[Cite as State v. Sparks, 2014-Ohio-5017.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                         C.A. No.       27292

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
BRYAN S. SPARKS                                       COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 02 12 3669

                                 DECISION AND JOURNAL ENTRY

Dated: November 12, 2014



        HENSAL, Judge.

        {¶1}     Bryan Sparks appeals a judgment of the Summit County Court of Common Pleas

that denied his motion to correct sentence. For the following reasons, this Court affirms.

                                                 I.

        {¶2}     Following a trial to the bench in 2004, the trial court found Mr. Sparks guilty of

two counts of rape, two counts of corruption of a minor, and one count of illegal use or

possession of drug paraphernalia. It sentenced him to life in prison and adjudicated him a sexual

predator under Revised Code Section 2950.09. This Court upheld his convictions on appeal, but

remanded for resentencing on one of the rape counts. The trial court resentenced him on that

count in June 2005.

        {¶3}     In January 2010, Mr. Sparks petitioned for post-conviction relief. In its brief

opposing the petition, the State pointed out that the trial court had incorrectly imposed post-

release control when it sentenced Mr. Sparks. It argued that his sentence, therefore, was void,
                                                  2


which made his petition premature. In March 2010, the trial court resentenced Mr. Sparks,

correcting the post-release control error and imposing the same prison terms as before. It also

classified him as a Tier III sex offender under the Adam Walsh Act. On appeal, this Court

affirmed in part and reversed in part, explaining that, under State v. Fischer, 128 Ohio St.3d 92,

2010-Ohio-6238, the trial court did not have authority to assign Mr. Sparks a sex offender

classification. On remand, the trial court corrected its entry.

        {¶4}    In October 2011, Mr. Sparks petitioned for post-conviction relief, arguing that his

trial counsel was ineffective. The trial court denied his petition as untimely. Mr. Sparks moved

for reconsideration, but the trial court denied his motion. Mr. Sparks did not appeal either of the

trial court’s decisions.

        {¶5}    In February 2014, Mr. Sparks moved the trial court to correct his sentence, raising

multiple issues. The trial court denied his motion without a hearing. Mr. Sparks has appealed,

assigning six errors, which this Court will address together.

                                                 II.

                                   ASSIGNMENT OF ERROR I

        THE TRIAL COURT ERRED WHEN IT FAILED TO STATE FINDINGS OF
        FACTS AND CONCLUSIONS OF LAW VIOLATING APPELLANT’S SIXTH
        AMENDMENT TO THE UNITED STATES CONSTITUTION.

                                  ASSIGNMENT OF ERROR II

        THE TRIAL COURT ERRED WHEN IT FAILED TO HOLD AN
        EVIDENTIARY HEARING BEFORE DENYING APPELLANT’S MOTION
        VIOLATING HIS DUE PROCESS RIGHTS IN ACCORDANCE TO THE
        SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

                                  ASSIGNMENT OF ERROR III

        THE TRIAL COURT ERRED WHEN IT PLACED THE APPELLANT WITHIN
        THE GUIDELINES OF THE DOUBLE JEOPARDY CLAUSE IN VIOLATION
        OF THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
                                                  3



                                  ASSIGNMENT OF ERROR IV

       THE TRIAL COURT ERRED WHEN IT PROSECUTED, TRIED AND
       CONVICTED APPELLANT OF A CRIME WHERE THE STATUTE OF
       LIMITATIONS HAD EXPIRED IN VIOLATION OF HIS SIXTH
       AMENDMENT OF THE UNITED STATES CONSITUTION.

                                  ASSIGNMENT OF ERROR V

       THE TRIAL COURT ERRED WHEN IT REFUSED THE APPELLANT’S
       REQUEST TO FIRE HIS APPOINTED COUNSEL DURING TRIAL
       DENYING HIM DUE PROCESS IN VIOLATION OF HIS SIXTH AND
       FOURTEENTH    AMENDMENTS   TO   THE   UNITED    STATES
       CONSTITUTION.

                                  ASSIGNMENT OF ERROR VI

       THE TRIAL COURT ERRED WHEN IT CONVICTED APPELLANT OF
       RAPE AND CORRUPTION OF A MINOR THAT WAS BASED TOTALLY
       ON PERJURED, HEARSAY TESTIMONY IN VIOLATION OF HIS SIXTH
       AMENDMENT OF THE UNITED STATES CONSTITUTION.

       {¶6}    Mr. Sparks argues that the trial court incorrectly denied his motion to correct

sentence. He also argues that the court should have held a hearing on his motion and made

specific findings of fact and conclusions of law in its journal entry.

       {¶7}    In his motion to correct sentence, Mr. Sparks argued that the trial court violated

his right to due process by not issuing a final appealable order. He argued that the court violated

his rights under the Fifth Amendment by imposing post-release control. He also argued that the

court imposed cruel and unusual punishment by adjudicating him a sexual predator, that it

incorrectly resentenced him for crimes for which he had already completed his prison term, and

that it unconstitutionally applied certain laws retroactively. He further argued that the court did

not have jurisdiction to try him on one of the rape offenses because the State failed to charge him

before the statute of limitations expired.
                                                  4


       {¶8}    According to the Ohio Supreme Court, “[if] 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 (1997),

syllabus. But see State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, ¶ 10-11 (distinguishing

postsentence motions under Criminal Rule 32.1). Mr. Sparks has also admitted in his appellate

brief that his motion to correct sentence was a petition for post-conviction relief. This Court

notes that Mr. Sparks previously petitioned for post-conviction relief in 2011. The trial court

denied the petition, and Mr. Sparks did not appeal its decision.

       {¶9}    Revised Code Section 2953.23(A) provides that a trial “court may not entertain *

* * a second petition * * * for [post-conviction] relief” unless “the petitioner was unavoidably

prevented from discovery of the facts upon which [he] must rely to present 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 * * * ” and (2) there is clear and convincing

evidence that, but for the constitutional error at trial, no reasonable trier of fact would have found

the petitioner guilty of the offense. In his motion to correct sentence, Mr. Sparks did not allege,

let alone establish, that he was unavoidably prevented from discovering the facts upon which he

relied. Accordingly, the trial court had to treat the motion as a successive petition for post-

conviction relief, and it correctly determined that it did not have authority to grant the motion.

Id.; State v. Caldwell, 9th Dist. Summit No. 27003, 2014-Ohio-1032, ¶ 13. We, therefore,

conclude that the court did not err when it denied Mr. Sparks’s motion. Mr. Sparks’s third,

fourth, fifth, and sixth assignments of error are overruled.
                                                 5


       {¶10} Regarding Mr. Sparks’s arguments that the trial court incorrectly denied his

motion to correct sentence without issuing specific findings of fact and conclusions of law or

holding a hearing, the Ohio Supreme Court has held that a trial court “has no duty to issue

findings of fact and conclusions of law on successive or untimely petitions for postconviction

relief.” State ex rel. George v. Burnside, 118 Ohio St.3d 406, 2008-Ohio-2702, ¶ 6. The court

also had no obligation to hold a hearing on the motion. State v. Price, 9th Dist. Wayne No.

03CA0046, 2004-Ohio-961, ¶ 10.         Mr. Sparks’s first and second assignments of error are

overruled.

                                                III.

       {¶11} The trial court correctly determined that it did not have authority to grant Mr.

Sparks’s motion to correct sentence. The judgment of the Summit County Court of Common

Pleas is affirmed.

                                                                             Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
                                                6


instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                    JENNIFER HENSAL
                                                    FOR THE COURT



BELFANCE, P. J.
MOORE, J.
CONCUR.


APPEARANCES:

BRYAN SPARKS, pro se, Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
