[Cite as State v. Gibbs, 2014-Ohio-5773.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                      GEAUGA COUNTY, OHIO


STATE OF OHIO,                                  :         OPINION

                 Plaintiff-Appellee,            :
                                                          CASE NO. 2014-G-3213
        - vs -                                  :

RICHARD W. GIBBS,                               :

                 Defendant-Appellant.           :


Criminal Appeal from the Geauga County Court of Common Pleas, Case No. 06 C
000077.

Judgment: Affirmed.


James R. Flaiz, Geauga County Prosecutor, and Nicholas A. Burling, Assistant
Prosecuting Attorney, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH
44024 (For Plaintiff-Appellee).

Richard W. Gibbs, pro se, PID: A530-087, London Correctional Institution, P.O. Box
69, 1580 State Route 56, SW, London, OH 43140 (For Defendant-Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     This matter, submitted on the record and briefs of the parties, involves an

appeal taken by appellant, Richard W. Gibbs, from a judgment entered by the Geauga

County Court of Common Pleas denying appellant’s motion for relief from judgment,

pursuant to Civ.R. 60(B)(5). We affirm.

        {¶2}     On July 11, 2006, appellant was indicted on 10 counts of gross sexual

imposition (“GSI”), in violation of R.C. 2907.05(A)(3), felonies of the third degree, for
crimes he allegedly committed between January 1, 1987 and December 31, 1989.

Appellant pleaded not guilty to the charges. He eventually entered pleas of guilty on the

first six of the 10 counts. The trial court accepted the plea and nolled the remaining

counts. Appellant was ultimately sentenced pursuant to the felony-sentencing scheme

in effect at the time the crimes were committed. Appellant received indefinite terms of

four to 10 years on counts one and two, to run concurrently to each other; four to 10

years on counts three and four, to run concurrently with each other, but consecutively to

counts one and two; and four to 10 years on counts five and six, to run concurrently with

each other, but consecutively to counts three and four. In total, appellant received an

aggregate prison term of 12-30 years. He was also classified as a sexual predator.

Appellant did not appeal his conviction.

      {¶3}   In February 2010, appellant filed a “motion to vacate a void sentence.”

The trial court denied the motion and appellant appealed the judgment to this court. The

appeal, however, was dismissed for failure to file a timely notice of appeal. See State v.

Gibbs, 11th Dist. Geauga No. 2010-G-2967, 2010-Ohio-2675, ¶10.

      {¶4}   Appellant then filed a “motion to dismiss the indictment” in September,

2012. The court denied the motion and appellant did not appeal that judgment.

      {¶5}   In October 2012, appellant filed a “motion to withdraw his guilty plea.” The

court denied the motion. Appellant appealed and, in State v. Gibbs, 11th Dist. Geauga

No. 2012-G-3123, 2014-Ohio-1341, this court affirmed the judgment.

      {¶6}   In April 2014, appellant filed a “motion for relief from judgment pursuant to

Civ.R. 60(B).” The trial court denied the motion on May 23, 2014. This appeal follows.




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      {¶7}   Appellant assigns two errors for this court’s review. We shall first address

appellant’s second assignment of error, which provides:

      {¶8}    “The trial court erred to the prejudice of the appellant when the court

recast appellant’s motion and treated it as a post conviction petition were not dehores

the record ruled it to be untimely, applied res judicata to the issues presented in his

motion and denied it without any finding of facts or conclusions of law in regards to the

issues presented.” (Sic passim).

      {¶9}   Under this assigned error, appellant argues the trial court improperly

construed his Civ.R. 60(B) motion as a petition for postconviction relief. And, in doing

so, the trial court improperly found the motion untimely as well as erred in applying the

doctrine of res judicata. We do not agree.

      {¶10} When the rules of criminal procedure do not address an issue, an

applicable Ohio Civil Rule may apply. State v. Belknap, 11th Dist. No. 2002-P-0021,

2004-Ohio-5636, ¶25. In this matter, appellant attempts to have his conviction vacated

because it was entered in violation of the ex post facto clause of the United States

Constitution. Given the nature of appellant’s challenge, Civ.R. 60(B) does not apply.

      {¶11} The Supreme Court of Ohio has observed that “where a criminal

defendant, subsequent to his or her direct appeal, files a motion seeking vacation or

correction of his or her sentence on the basis that his or her constitutional rights have

been violated, such a motion is a petition for postconviction relief as defined in R.C.

2953.21.” State v. Reynolds, 79 Ohio St.3d 158, 160 (1997). Because appellant is

seeking to vacate his conviction based upon a violation of his constitutional rights, the




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trial court properly construed his motion as a petition for postconviction relief pursuant to

R.C. 2953.21.

       {¶12} Moreover, it is well settled that a final judgment of conviction bars a

defendant from raising in any proceeding, except a direct appeal from that conviction,

any non-jurisdictional issues that were raised or could have been raised by the

defendant at trial or on an appeal from that judgment. See e.g. State v. Perry, 10 Ohio

St.2d 175 (1967), paragraphs six and nine. The expiration of a statute of limitations is a

non-jurisdictional defect. Daniel v. State, 98 Ohio St.3d 467, 2003-Ohio-1916, ¶7, citing

State ex rel. Tubbs Jones v. Suster, 84 Ohio St.3d 70, 76 (1998).               Accordingly,

appellant’s failure to raise the issue on a direct appeal operates to bar the argument by

operation of res judicata. The trial court did not err in so concluding.

       {¶13} Appellant’s second assignment of error lacks merit.

       {¶14} Appellant’s first assignment of error provides:

       {¶15} “Appellant’s rights were violated when the state violated the statute of

limitations and prosecuted appellant beyond the statute of limitations and applying the

tolling statute to his case retroactively.”

       {¶16} Under his first assignment of error, appellant argues, at the time he

committed the offenses, between 1987 and 1989, the statute of limitations period for

gross sexual imposition was six years. He was not indicted, however, until 2006. He

asserts the limitations period expired prior to his indictment, and the trial court

consequently violated the constitutional prohibition against ex post facto laws by utilizing

the 20-year limitation period that became effective in 1999.




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       {¶17} As discussed under appellant’s second assignment of error, his argument

under his first assignment of error is barred by res judicata.          Even if appellant’s

argument was not barred by res judicata, however, it lacks merit.

       {¶18} The United States Supreme Court has set forth the following list of actions

that are constitutionally prohibited under the ex post facto clause:

       {¶19} “1st. Every law that makes an action done before the passing of the

              law, and which was innocent when done, criminal; and punishes

              such action. 2d. Every law that aggravates a crime, or makes it

              greater than it was, when committed. 3d. Every law that changes

              the punishment, and inflicts a greater punishment, than the law

              annexed to the crime, when committed. 4th. Every law that alters

              the legal rules of evidence, and receives less, or different,

              testimony, than the law required at the time of the commission of

              the offence, in order to convict the offender. All these, and similar

              laws, are manifestly unjust and oppressive.” (Emphasis removed.)

              Stogner v. California, 539 U.S. 607, 612 (2003), quoting Calder v.

              Bull, 3 U.S. 386, 390-391 (1798).

       {¶20} “[A] statute of limitations reflects a legislative judgment that, after a certain

time, no quantum of evidence is sufficient to convict.” Stogner, supra, at 615. To pursue

or revive a prosecution after the expiration of a statute of limitations would eliminate the

conclusive presumption forbidding prosecution. Id. at 616. Nevertheless, the Court in

Stogner acknowledged, albeit in dicta, that the extension of existing limitations periods

is not ex post facto so long as the prior limitations period has not expired. Id. at 618.




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       {¶21} In 1995, the time at which the corpus delicti of appellant’s crimes was

disclosed and the limitations period commenced running, the statute of limitations for

GSI was six years.     See former R.C. 2901.13(A)(1).      The Ohio General Assembly

amended this statute, effective March 9, 1999, and extended the limitations period for

GSI to 20 years. As it now reads, R.C. 2901.13(A)(3)(a) requires that a prosecution for

GSI, inter alia, commence within 20 years subsequent to the commission of the offense.

The amendment applies retroactively to offenses committed prior to the amendment,

provided that the statute of limitations for such offenses had not expired prior to the

amendment. See State v. Bentley, 11th Dist. Asthabula No. 2005-A-0026, 2006-Ohio-

2503, ¶12.

       {¶22} In Bentley, this court concluded the amendment was not an ex post facto

law.   Following the Tenth Appellate District’s decision in State v. Dycus, 10th Dist.

Franklin No. 04-AP-751, 2005-Ohio-3990, this court held:

       {¶23} “[The 1999 amendment] does not punish any action that was

              formerly not a crime or increase the penalty for a crime already

              committed. Nor does it alter the legal rules of evidence. Because

              the pre-existing six-year statute of limitations period applicable to

              defendant had not expired when the statutory amendment to R.C.

              2901.13 was enacted, we find that the retroactive application of

              amended R.C. 2901.13 does not violate the Ex Post Facto Clause.”

              Bentley, supra, at ¶51, quoting Dycus, supra, at ¶21.

       {¶24} In this matter, the amendment took effect within the then-existing, six-year

limitations period for a GSI prosecution. Accordingly, the 1999 amendment, permitting




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a GSI charge to be prosecuted within 20 years, became retroactively applicable to

appellant’s criminal acts. Because appellant was indicted in 2006, eleven years from

the limitation period’s commencement, the prosecution was proper. Thus, even if the

matter was not res judicata, appellant’s prosecution was not premised upon the

application of an ex post facto law and, furthermore, was accomplished within the

relevant limitations period.

       {¶25} Appellant’s first assignment of error is without merit.

       {¶26} For the reasons discussed in this opinion, the judgment of the Geauga

County Court of Common Pleas is affirmed.



TIMOTHY P. CANNON, P.J., concurs,

COLLEEN MARY O’TOOLE, J., concurs with a Concurring Opinion.

                               ______________________


COLLEEN MARY O’TOOLE, J., concurs with a Concurring Opinion.


       {¶27} I concur with the majority’s holding that appellant’s failure to raise these

issues on a direct appeal prevents him from arguing them now as they are barred by res

judicata. I write separately to note that appellant has never had his case reviewed on

direct appeal. Appellant has filed multiple appeals and motions with this court over the

years all seeking the same thing: appellate review of his conviction.

       {¶28} Appellant’s judgment of conviction was filed in May 2007. In May 2010,

appellant filed a “motion to vacate a void sentence” in the trial court. The trial court

denied the motion and appellant appealed the judgment to this court. This appeal was




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dismissed as untimely. State v. Gibbs, 11th Dist. Geauga No. 2010-G-2967, 2010-

Ohio-2675. In December 2012, appellant filed an appeal to this court based upon the

trial court’s denial of his motion to withdraw his guilty plea. This court affirmed the trial

court. State v. Gibbs, 11th Dist. Geauga No. 2012-G-3123, 2014-Ohio-1341. Currently,

Mr. Gibbs has a pro se motion for leave to file a delayed appeal pursuant to App.R. 5(A)

pending before this court, Case No. 2014-G-3201.

       {¶29} The Staff Note to the 1994 Amendment to App.R. 5(A) warns of the

subsequent litigation that can occur when appellants are denied review of their cases.

The Staff Note provides in part:

       {¶30} “Although there was also concern about the fairness of requiring usually

indigent, and frequently unrepresented, criminal defendants to demonstrate (often

without the benefit of a transcript) the probability of error, the primary reason for this

amendment is judicial economy. Denial of leave to file a delayed appeal for failure to

demonstrate the probability of error usually leads to subsequent litigation of the issue by

direct appeals to the Ohio and United States Supreme Courts, petitions to vacate

sentence under R.C. 2953.21 et seq., and appeals thereon, and/or federal habeas

corpus petitions and appeals. Review of the merits by the courts of appeals upon the

initial (albeit delayed) appeal would thus avoid the presentation of the probability of error

issue to as many as nine subsequent tribunals.”

       {¶31} Denied review of the merits of his case, appellant continues to file motions

with the trial court and subsequent appeals with this court, all at the taxpayer’s expense.

It would be more cost effective for this court to consider any such alleged error, bring




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this matter to a quick, final close and thus avoid the presentation of error issues to

subsequent tribunals or further filings by Mr. Gibbs with the trial court.




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