[Cite as State v. Osborn, 2018-Ohio-3866.]


                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                               ADAMS COUNTY

STATE OF OHIO,                  :
                                :   Case No. 18CA1064
     Plaintiff-Appellee,        :
                                :
     vs.                        :   DECISION AND JUDGMENT
                                :   ENTRY
MATTHEW OSBORN,                 :
                                :
     Defendant-Appellant.       :   Released: 09/21/18
_____________________________________________________________
                          APPEARANCES:

Matthew Osborn, Chillicothe, Ohio, Appellant, pro se.

David Kelley, Adams County Prosecuting Attorney, and Kris Blanton,
Assistant Adams County Prosecuting Attorney, West Union, Ohio, for
Appellee.
_____________________________________________________________

McFarland, J.

        {¶1} Appellant, Matthew Osborne, appeals from the trial court’s

denial of his "Motion to Correct Sentence." On appeal, Appellant contends

that 1) he was denied effective assistance of counsel; and 2) the lower court

committed prejudicial error in creating its own sentence. Because

Appellant's claim of ineffective assistance of counsel contained in his first

assignment of error constituted an untimely petition for post-conviction

relief, the trial court lacked jurisdiction to address it and should have

dismissed rather than denied it. Next, because Appellant failed to raise
Adams App. No. 18CA1064                                                           2

several issues contained in his second assignment of error at the trial court

level, he is barred from raising them now for the first time on appeal.

However, the remainder of the claims raised under Appellant's second

assignment of error are non-constitutional claims that could have been raised

on direct appeal and, as such, they were barred by res judicata and properly

denied by the trial court.

      {¶2} Accordingly, we find no merit to either of Appellant's

assignments of error and they are overruled. However, in light of our

finding that the trial court lacked jurisdiction to consider the constitutional

ineffective assistance of counsel claim contained in Appellant's first

assignment of error, under the authority of App.R. 12(A)(1)(a) and in

accordance with our disposition of State v. Brown, 4th Dist. Scioto No.

16CA3770, 2017-Ohio-4063, ¶ 38, we hereby modify the judgment appealed

to reflect dismissal of Appellant's constitutional claim, rather than denial of

the claim.

                                    FACTS

      {¶3} In April of 2016, as part of an agreed plea and sentence

arrangement, Appellant pleaded guilty to one count of rape, a first-degree

felony in violation of R.C. 2907.02(A)(2) and the trial court sentenced him

to a seven-year prison term. Appellant did not file a direct appeal of that
Adams App. No. 18CA1064                                                          3

decision or sentence. Subsequently, on February 5, 2018, Appellant filed a

"Motion to Correct Sentence," the trial court's denial of which is the subject

of the current appeal.

      {¶4} In his motion, Appellant claimed "that the sentence imposed

contain[ed] statutory defects that are not in compliance with the legislature."

He argued that the trial court had sentenced him "in lieu of minimum

sanctions as mandated by the legislature." Appellant's motion further stated

that "the charge itself of Rape, a violation of R.C. §2907.02(A)(2), does not

encompass the alleged offenses of Defendant, and are thus contrary to the

overriding purposes of felony sentences[,]" and that the lower court "should

have considered that it was the alleged victim who induced or facilitated the

offense." Appellant further seemed to argue that he should have been found

guilty of the lesser offense of sexual imposition, in violation of R.C.

2907.06, and that his trial counsel, either "carelessly or by design," "ignored

the evidence and circumvented the statutory language of the General

Assembly." Appellant also seemed to argue that the sexual contact at issue

was "facilitated" by the victim and, as such, a seven-year prison term was

unwarranted. Finally, Appellant stated in his motion that "for due process

reasons, the amount of restitution must bear a reasonable relationship to the

alleged loss suffered."
Adams App. No. 18CA1064                                                          4

      {¶5} The State opposed the motion. The trial court construed the

motion as a petition for post-conviction relief and ultimately denied the

motion on two separate grounds. First, the trial court found that Appellant

was "barred from filing an untimely Petition for Relief under §2953.21."

Second, the trial court found that the non-constitutional errors could have

been raised on direct appeal, that Appellant did not file a direct appeal, and

the he was "barred from raising such issues pursuant to State v. Brown, 2017

Ohio 4063." It is from the trial court's March 14, 2018, judgment entry

denying his motion that Appellant now appeals, setting forth two

assignments of error for our review.

                        ASSIGNMENTS OF ERROR

“I.   APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF
      COUNSEL.

II.   THE LOWER COURT COMMITTED PREJUDICIAL ERROR IN
      CREATING THEIR OWN SENTENCE.”

                        ASSIGNMENT OF ERROR I

      {¶6} In his first assignment of error, Appellant contends that he was

denied the effective assistance of counsel at the trial court level. We initially

note that before we can review the denial of Appellant's "Motion to Correct

Sentence," we first need to determine how to characterize the motion. As

this Court recently explained in State v. Brown, supra, and as relied upon by
Adams App. No. 18CA1064                                                         5

the trial court in its judgment entry, " ' "[c]ourts may recast irregular motions

into whatever category necessary to identify and establish the criteria by

which the motion should be judged." ' " Brown at ¶ 19; quoting State v.

Burkes, 4th Dist. Scioto No. 13CA3582, 2014-Ohio-3311, ¶ 11; quoting

State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12.

      {¶7} The Supreme Court of Ohio has held that “[w]here 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 post-

conviction relief as defined in R.C. 2953.21.” State v. Reynolds, 79 Ohio

St.3d 158, 679 N.E.2d 1131 (1997), syllabus. A “Motion to Correct or

Vacate Sentence, despite its caption, meets the definition of a motion for

post-conviction relief set forth in R.C. 2953.21(A)(1), because it is a motion

that was (1) filed subsequent to [defendant's] direct appeal, (2) claimed a

denial of constitutional rights, (3) sought to render the judgment void, and

(4) asked for vacation of the judgment and sentence.” Id., at 160.

      {¶8} “[P]ost-conviction relief petitions are used to assert claims that

there was a denial or infringement of the person's rights as to render the

judgment void or voidable under the Ohio or United States Constitutions.”

State v. Kelly, 4th Dist. Scioto No. 14CA3637, 2014–Ohio–5840, ¶ 4. “It is
Adams App. No. 18CA1064                                                            6

a means to resolve constitutional claims that cannot be addressed on direct

appeal because the evidence supporting the claims is not contained in the

record.” Id., at ¶ 5; citing State v. Shaffer, 4th Dist. Lawrence No. 14CA15,

2014–Ohio–4976, ¶ 9; State v. Knauff, 4th Dist. Adams No. 13CA976,

2014–Ohio–308, ¶ 18.

      {¶9} A trial court's decision to grant or deny a R.C. 2953.21 petition

for post-conviction relief should be upheld absent an abuse of discretion.

State v. Bennett, 4th Dist. Scioto No. 15CA3682, 2015–Ohio–3832, ¶ 9;

State v. Gondor, 112 Ohio St.3d 377, 2006–Ohio–6679, 860 N.E.2d 77, ¶

58. An “abuse of discretion” is more than an error of law or judgment; it

implies that the trial court's attitude was unreasonable, arbitrary or

unconscionable. State v. Herring, 94 Ohio St.3d 246, 255, 762 N.E.2d 940

(2002); State v. Adams, 60 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). In

reviewing for an abuse of discretion, appellate courts must not substitute

their judgment for that of the trial court. Bennett, supra; citing State ex rel.

Duncan v. Chippewa Twp. Trustees, 73 Ohio St.3d 728, 732, 654 N.E.2d

1254 (1995); In re Jane Doe 1, 57 Ohio St.3d 135, 137–138, 566 N.E.2d

1181 (1991).

      {¶10} Here, Appellant's “Motion to Correct Sentence” included a

constitutional claim alleging ineffective assistance of counsel and therefore
Adams App. No. 18CA1064                                                            7

the motion met the definition of a petition for post-conviction relief pursuant

to R.C. 2953.21. Further, Appellant filed the “Motion to Correct Sentence”

after expiration of the time for filing a direct appeal. Finally, Appellant's

motion seemed to suggest that his sentence was void as a result of the

alleged errors and he asked for the sentence to be corrected, which would

have involved vacating the original sentence.

      {¶11} However, there are limitations with regard to the filing of a

post-conviction relief petition, as well as strict filing requirements. In

particular, R.C. 2953.21(A)(2) provides that the time for filing a petition for

post-conviction relief is either 1) 365 days from the date on which the trial

transcript was filed in the court of appeals in the direct appeal of the

judgment of conviction; or 2) 365 days after the expiration of the time for

filing the notice of appeal, if no direct appeal is taken. R.C. 2953.21(A)(2).

Further, if a defendant fails to file his petition within the prescribed period,

the trial court may entertain the petition only if: (1) the petitioner shows

either that he was unavoidably prevented from discovery of the facts upon

which he must rely to present the claim for relief or that the United States

Supreme Court recognized a new federal or state right that applies

retroactively to him; and (2) the petitioner shows by clear and convincing

evidence that no reasonable factfinder would have found him guilty but for
Adams App. No. 18CA1064                                                           8

constitutional error at trial. R.C. 2953.23(A)(1); see also State v.

McManaway, 4th Dist. Hocking No. 16CA8, 2016–Ohio–7470, ¶¶ 13–16

(trial court lacks jurisdiction to entertain an untimely petition for post-

conviction relief unless the untimeliness is excused by statute).

      {¶12} Here, Appellant's “Motion to Correct Sentence” was clearly

filed outside of the 365 days after the expiration of the time for filing the

notice of appeal and therefore constitutes an untimely petition for post-

conviction relief. Further, Appellant did not argue the applicability of either

exception set forth in R.C. 2953.23(A). As such, we do not apply an abuse

of discretion standard of review to this argument and instead conclude that

the trial court lacked jurisdiction to entertain the motion. Thus, the trial court

technically erred by denying this claim, and instead should have dismissed

the motion, for lack of jurisdiction, with respect to this constitutional claim

which was untimely filed. Nonetheless, the outcome remains the same,

which is that Appellant's claim fails. Accordingly, Appellant's first

assignment of error is overruled. However, in light of our finding that the

trial court lacked jurisdiction to consider this constitutional claim, under the

authority of App.R. 12(A)(1)(a), and in accordance with our disposition of

State v. Brown, supra, at ¶ 38, we hereby modify the judgment appealed to
Adams App. No. 18CA1064                                                           9

reflect dismissal of Appellant's constitutional claim, rather than denial of the

claim.

                         ASSIGNMENT OF ERROR II

         {¶13} The arguments raised in Appellant's second assignment of error

are opaque. First, he seems to argue that his actions which formed the basis

of the rape charge below were "amoral" and "questionable," but not "illegal

under Ohio law." Appellant further describes his seven-year prison sentence

as "perverse," claims there was a "mandatory provision" added to his

sentence that was not agreed to (but does not explain what that provision

was), and also simply states "the substantial compliance standard mandated

by Criminal Rule 11 was ignored." Additionally, Appellant asserts that the

sentencing court "did not hold the appropriate hearing before imposing

financial sanctions[,]" that the trial court failed to consider his present and

future ability to pay either a financial sanction or a fine, and that the trial

court failed to notify him of the possibility of community service in lieu of

payment, as provided in R.C. 2947.23. Finally, he claims the trial court

failed to notify him of his constitutional right of appeal.

         {¶14} We initially note that Appellant failed to provide this Court

with copies of the plea and sentencing hearing transcripts. “When portions

of the transcript necessary for resolution of assigned errors are omitted from
Adams App. No. 18CA1064                                                         10

the record, the reviewing court has nothing to pass upon and thus, as to those

assigned errors, the court has no choice but to presume the validity of the

lower court's proceedings, and affirm.” Knapp v. Edwards Laboratories, 61

Ohio St.2d 197, 199, 400 N.E.2d 384 (1980). Moreover, “[t]he duty to

provide a transcript for appellate review falls upon the appellant. This is

necessarily so because an appellant bears the burden of showing error by

reference to matters in the record.” Id. Thus, because Appellant's arguments

regarding the trial court's compliance with Crim.R. 11, the trial court's

consideration of his present and future ability to pay financial sanctions, and

the trial court's duty to advise him regarding the possible performance of

community service and right to appeal, all require review of the transcripts,

which are not part of the record, we presume the validity of the trial court's

proceedings and affirm.

      {¶15} We also note that some of the arguments raised under this

assignment of error were not contained in his "Motion to Correct Sentence,"

and thus, are being raised for the first time on appeal. In particular,

Appellant's underlying motion did not allege failure to comply with Crim.R.

11, that the trial court failed to hold a hearing or failed to properly consider

his present or future ability to pay financial sanctions, or that the trial court

failed to advise him of his constitutional right of appeal. As such, we will
Adams App. No. 18CA1064                                                          11

not address them for the first time on appeal. See generally State v.

Quarterman, 140 Ohio St.3d 464, 2014–Ohio–4034, 19 N.E.3d 900, ¶ 15. It

is well-settled law in Ohio that appellate courts will not consider as error

issues that are raised for the first time on appeal. Schade v. Carnegie Body

Co., 70 Ohio St.2d 207, 210, 436 N.E.2d 1001 (1982); see also Ohio

Performance, Inc. v. Nelson, 4th Dist. Scioto No. 94CA2226, 1995 WL

103634, (Mar. 7, 1995) (“It is axiomatic that a litigant's failure to raise an

issue in the trial court waives the litigant's right to raise that issue on appeal.

* * * Litigants must not be permitted to hold their arguments in reserve for

appeal, thus evading the trial court process.”).

       {¶16} Appellant's remaining claims are non-constitutional claims,

which seem to challenge both his conviction and sentence. Specifically,

Appellant appears to contend that his actions did not constitute the crime of

rape and that his seven-year prison sentence was excessive. Initially, we

note that the record indicates Appellant pleaded guilty to first-degree felony

rape as charged in the indictment. Again, the record before us does not

contain the plea or sentencing hearing transcripts and we must presume the

regularity of those proceedings. Further, the record indicates that Appellant

pleaded guilty in exchange for an agreed-upon seven year prison term.
Adams App. No. 18CA1064                                                         12

      {¶17} R.C. 2953.08(D)(1) states, “A sentence imposed upon a

defendant is not subject to review under this section if the sentence is

authorized by law, has been recommended jointly by the defendant and the

prosecution in the case, and is imposed by a sentencing judge.” “In other

words, a sentence that is ‘contrary to law’ is appealable by a defendant;

however, an agreed-upon sentence may not be if (1) both the defendant and

the state agree to the sentence, (2) the trial court imposes the agreed

sentence, and (3) the sentence is authorized by law. R.C. 2953.08(D)(1). If

all three conditions are met, the defendant may not appeal the sentence.”

State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶

16.

      {¶18} Moreover, a petitioner generally cannot raise, for purposes of

post-conviction relief, "an error that could have been raised on direct

appeal." State v. Hobbs, 4th Dist. Meigs No. 09CA1, 2009–Ohio–7065, ¶ 5.

"In other words, if a petitioner fails to bring an appeal as of right, he cannot

raise in a petition for postconviction relief those issues that should have been

raised in a direct appeal.” Id. (Citations omitted.) As explained in State v.

Szefcyk, 77 Ohio St.3d 93, 95, 671 N.E.2d 233 (1996):

      "Res judicata is applicable in all postconviction relief
      proceedings. * * * ' "[P]ublic policy dictates that there be an
      end of litigation; that those who have contested an issue shall be
      bound by the result of the contest, and that matters once tried
Adams App. No. 18CA1064                                                        13

      shall be considered forever settled as between the parties."
      [Citation omitted.] We have stressed that "[the] doctrine of res
      judicata is not a mere matter of practice or procedure inherited
      from a more technical time than ours. It is a rule of fundamental
      and substantial justice, 'of public policy and of private peace,'
      which should be cordially regarded and enforced by the courts.
      * * *" [Citation omitted.]' ” Citing Federated Dept. Stores, Inc.
      v. Moitie, 452 U.S. 394, 401, 101 S.Ct. 2424 (1981).

Here, Appellant failed to file a direct appeal. Because these non-

constitutional claims could have raised in a timely direct appeal but were

not, they are now barred by res judicata. State v. Brown, supra, at ¶ 35;

citing State v. Knowles, 10th Dist. Franklin No. 15AP–991, 2016–Ohio–

2859, ¶ 14. Accordingly, Appellant's second assignment of error is

overruled.

                                CONCLUSION

      {¶19} Based on the foregoing, we overrule both of Appellant's

assignments of error. Appellant's constitutional claim raised under his first

assignment of error is barred as it is an untimely petition for post conviction

relief. As a result, and as set forth above, the trial court lacked jurisdiction

to consider it and should have dismissed, rather than denied, the claim.

Accordingly, the judgment appealed is affirmed but modified, under the

authority of App.R. 12(A)(1)(a), to reflect the dismissal of Appellant's

constitutional claim. State v. Brown, supra, at ¶ 38. The judgment of the
Adams App. No. 18CA1064                                                     14

trial court shall remain intact with respect to Appellant's remaining meritless

claims.

                                              JUDGMENT AFFIRMED
                                              AS MODIFIED.
Adams App. No. 18CA1064                                                        15

                           JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED AS MODIFIED
and costs be assessed to Appellant.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Adams County Common Pleas Court to carry this judgment into
execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Hoover, P.J.: Concurs in Judgment and Opinion.
Abele, J.:    Concurs in Judgment Only.

                                        For the Court,

                                        BY: ___________________________
                                           Matthew W. McFarland, Judge

                          NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
