred in applying the doctrine of res judicata and dismissing the same. We agree, in part.

       {¶8}   Despite its caption, an appellant's pleading which (1) is filed subsequent to

the expiration of appellant's time for filing a direct appeal; (2) claims the denial of

constitutional rights; (3) seeks to render the judgment void or voidable; and (4) asks the

trial court to vacate the judgment and sentence, is a petition for post-conviction relief

pursuant to R.C. 2953.21(A)(1). State v. Reynolds (1997), 79 Ohio St.3d 158, 160; State

v. Wofford, 5th Dist. Stark No. 2016CA00087, 2016–Ohio–4628, ¶ 15.

       {¶9}   R.C. 2953.21 governs petitions for post-conviction relief and provides, in

pertinent part:
Stark County, Case No. 2018CA00034                                                        5




             (A)(1)(a) Any person who has been convicted of a criminal offense *

      * * and who claims that there was such a denial or infringement of the

      person's rights as to render the judgment void or voidable under the Ohio

      Constitution or the Constitution of the United States, * * * may file a petition

      in the court that imposed sentence, stating the grounds for relief relied upon,

      and asking the court to vacate or set aside the judgment or sentence or to

      grant other appropriate relief. The petitioner may file a supporting affidavit

      and other documentary evidence in support of the claim for relief.

             ***

             (2) Except as otherwise provided in section 2953.23 of the Revised

      Code, a petition under division (A)(1) of this section shall be filed no later

      than three hundred sixty-five days after the date on which the trial transcript

      is filed in the court of appeals in the direct appeal of the judgment of

      conviction * * *.



      {¶10} In his Motion for Issuance of a Final Appealable Order and Motion for

Shock Probation, Appellant raised several challenges to his conviction.          Appellant’s

primary challenge was to the validity of the burglary offense as a predicate offense to the

aggravated murder charge under R.C. 2903.01(B), claiming there was insufficient

evidence to support a conviction for burglary. Appellant also asserted the trial court

lacked jurisdiction to accept his plea based upon the Ohio Supreme Court’s holding in

State v. Parker, 95 Ohio State 524, 2002-Ohio-2833. In Parker, the Supreme Court held
Stark County, Case No. 2018CA00034                                                          6


a “defendant charged with a crime punishable by death who has waived his right to trial

by jury must * * * have his case heard and decided by a three-judge panel even if the

state agrees that it will not seek the death penalty.” Id. Further, Appellant argued he is

eligible for shock probation.

       {¶11} The trial court found Appellant's arguments regarding State v. Parker,

supra, unpersuasive as Appellant was not charged with a death penalty specification. It

found Appellant’s other arguments were barred by the doctrine of res judicata. “Res

judicata is applicable in all post-conviction relief proceedings.” State v. Szefcyk, 77 Ohio

St.3d 93, 95, 1996–Ohio–337.

       {¶12} “Under the doctrine of res judicata, a final judgment of conviction bars the

defendant from raising and litigating in any proceeding, except an appeal from that

judgment, any defense or any claimed lack of due process that the defendant raised or

could have raised at the trial which resulted in that judgment of conviction or on appeal

from that judgment.” State v. Snyder, 5th Dist. Tuscarawas No.2015AP070043, 2016–

Ohio–832, ¶ 26 quoting State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967).

Further, it is well established, pursuant to res judicata, a defendant cannot raise an issue

in a motion for post-conviction relief if he or she could have raised the issue on direct

appeal. State v. Duling (1970), 21 Ohio St.2d 13, 50 O.O.2d 40, 254 N.E.2d 670.

       {¶13} We agree with the trial court and find Appellant’s arguments relative to the

sufficiency of the evidence and his eligibility for shock probation are barred by the doctrine

of res judicata. We further agree Parker is inapplicable.

       {¶14} However, in his Motion for Issuance of a Final Appealable Order and Motion

for Shock Probation, Appellant also argued the trial court’s use of the language he “be
Stark County, Case No. 2018CA00034                                                         7


committed to the appropriate penal institution * * * for the remainder of his life” did not

constitute strict compliance with R.C. 2929.03, and, as a result, rendered his sentence

void.

        {¶15} The trial court summarily overruled this argument, noting:



               Butler also mentions language about his criminal sentence, jury

        waiver, fine, and about a “binary plea” that seemingly relates to a no contest

        plea. These arguments are incomplete and illogical, and are barred from

        collateral review on res judicata grounds. Butler could have raised these

        claims at the trial court or on direct appeal from his conviction and sentence.

        February 26, 2018 Judgment Entry at 8.



        {¶16} Appellant’s appeal is primarily based upon a claim his sentence is illegal;

therefore, void, because it did not mirror the statute. The State, did not address this

specific argument in its response brief. Appellant’s claim is not based upon an alleged

constitutional violation but rather a statutory violation. As such, we do not find his motion

may be treated as a post-conviction relief petition.

        {¶17} “A sentence that is not in accordance with statutorily mandated terms is

void,” and “is not precluded from appellate review by principles of res judicata, and may

be reviewed at any time, on direct appeal or by collateral attack.” State v. Fischer, 128

Ohio St.3d 92, 2010–Ohio–6238, 942 N.E.2d 332, ¶ 8 and paragraph one of the syllabus.

.
Stark County, Case No. 2018CA00034                                                            8


       {¶18} Appellant was sentenced pursuant to R.C. 2929.03(A), which provides, in

relevant part:



                 (A) If the indictment or count in the indictment charging aggravated

       murder does not contain one or more specifications of aggravating

       circumstances listed in division (A) of section 2929.04 of the Revised Code,

       then, following a verdict of guilty of the charge of aggravated murder, the

       trial court shall impose sentence on the offender as follows:

                 (1) Except as provided in division (A)(2) of this section, the trial court

       shall impose one of the following sentences on the offender:

                 (a) Life imprisonment without parole;

                 (b) Subject to division (A)(1)(e) of this section, life imprisonment with

       parole eligibility after serving twenty years of imprisonment;

                 (c) Subject to division (A)(1)(e) of this section, life imprisonment with

       parole eligibility after serving twenty-five full years of imprisonment;

                 (d) Subject to division (A)(1)(e) of this section, life imprisonment with

       parole eligibility after serving thirty full years of imprisonment * * *.

                 R. C. 2929.03(A).



       {¶19} The trial court sentenced Appellant as follows:



                 IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that

       the defendant be committed to the appropriate penal institution to be
Stark County, Case No. 2018CA00034                                                         9


       determined by the Correctional Reception Center in Orient, Ohio, for the

       remainder of his life, or until otherwise pardoned, paroled or released

       according to law, on Aggravated Murder, 1 Ct. (R.C. 2903.01) * * * March

       22, 1988 Judgment Entry.



       {¶20} Appellant asserts this language does not strictly comply with R.C. 2909.03;

therefore, his sentence is void. We disagree. We find the language of the March 22,

1988 Judgment Entry to be functionally equivalent to the statutory language, and such

does not render Appellant’s sentence illegal or void. Because Appellant’s sentence is not

illegal, he cannot collaterally attack the sentence. Accordingly, the trial court did not err

in overruling his motion on this ground, albeit for a different reason.

       {¶21} Based upon the foregoing, we find the trial court properly denied Appellant’s

petition.

       {¶22} Appellant’s first and second assignments of error are overruled.

       {¶23} The judgment of the Stark County Court of Common Pleas is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Baldwin, J. concur
