[Cite as State v. Braunskill, 2018-Ohio-3738.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                           CLERMONT COUNTY




STATE OF OHIO,                                    :

        Plaintiff-Appellee,                       :     CASE NO. CA2018-03-006

                                                  :             OPINION
    - vs -                                                       9/17/2018
                                                  :

RALPHIELL BRAUNSKILL,                             :

        Defendant-Appellant.                      :



    CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                         Case No. 2016CR000446



D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas A. Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee

Ralphiell Braunskill, #A729859, Chillicothe Correctional Institution, P.O. Box 5500,
Chillicothe, Ohio 45601, defendant-appellant, pro se



        PIPER, J.

        {¶ 1} Defendant-appellant, Ralphiell Braunskill, appeals a decision of the Clermont

County Court of Common Pleas denying his motion for resentencing.

        {¶ 2} Braunskill was indicted on multiple counts of drug trafficking, and eventually

pled guilty to three counts. The trial court sentenced Braunskill to an aggregate sentence of

four years. Braunskill did not appeal his sentence, but later, filed a motion to withdraw his
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guilty plea. The trial court denied Braunskill's motion, and he did not appeal that decision.

Subsequently, Braunskill filed a motion to vacate judgment, which was also denied by the

trial court. Braunskill did not appeal the trial court's decision

         {¶ 3} Most recently, Braunskill filed a motion for resentencing, which the trial court

denied. Braunskill now appeals the trial court's decision, raising the following assignments of

error.

         {¶ 4} Assignment of Error No. 1:

         {¶ 5} THE TRIAL COURT ERRED WHEN THE JUDGE VIOLATED THE CODE OF

JUDICIAL CONDUCT.

         {¶ 6} Braunskill argues in his first assignment of error that the trial court violated the

code of judicial conduct by not maintaining impartiality. In support of his argument, Braunskill

cites to the Code of Judicial Conduct, Cannon 1-1.2, which discusses the independence,

integrity, and impartiality of the judiciary.

         {¶ 7} This court lacks jurisdiction to consider allegations of judicial misconduct

instituted pursuant to the Code of Judicial Conduct, as those matters are properly brought

before the Disciplinary Counsel. State v. Coomer, 12th Dist. Clinton Nos. CA2009-09-016

and CA2009-09-017, 2010-Ohio-3474, ¶ 17. As such, Braunskill's first assignment of error is

overruled.

         {¶ 8} For ease of discussion, we will address Braunskill's final three assignments of

error together, as they are interrelated.

         {¶ 9} Assignment of Error No. 2:

         {¶ 10} THE TRIAL COURT ERRORED [SIC] IN CONCLUDING THAT A DISMISSAL

WITHOUT PREJUDICE, PURSUANT TO CRIMINAL RULE (A), IS NOT A FINAL

DETERMINATION OF A DEFENDANT'S RIGHT.

         {¶ 11} Assignment of Error No. 3:
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       {¶ 12} THE TRIAL COURT ERRORED [SIC] WHEN RESUMING A CASE THAT

WAS RESOLVED.

       {¶ 13} Assignment of Error No. 4:

       {¶ 14} THE TRIAL COURT ERRORED [SIC] WHEN DISMISSING CASE NUMBER

(0007 CR 2016), WITHOUT COMPLYING WITH THE STATUTORY REQUIREMENTS.

       {¶ 15} In his final three assignments of error, Braunskill essentially argues that the

trial court erred in denying his motion for resentencing.

       {¶ 16} The law in Ohio is well-established that "[c]ourts may recast irregular motions

into whatever category necessary to identify and establish the criteria by which the motion

should be judged." State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, ¶ 12. This includes

motions to vacate or correct a sentence. State v. Rarden, 12th Dist. Butler No. CA2013-07-

125, 2014-Ohio-564, ¶ 8. Therefore, where a defendant, subsequent to his or her direct

appeal, files a motion seeking to vacate or correct his or her sentence on the basis that his or

her constitutional rights have been violated, the motion is a petition for postconviction relief

as defined in R.C. 2953.21. State v. Watkins, 12th Dist. Butler No. CA2017-05-066, 2018-

Ohio-45.

       {¶ 17} Braunskill's motion claimed a denial of his constitutional rights specific to

double jeopardy and asked the court to recognize the judgment as void. The motion also

requested the trial court dismiss the charges that Braunskill claimed were pending against

him. Braunskill's motion, therefore, clearly meets all of the necessary criteria for the trial

court to properly recast it as a petition for postconviction relief. State v. Wilkins, 12th Dist.

Clinton No. CA2013-05-012, 2013-Ohio-5372, ¶ 10.

       {¶ 18} The mere filing of a motion, properly recast as a petition for postconviction

relief, does not automatically require the trial court to hold an evidentiary hearing. State v.

Suarez, 12th Dist. Warren No. CA2014-02-035, 2015-Ohio-64, ¶ 10. Instead, the trial court
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properly denies a petition for postconviction relief without holding an evidentiary hearing

where the "petition, the supporting affidavits, the documentary evidence, the files, and the

records do not demonstrate that petitioner set forth sufficient operative facts to establish

substantive grounds for relief." State v. Calhoun, 86 Ohio St. 3d 279 (1999), paragraph two

of the syllabus.

       {¶ 19} The record in the case sub judice lacks any support for Braunskill's claims that

he was entitled to resentencing or that his conviction was void. Moreover, we find that

Braunskill's properly-recast petition for postconviction relief was untimely and otherwise

barred by the doctrine of res judicata.

       {¶ 20} According to R.C. 2953.21(A)(2), petitions for postconviction relief must be

filed no later than 365 days after the date on which the trial transcript is filed with the court of

appeals in the direct appeal, or, if a direct appeal was not pursued, 365 days after the

expiration of the time in which a direct appeal could have been filed.

       {¶ 21} Braunskill waited to file his petition until January 4, 2018, which is outside the

deadline prescribed by R.C. 2953.21(A)(2) given that he was sentenced in October 2016.

Although untimely, R.C. 2953.23(A)(1)(a) permits a trial court to entertain an untimely petition

so long as the petitioner demonstrates either that (1) he or she was unavoidably prevented

from discovering the facts necessary for the claim for relief or (2) the United States Supreme

Court has recognized a new federal or state right that applies retroactively to persons in the

petitioner's situation and the petitioner asserts a claim based on that right. State v. Tringelof,

12th Dist. Clermont Nos. CA2017-03-015 and CA2017-03-016, 2017-Ohio-7657. If the

petitioner is able to satisfy one of these threshold conditions, he or she must then

demonstrate by clear and convincing evidence that, but for the constitutional error, no

reasonable fact-finder would have found him or her guilty of the offense for which he or she

was convicted. R.C. 2953.23(A)(1)(b).
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        {¶ 22} Braunskill has failed to demonstrate either that he was unavoidably prevented

from discovering his claim for relief or that his claim arises out of a newly recognized federal

or state right, as contemplated by R.C. 2953.23(A)(1)(a). Rather, Braunskill claims that his

convictions are void and he has been subjected to double jeopardy based on the way in

which he was indicted and later convicted. The facts upon which Braunskill bases his

arguments were known to him on the day he entered his guilty pleas and was sentenced. As

such, these details do not present newly-discovered evidence. Nor have any federal or state

rights become available to Braunskill that would merit consideration of his untimely petition.

Instead, Braunskill could have and should have raised his arguments on direct appeal.

        {¶ 23} The doctrine of res judicata provides that 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 that judgment, any defense or any claimed lack of due

process that was raised or could have been raised by the defendant at the trial or on appeal

from the judgment. State v. Wagers, 12th Dist. Preble No. CA2011-08-007, 2012-Ohio-2258,

¶ 10.

        {¶ 24} Braunskill, who was represented at the time he pled guilty and was sentenced,

could have raised his double jeopardy claim by filing a direct appeal. He did not. Therefore,

his claims are barred by res judicata and the trial court was proper in denying the petition.

State v. Gann, 12th Dist. Butler No. CA2004-01-028, 2005-Ohio-678, ¶ 12 (res judicata

barred appellant's double jeopardy argument).

        {¶ 25} Finding no error in the trial court's decision to deny Braunskill's untimely

petition for postconviction relief, his final three assignments of error are overruled.

        {¶ 26} Judgment affirmed.


        RINGLAND, P.J., and M. POWELL, J., concur.


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