[Cite as State v. Rose, 2012-Ohio-5957.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                           BUTLER COUNTY




STATE OF OHIO,                                   :
                                                       CASE NO. CA2012-03-050
        Plaintiff-Appellee,                      :
                                                               OPINION
                                                 :              12/17/2012
    - vs -
                                                 :

JERRY ROSE,                                      :

        Defendant-Appellant.                     :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                           Case No. CR07-07-1192



Blake P. Somers, 114 East Eighth Street, Cincinnati, Ohio 45202, for plaintiff-appellee

Rion, Rion & Rion, L.P.A., Inc., Jon Paul Rion, 130 West Second Street, Suite 2150, Dayton,
Ohio 45402, for defendant-appellant



        S. POWELL, P.J.

        {¶ 1} Defendant-appellant, Jerry Rose, appeals the denial of his postconviction

request for a restitution and resentencing hearing. We affirm the trial court as Rose did not

meet the procedural requirements for postconviction relief and his issues were either

previously raised or could have been raised.

        {¶ 2} Rose pled guilty in the Butler County Common Pleas Court in 2007 to three

felonies in connection with a fraudulent investment operation. Several months later, as part
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of Rose's sentencing, the trial court imposed an order of restitution. The amount of

restitution – approximately $17.7 million – was determined with the assistance of a court-

appointed receiver, who was reportedly using financial records provided by Rose.

        {¶ 3} Rose appealed his conviction, but his direct appeal was denied. Subsequent

postconviction motions were also unsuccessful. Rose next moved for a restitution and

resentencing hearing. The trial court denied the motion, finding it barred by res judicata.

Rose appeals that determination, presenting a single assignment of error for our review:

        {¶ 4} THE TRIAL COURT ERRED IN DENYING APPELLANT'S REQUEST FOR A

RESTITUTION AND RESENTENCING HEARING[.]

        {¶ 5} Under his assignment of error, Rose argues that: he is entitled to be

resentenced because his sentence was based on his investor-victims' financial losses, which,

he claims, were later proven false; he is entitled to a restitution hearing under R.C. 2929.18;

and res judicata is not applicable because his claims are based on new evidence from

reports issued by the court-appointed receiver after the restitution order was made.

        {¶ 6} Rose claims that reports from the court-appointed receiver generated after the

sentencing hearing indicate the actual net loss for the investor-victims may be roughly half

the amount of the $17.7 million restitution order. Rose argues the trial court was likely

influenced by the erroneous claims of the victims, resulting in a lengthy prison sentence, and

he is entitled to be resentenced after a restitution hearing is held.

        {¶ 7} According to the record, Rose raised the argument that error was occasioned

when victim-investors inflated their losses in his December 2009 "Motion to Vacate Plea;

Motion to Vacate Sentence; Alternatively, Petition for Post Conviction Relief." The trial court

denied the motion, finding that the "claimed discrepancies did not amount to 'new evidence'

in the case." Rose appealed. See State v. Rose, 12th Dist. No. CA2010-03-059, 2010-Ohio-

5669.
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       {¶ 8} In case number CA2010-03-059 this court rejected Rose's claims both for his

motion to vacate his plea and his postconviction petition.

       {¶ 9} This court found that the information regarding the investors' losses did not

qualify as newly discovered evidence for purposes of a Crim.R. 32.1 motion to withdraw his

plea. This court also found that Rose was not unavoidably prevented from discovering those

facts for his successive petition for postconviction relief.

       {¶ 10} Specifically, this court stated that, "[h]aving provided the financial records

associated with the criminal scheme to the receiver, appellant [Rose] has not established he

was unavoidably prevented from discovering the records. Appellant was in the best position

to know the financial records relevant to the case." Id. at ¶ 26.

       {¶ 11} In the instant appeal, Rose again raises the argument that error occurred when

the investors made false claims about their losses. This time, Rose raises the argument

within the context of restitution and resentencing.

       {¶ 12} The financial sanctions section of the applicable version of R.C. 2929.18 states,

in part, that a trial court may order the offender to pay restitution to the victim of the

offender's crime in an amount based on the victim's economic loss. If the court imposes

restitution as part of its sentence, it shall determine the amount of restitution to be paid by the

offender, and may base the amount of restitution on an amount recommended by the victim,

the offender, a presentence investigation report, and other information, provided that the

amount the court orders as restitution shall not exceed the amount of the economic loss

suffered by the victim as a direct and proximate result of the commission of the offense. R.C.

2929.18.

       {¶ 13} If the court decides to impose restitution, the court shall hold a hearing on

restitution if the offender, victim, or survivor disputes the amount. R.C. 2929.18.

       {¶ 14} Where a criminal defendant, subsequent to his direct appeal, files a motion
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seeking vacation or correction of his sentence on the basis that his 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 (1997), syllabus.

       {¶ 15} The remedy set forth in R.C. 2953.21 is the exclusive remedy by which a

person may bring a collateral challenge to the validity of a conviction or sentence in a criminal

case. State v. Bush, 96 Ohio St. 3d 235, 238, 2002-Ohio-3993.

       {¶ 16} A petition for postconviction relief, however, does not provide a petitioner a

second opportunity to litigate his or her conviction, nor is the petitioner automatically entitled

to an evidentiary hearing on the petition. State v. Hessler, 10th Dist. No. 01AP-1011, 2002-

Ohio-3321, ¶ 32.

       {¶ 17} Pursuant to R.C. 2953.23(A), a court may not entertain an untimely petition or a

second or successive petition unless the petitioner initially demonstrates either he was

unavoidably prevented from discovering facts necessary for the claim for relief, or the United

States Supreme Court recognized a new federal or state right that applies retroactively to

persons in the petitioner's situation. If the petitioner was able to satisfy one of those two

conditions, R.C. 2953.23(A) requires he also must demonstrate that but for the constitutional

error at trial, no reasonable fact finder would have found him guilty of the offenses for which

he was convicted.

       {¶ 18} As previously stated by the trial court and this court, Rose was aware of the

information contained in the financial records he provided to the receiver before restitution

was ordered. Rose's petition does not fall within the parameters outlined in R.C. 2953.23(A).

Accordingly, the trial court lacked jurisdiction to consider his petition for postconviction relief.

       {¶ 19} In addition, the other significant restriction on Ohio's statutory procedure for

postconviction relief is the doctrine of res judicata. State v. Rutledge, 10th Dist. No. 11AP-

853, 2012-Ohio-2036, ¶ 12.
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       {¶ 20} Under res judicata, a final judgment of conviction bars a convicted defendant

who was represented by counsel from raising and litigating in any proceeding except an

appeal from judgment, any defense or any claimed lack of due process that was raised or

could have been raised by the defendant at the trial, which resulted in that judgment or

conviction, or on an appeal from that judgment. State v. Perry, 10 Ohio St.2d 175, (1967),

paragraph nine of the syllabus; Grava v. Parkman Twp., 73 Ohio St.3d 379, 381 (1995). Res

judicata implicitly bars a petitioner from "re-packaging" evidence or issues which either were

or could have been raised in trial or direct appeal. Rutledge at ¶ 12.

       {¶ 21} To overcome the res judicata bar, evidence offered dehors or outside the

record must demonstrate that the petitioner could not have appealed the constitutional claim

based upon information in the original record. State v. Lawson, 103 Ohio App.3d 307, 315

(12th Dist.1995).

       {¶ 22} As previously noted, the evidence presented to determine restitution was

provided by Rose to the receiver and the claims upon which the trial court relied to determine

restitution were made part of the record. Rose's assertions about the investors-victims'

claimed losses and the restitution order are barred by res judicata, and, hence, the trial court

did not err in failing to hold a hearing. Lawson; see State v. Mason, 10th Dist. Nos. 12AP-

120, 12AP-121, 2012-Ohio-4510.

       {¶ 23} Accordingly, we find that res judicata and the lack of jurisdiction to consider

Rose's postconviction petition bars his requested relief.         Rose is not entitled to a

resentencing hearing, and his single assignment of error is overruled.

       {¶ 24} Judgment affirmed.


       RINGLAND and HENDRICKSON, JJ., concur.




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