[Cite as State v. Jones, 2013-Ohio-3434.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 99391



                                       STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                            VINCE JONES
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                               Case Nos. CR-525681 and CR-526447

        BEFORE: Boyle, P.J., Keough, J., and Blackmon, J.

        RELEASED AND JOURNALIZED:                       August 8, 2013
FOR APPELLANT

Vince Jones, pro se
Inmate No. 572-912
Marion Correctional Institution
P.O. Box 57
Marion, Ohio 43301


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Kristen L. Sobieski
Assistant County Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:

       {¶1} Defendant-appellant, Vince Jones, appeals from a judgment denying his

motion to vacate his sentence for a “restitution hearing and resentencing.” He raises six

assignments of error for our review.   We find no merit to any of them and affirm.

                                    Procedural History

       {¶2} In July 2009, Jones was indicted in two separate cases, Cuyahoga C.P. Nos.

CR-525681 and CR-526447. He was charged with a total of 20 counts, but eventually

entered into a plea agreement where he pleaded guilty to six counts.       In Cuyahoga C.P.

No. CR-525681, he pleaded guilty to one count of identity fraud, one count of forgery,

and one count of aggravated theft, and agreed to pay restitution in the amount of $12,700.

 In Cuyahoga C.P. No. CR-526447, he pleaded guilty to one count of identity fraud, one

count of forgery, and one count of tampering with records, and agreed to pay restitution in

the amount of $4,837.52. All additional charges were nolled.

       {¶3} Jones was sentenced to a total of four years in prison in Cuyahoga C.P. No.

CR-525681, and a total of four years in prison in Cuyahoga C.P. No. CR-526447. The

sentences were ordered to run consecutively, for a total of eight years in prison.

       {¶4} The trial court also ordered Jones to pay restitution in the amount he agreed

to pay in his plea agreement, as well as costs.   But the trial court failed to mention either

restitution or costs at the sentencing hearing. As a result, on direct appeal, this court

sustained Jones’s arguments regarding restitution and costs, vacated his sentence, and
remanded for a new sentencing hearing.        See State v. Jones, 8th Dist. Cuyahoga No.

94408, 2011-Ohio-453.

       {¶5} We further found that the trial court incorrectly “confused which charge

carried the four-year sentence.”         Because we were already remanding for a new

sentencing hearing on restitution and costs, we also instructed the trial court to correctly

state the proper sentence for each charge at the sentencing hearing and in the sentencing

entry. Id. at ¶ 56.

       {¶6} Upon remand, the trial court resentenced Jones in March 2011, imposing

the same eight-year prison sentence and correcting the errors it had made at the original

sentencing hearing. Although Jones appealed this sentence, this court dismissed his

appeal for failure to file the record.

       {¶7} Jones subsequently filed numerous motions with the trial court, all all which

were denied.    Finally, in July 2012, he moved the court to vacate his sentence for a

“restitution hearing and resentencing,” which the trial court also denied.   It is from that

judgment that Jones appeals, raising his six assignments of error.

                                           Analysis

       {¶8} 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). Jones’s motion meets these four requirements. Accordingly, we

shall construe his motion as a petition for postconviction relief.       See also State v.

Meincke, 8th Dist. Cuyahoga No. 96407, 2011-Ohio-6473.

       {¶9} A trial court’s decision to grant or deny a petition for postconviction relief

filed pursuant to R.C. 2953.21 should not be disturbed absent an abuse of discretion.

State v. White, 118 Ohio St.3d 12, 2008-Ohio-1623, 885 N.E.2d 905, ¶ 45. Abuse of

discretion implies that the court’s attitude is unreasonable, arbitrary, or unconscionable.

Id. at ¶ 46.

       {¶10} Under R.C. 2953.21(A)(2), “[a] petition * * * shall be filed no later than one

hundred eighty 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 or adjudication[.]”   In State v.

Sharif, 8th Dist. Cuyahoga No. 79325, 2001 Ohio App. LEXIS 4354 (Sept. 27, 2001), this

court held that a trial court may only entertain an untimely petition for postconviction

relief under the following circumstances:

       1) the petitioner shows either that he was unavoidably prevented from
       discovering the facts upon which he relies in his petition, or that the United
       States Supreme Court has, since the expiration of the period for timely
       filing, recognized a new federal or state right that applies retroactively to
       the petitioner; and 2) the petitioner shows by clear and convincing evidence
       that a reasonable factfinder would not have found him guilty but for
       constitutional error at trial.

Id. at *9-10.

       {¶11} Here, the trial court properly dismissed Jones’s petition for postconviction

relief. The time limitation for filing a motion for postconviction relief is jurisdictional,
and a trial court has no authority to consider an untimely filed petition for postconviction

relief absent an exception.         State v. John, 8th Dist. Cuyahoga No. 93226,

2010-Ohio-162, ¶ 8; State v. Hutton, 8th Dist. Cuyahoga No. 80763, 2007-Ohio-5443, ¶

23. Jones was resentenced in March 2011. He did not file his motion until July 2012.

Further, Jones has not shown he was unavoidably prevented from discovering facts

relating to his petition or that any new federal or state right applies. Accordingly, the

trial court was without jurisdiction to address his petition.

       {¶12} Even if Jones had timely filed his motion, his appeal is without merit for

several other reasons. In his first assignment of error, he argues that in his first appeal,

this court violated Crim.R. 52(B) by not noticing “the obvious defects” that occurred at

his original sentencing hearing.   He maintains that we “should have recognized the many

plain errors and obvious defects that were present” in his original sentencing transcript.

If Jones had an issue with this court’s decision regarding his direct appeal from his

original sentencing hearing, however, he should have raised them in an appeal to the Ohio

Supreme Court.

       {¶13} In his remaining five assignments of error, Jones raises issues related to his

resentencing hearing.    But these issues are barred by the doctrine of res judicata.   Res

judicata precludes a convicted defendant from raising an issue in a motion for

postconviction relief if he or she raised or could have raised the issue on direct appeal.

State v. Sturdivant, 8th Dist. Cuyahoga No. 98747, 2013-Ohio-584, ¶ 13, citing State v.

Alexander, 8th Dist. Cuyahoga No. 95995, 2011-Ohio-1380, ¶ 15. See also State v.
Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), at paragraph nine of the syllabus.

Jones appealed his resentencing judgment to this court, but we dismissed his appeal

because he failed to timely file the record.

       {¶14} Accordingly, Jones’s six assignments of error are without merit.

       {¶15} 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, PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., and
PATRICIA ANN BLACKMON, J., CONCUR
