[Cite as State v. McManaway, 2016-Ohio-7470.]


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

STATE OF OHIO,                                  :   Case No. 16CA8

        Plaintiff-Appellee,                     :

v.                                              :   DECISION AND
                                                    JUDGMENT ENTRY
JAMES MCMANAWAY,                                :
                                                    RELEASED: 10/24/16
        Defendant-Appellant.                  :
                                          APPEARANCES:

Ryan Shepler, Kernen & Shepler, Logan, Ohio, for appellant.

Kyle Henderson, Hocking County Prosecuting Attorney, and William L. Archer, Jr.,
Hocking County Assistant Prosecuting Attorney, for appellee.
Harsha, J.

        {¶1}    James McManaway appeals the judgment denying his motion to correct

his sentence. However, his counsel advises us that he has reviewed the record and

can discern no meritorious claims for appeal. Counsel moved for leave to withdraw

under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and

McManaway filed a pro se brief. After independently reviewing the record and

considering McManaway’s arguments, we agree with counsel’s assessment. We

conclude that to the extent McManaway’s motion raised constitutional issues, it should

have been considered to be a time-barred petition for postconviction relief that the trial

court lacked jurisdiction to consider. And to the extent his motion raised

nonconstitutional issues, res judicata barred it. Therefore, we find that this appeal is

wholly frivolous and grant the motion for leave to withdraw. And we affirm the judgment

of the trial court as modified to reflect the dismissal of McManaway’s motion insofar as it

could be construed to be a petition for postconviction relief.
Hocking App. No. 16CA8                                                              2


                                         I. FACTS

       {¶2}   The Hocking County Grand Jury returned an indictment charging

McManaway with 38 counts relating to the possession and distribution of child

pornography. After the Hocking County Court of Common Pleas denied McManaway’s

motion to suppress, in return for the dismissal of the remaining charges, he pleaded

guilty to two counts of disseminating matter harmful to juveniles with forfeiture

specifications and four counts of pandering obscenity involving a minor with forfeiture

specifications. He was represented by counsel during these proceedings. In May 2014,

the trial court sentenced McManaway to an aggregate prison term of eight years,

classified him as a Tier II sex offender, and ordered him to pay court costs.

       {¶3}   McManaway failed to timely appeal his convictions and sentence.

Instead, nearly two years after he was sentenced, in March 2016, he filed a “motion to

correct sentence” and a memorandum in support. He argued that the trial court erred in

sentencing him to maximum consecutive sentences, failing to consider his ability to pay

court costs, and failing to merge his sentences. He claimed that his constitutional and

statutory rights were violated and that he was denied the effective assistance of

counsel. The trial court met with McManaway’s trial counsel and the prosecuting

attorney and reviewed the videotape of the sentencing hearing. The court denied the

motion on the merits after determining that consecutive sentences were warranted and

that the offenses did not merge as a matter of law.

                               II. MOTION TO WITHDRAW

                                  AND ANDERS BRIEF
Hocking App. No. 16CA8                                                                           3


        {¶4}    Although McManaway appealed the denial of his motion to correct

sentence and was appointed counsel to do so, his appellate counsel filed a motion for

leave to withdraw and an Anders brief. In State v. Lester, 4th Dist. Vinton No.

12CA689, 2013-Ohio-2485, ¶ 3, we discussed the pertinent Anders requirements:

        In Anders, the United States Supreme Court held that if counsel
        determines after a conscientious examination of the record that the case is
        wholly frivolous, counsel should so advise the court and request
        permission to withdraw. Counsel must accompany the request with a brief
        identifying anything in the record that could arguably support the appeal.
        Anders at 744. The client should be furnished with a copy of the brief and
        given time to raise any matters the client chooses. Id. Once these
        requirements are met, we must fully examine the proceedings below to
        determine if an arguably meritorious issue exists. Id. If so, we must
        appoint new counsel and decide the merits of the appeal. Id. If we find
        the appeal frivolous, we may grant the request to withdraw and dismiss
        the appeal without violating federal constitutional requirements or may
        proceed to a decision on the merits if state law so requires. Id.

        {¶5}    McManaway’s counsel complied with these requirements by filing a

motion for leave to withdraw and furnishing McManaway with a copy of the brief in

sufficient time for McManaway to file an additional pro se brief.1

                                 III. ASSIGNMENTS OF ERROR

        {¶6}    In McManaway’s counsel’s brief, he assigns the following potential error:

        THE COURT ERRED IN DENYING HIS MOTION TO CORRECT
        SENTENCE.

        {¶7}    In his pro se brief, McManaway assigns the following errors:

        I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN
        SENTENCING APPELLANT TO AMBIGUOUS TERMS.

        II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN FAILING
        TO MERGE APPELLANT’S SENTENCE.

1 McManaway’s appellate counsel also attempted to file a motion for delayed appeal from the May 2014
conviction and sentence to raise the claims raised in the pro se motion to correct sentence, but we denied
that motion because he cited no basis for the nearly two-year delay for the appeal. State v. McManaway,
4th Dist. Hocking No. 16CA10 (May 11, 2016).
Hocking App. No. 16CA8                                                                4



       III. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN FAILING
       TO IMPOSE A CONCURRENT SENTENCE.

       IV. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN
       IMPOSING FINANCIAL SANCTIONS.

       V. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF
       COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT.

                                 IV. LAW AND ANALYSIS

       {¶8}   McManaway’s assignments of error collectively challenge the trial court’s

denial of his postconviction motion to correct his sentence.

       {¶9}   “ ‘Courts may recast irregular motions into whatever category necessary to

identify and establish the criteria by which the motion should be judged.’ ” 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. In State v. Reynolds, 79

Ohio St.3d 158, 160, 773 N.E.2d 1131 (1997), the Supreme Court of Ohio held that a

motion styled as a “Motion to Correct or Vacate Sentence” met the definition of a

petition for postconviction relief pursuant to R.C. 2953.21(A)(1) because it was “(1) filed

subsequent to [the 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.” See also Schlee at ¶ 12.

       {¶10} Similarly, McManaway’s motion met the definition of a petition for

postconviction relief for his constitutional claims because it was filed after the time for

his direct appeal expired, claimed in part a denial of his constitutional rights, sought to

render the judgment void, and asked for vacation of his conviction and sentence.

Therefore, McManaway’s postconviction motion is properly considered a petition for
Hocking App. No. 16CA8                                                                  5

postconviction relief insofar as it raised constitutional claims. Reynolds at 160; Schlee

at ¶ 12; see also State v. Waulk, 4th Dist. Ross No. 15CA3501, 2016-Ohio-5018, ¶ 6-7.

       {¶11} Effective March 23, 2015, R.C. 2953.21(A)(2) was amended to extend the

period to file postconviction relief petitions from 180 days to 365 days following the

expiration of the time for filing the appeal. See State v. Heid, 4th Dist. Scioto No.

14CA3655, 2015-Ohio-1467, fn. 1. Courts that have addressed the issue have

determined that the date of the triggering event is the filing of the postconviction petition,

which determines the applicable version of the statute. State v. Thomas, 8th Dist.

Cuyahoga No. 103784, 2016-Ohio-3327, ¶ 9, citing State v. Worthington, 12th Dist.

Brown No. CA2014-12-022, 2015-Ohio-3173, ¶ 43, fn. 4. Based on this precedent, the

365-day period in the amended version of R.C. 2953.21(A)(2) would be applicable

because McManaway filed his postconviction motion in March 2016. Under either

version of the statute, McManaway’s motion to correct sentence was untimely because

it was filed about 22 months after the deadline to appeal his May 2014 sentence had

expired. See State v. Jennison, 5th Dist. Coshocton No. 2015-CA-0003, 2015-Ohio-

3204, ¶ 8 (determining that a postconviction motion was untimely under either version of

the statute).

       {¶12} R.C. 2953.23(A)(1) authorizes a trial court to address the merits of an

untimely filed petition for postconviction relief 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
Hocking App. No. 16CA8                                                                 6

but for constitutional error at trial. See State v. McDougald, 4th Dist. Scioto No.

16CA3736, 2016-Ohio-5080, ¶ 23.

       {¶13} McManaway does not contend that the United States Supreme Court

recognized a new right that applied retroactively to him, so he had to prove that he was

unavoidably prevented from the discovery of the facts upon which he relied to present

his claims. McDougald at ¶ 24. “ ‘A defendant is ‘unavoidably prevented’ from the

discovery of facts if he had no knowledge of the existence of those facts and could not

have, in the exercise of reasonable diligence, learned of their existence within the time

specified for filing his petition for postconviction relief.’ ” Id. quoting State v.

Cunningham, 3d Dist. Allen No. 1-15-61, 2016-Ohio-3106, ¶ 19.

       {¶14} In his motion McManaway did not cite any new evidence that he had been

unavoidably prevented from discovering before the period to file a timely petition for

postconviction relief had elapsed. “Moreover, ‘[t]he fact that appellant raises claims of

ineffective assistance of counsel suggests that the bases for his claims could have been

uncovered if “reasonable diligence” had been exercised.’ ” Cunningham, 2016-Ohio-

3106, at ¶ 22, quoting State v. Creech, 4th Dist. Scioto No. 12CA3500, 2013-Ohio-

3791, ¶ 18; McDougald, 2016-Ohio-5080, at ¶ 25.

       {¶15} Therefore, McManaway failed to establish that the trial court possessed

the authority to address the merits of his untimely petition for postconviction relief for his

constitutional claims.

       {¶16} Nevertheless, because McManaway’s motion constituted an untimely filed

petition for postconviction relief, the trial court technically erred in denying the motion on

the merits because it lacked jurisdiction to do so. See, e.g., State v. Burkes, 4th Dist.
Hocking App. No. 16CA8                                                             7


Scioto No. 13CA3582, 2014-Ohio-3311, ¶ 18. But because this error did not ultimately

prejudice McManaway for his constitutional claims—he still would not have prevailed on

them because he failed to timely assert them—it does not make his appeal meritorious.

       {¶17} Moreover, to the extent that McManaway’s motion raised nonconstitutional

claims, res judicata barred him from raising these claims because he could have raised

them in a timely direct appeal. See, e.g., State v. Wofford, 5th Dist. Stark No.

2016CA800087, 2016-Ohio-4628, ¶ 21 (res judicata barred defendant’s claim in a

postconviction motion that the sentencing court erred in imposing consecutive

sentences); State v. Knowles, 10th Dist. Franklin No. 15AP-991, 2016-Ohio-2859, ¶ 14

(res judicata barred claims in postconviction motion challenging failure to merge allied

offenses and imposition of consecutive sentences); State v. Evearitt, 6th Dist. Lucas No.

L-14-1010, 2014-Ohio-1995, ¶ 11, citing State v. Slocum, 6th Dist. Wood No. WD–10–

069, 2011-Ohio-2442, ¶ 10 (res judicata barred defendant from contesting imposition of

court costs in postconviction motion when he could have raised the issue in a timely

appeal).

       {¶18} Therefore, we overrule McManaway’s assignments of errors because they

have no arguable merit. In addition, upon independently reviewing the record, we can

discern no arguably meritorious issue.

                                    V. CONCLUSION


       {¶19} We agree with McManaway’s counsel that the assignments of error and

appeal are meritless and grant counsel’s motion to withdraw. The trial court correctly

denied his motion to correct sentence insofar as he raised nonconstitutional claims

because they were barred by res judicata. And insofar as his motion raised
Hocking App. No. 16CA8                                                                 8


constitutional claims, it constituted a time-barred petition for postconviction relief that the

trial court lacked jurisdiction to consider. Upon authority of App.R. 12(A)(1)(a), we

modify the judgment appealed to reflect the dismissal of the petition/motion for these

constitutional claims, and we affirm the judgment of the trial court as modified. See

generally State v. Brewer, 2d Dist. Montgomery No. 24910, 2012-Ohio-5406, ¶ 10;

State v. Griffin, 1st Dist. Hamilton Nos. C-150258 and 150005, 2016-Ohio-782, ¶ 13.

                                                                    JUDGMENT AFFIRMED

                                                                              AS MODIFIED.
Hocking App. No. 16CA8                                                                 9


                                    JUDGMENT ENTRY

      It is ordered that the JUDGMENT IS AFFIRMED AS MODIFIED and that
Appellant shall pay the costs.

       The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Hocking
County Court of Common Pleas 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.

McFarland, J. & Hoover, J.: Concur in Judgement and Opinion.

                                            For the Court


                                            BY: ________________________
                                                William H. Harsha, 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.
