[Cite as State v. Curtis, 2015-Ohio-3404.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             BROWN COUNTY




STATE OF OHIO,                                    :

        Plaintiff-Appellee,                       :     CASE NO. CA2015-02-007

                                                  :             OPINION
    - vs -                                                       8/24/2015
                                                  :

RICHARD CURTIS,                                   :

        Defendant-Appellant.                      :



       CRIMINAL APPEAL FROM BROWN COUNTY COURT OF COMMON PLEAS
                           Case No. 2009 CR-2041



Jessica A. Little, Brown County Prosecuting Attorney, Mary McMullen, 510 East State Street,
Suite 2, Georgetown, Ohio 45121, for plaintiff-appellee

Richard Curtis, #A615995, Marion Correctional Institution, P.O. Box 57, Marion, Ohio 43302,
defendant-appellant, pro se



        PIPER, P.J.

        {¶ 1} Defendant-appellant, Richard Curtis, appeals from the decision of the Brown

County Court of Common Pleas denying his petition for postconviction relief. For the reasons

discussed below, we affirm as modified and remand this matter for correction of the

sentencing entry.

        {¶ 2} In 1996, appellant murdered his wife, Linda Curtis. Following a jury trial,
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appellant was convicted of aggravated murder and murder. The trial court then imposed a

term of life imprisonment with parole eligibility after 20 years for the aggravated murder

charge and a term of 15-years-to-life on the murder charge.1 The trial court then merged the

murder charge with the aggravated murder charge for purposes of sentencing. Appellant

filed a direct appeal challenging his conviction as not being supported by a sufficiency of the

evidence, and otherwise against the manifest weight of the evidence. This court affirmed the

trial court's decision in State v. Curtis, 12th Dist. Brown No. CA2009-10-037, 2010-Ohio-

4945, appeal not accepted for review, 2011-Ohio-3244.

        {¶ 3} Since his conviction and sentence, appellant has moved the trial court multiple

times for postconviction relief. The matter currently before this court involves another motion

for postconviction relief filed by appellant.2 The trial court denied appellant's most recent

petition for postconviction relief in an entry dated February 11, 2015. Appellant now appeals

the decision of the trial court, raising four assignments of error for review.

        {¶ 4} Before addressing appellant's assignments of error, we note that a

postconviction proceeding is not an appeal of a criminal conviction, but rather, a collateral

civil attack on a criminal judgment. State v. Snead, 12th Dist. Clermont No. CA2014-01-014,

2014-Ohio-2895, ¶ 16. Petitions for postconviction relief are governed under R.C. 2953.21,

which provides three methods for adjudicating the petition. Specifically, when a criminal

defendant challenges his conviction through postconviction relief, the trial court may: (1)

summarily dismiss the petition without holding an evidentiary hearing pursuant to R.C.

2953.21(C); (2) grant summary judgment on the petition to either party who moved for

summary judgment pursuant to R.C. 2953.21(D); or (3) hold an evidentiary hearing on the


1. The trial court also ordered appellant to serve a three-year consecutive term for a firearm specification on his
aggravated murder conviction.

2. The record reflects that appellant filed multiple motions for relief from January 2, 2015 through February 9,
2015, which the trial court considered in its judgment entry.
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issues raised by the petition pursuant to R.C. 2953.21(E). State v. Chamberlain, 12th Dist.

Brown No. CA2015-03-008, 2015-Ohio-2987, ¶ 5.

        {¶ 5} "In reviewing an appeal of postconviction relief proceedings, this court applies

an abuse of discretion standard." State v. Vore, 12th Dist. Warren Nos. CA2012-06-049 and

CA2012-10-106, 2013-Ohio-1490, ¶ 10. "The term 'abuse of discretion' connotes more than

an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or

unconscionable." Snead at ¶ 16. "[A] reviewing court will not overrule the trial court's finding

on a petition for postconviction relief where the finding is supported by competent and

credible evidence." State v. Blanda, 12th Dist. Butler No. CA2013-06-109, 2014-Ohio-2234,

¶ 17.

        {¶ 6} Furthermore, to the extent that a sentence is void, the offending portion of the

sentence is subject to review and correction at any time, whether in the direct appeal or in a

collateral proceeding. State v. Evans, 1st Dist. Hamilton No. C-140503, 2015-Ohio-3208, ¶

9, citing State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238. Pursuant to App.R. 12(A)(1),

this court has authority to "[r]eview and affirm, modify, or reverse the judgment or final order

appealed."

        {¶ 7} Assignment of Error No. 1:

        {¶ 8} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-

APPELLANT WHEN IT MERGED THE TWO ALLIED OFFENSES TOGETHER AND FAILED

TO STATE WHICH SENTENCE MR. CURTIS WAS SERVING HIS PRISON TIME FOR.

        {¶ 9} Assignment of Error No. 2:

        {¶ 10} TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT

WHEN IT IMPOSED MANDATORY PRC AT SENTENCE IN WHICH IT LACKED

JURISDICTION.

        {¶ 11} In his first two assignments of error, appellant alleges his prison sentence is
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"void" based on purported deficiencies in the trial court's sentencing entry. Appellant's

specific complaint relates to the merger of his offenses for aggravated murder and murder.

The trial court's sentencing entry stated, in pertinent part:

             The Court finds that [appellant] was found guilty on September 25,
             2009 of [aggravated murder] * * * with a firearm specification, and
             [murder] * * * with a firearm specification, subject to a mandatory
             prison term pursuant to Section 2929.03 of the Ohio Revised Code.

             It is therefore ordered that [appellant] serve a term on Count 1
             [aggravated murder] of life imprisonment with parole eligibility after
             serving twenty years of imprisonment. The court further orders that
             [appellant] serve a consecutive term of imprisonment for three
             years on Specification One, and on Count 2 [murder], an indefinite
             sentence of 15 years to life imprisonment. The court further orders
             that [appellant] serve a consecutive term of imprisonment for three
             years on Specification One, all of which are mandatory prison terms
             pursuant to Revised Code Section 2929.03(F).

             The sentence in Count 2 [murder] is merged with Count 1
             [aggravated murder] for purposes of sentencing.

             The Court further orders as to Count 2 [murder] that [appellant]
             shall be subject to 5 years mandatory post release control is
             mandatory in this case, as well as the consequences for violating
             conditions of post release control imposed by the Parole Board
             under Revised Code Section 2967.28. [Appellant] is ordered to
             serve as part of this sentence any term of post release control
             imposed by the Parole Board, and any prison term for violation of
             that post release control.

       {¶ 12} From this sentencing entry, appellant raises two assignments of error which will

be addressed in turn. Initially, however, we note that appellant has failed to file a transcript of

the sentencing hearing. Since appellant failed to file a transcript of the sentencing hearing,

we may presume the regularity of the proceedings and conclude the trial court determined

that appellant's aggravated murder charge and his murder charge constituted allied offenses

of similar import, merged those offenses, and the state elected to proceed with sentencing on

the aggravated murder charge. See, e.g., State v. Hopper, 12th Dist. Warren Nos CA2013-

04-039 and CA2013-05-041, 2013-Ohio-5091, ¶ 14 (appellant has a duty to provide a


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transcript for appellate review).

                                     A. Allied Offenses

       {¶ 13} In his first assignment of error, appellant alleges the trial court's sentencing

entry was ambiguous with respect to the merger of his offenses and was therefore in violation

of various state and federal laws. Essentially, while appellant acknowledges that the trial

court merged his offenses for aggravated murder and murder, he nevertheless contends "the

sentencing journal does not reflect which count [appellant] is serving his sentence on."

       {¶ 14} "R.C. 2941.25 codifies the protections of the Double Jeopardy Clause of the

Fifth Amendment to the United States Constitution and Section 10, Article I of the Ohio

Constitution, which prohibit multiple punishments for the same offense."             State v.

Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 23. Under R.C. 2941.25(A), when the

same conduct by the defendant "can be construed to constitute two or more allied offenses

of similar import, the indictment or information may contain counts for all such offenses, but

the defendant may be convicted of only one." See also State v. Whitfield, 124 Ohio St.3d

319, 2010-Ohio-2, ¶ 17 ("[a] defendant may be indicted and tried for allied offenses of similar

import, but may be sentenced on only one of the allied offenses"). For purposes of merger, a

"conviction" includes both the determination of guilt and the sentence or penalty. State v.

Damron, 129 Ohio St.3d 86, 2011-Ohio-2268, ¶ 17.

       {¶ 15} In the present case, appellant was found guilty of aggravated murder and

murder. The trial court sentenced appellant to a term of life imprisonment with parole

eligibility after 20 years on the aggravated murder charge and a 15-years-to-life indefinite

term on the murder charge. The trial court then ordered "[t]he sentence in Count 2 [murder]

is merged with Count 1 [aggravated murder] for purposes of sentencing."

       {¶ 16} After a thorough review of the record, we find appellant is merely attempting to

read an ambiguity into the trial court's sentencing entry where one simply does not exist.
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Contrary to appellant's suggestion, the trial court's sentencing entry specified that appellant's

murder charge merged with the aggravated murder charge for purposes of sentencing.

Appellant's sentence for aggravated murder is clearly within the permissible statutory range

for the offense and the sentence was imposed in accordance with law.

       {¶ 17} To that end, although the trial court included unnecessary reference to a

sentence applicable to a murder charge, the trial court never actually imposed a sentence for

that offense as a result of the merger. Therefore, the trial court imposed an appropriate

prison term of life imprisonment with parole eligibility after 20 years. That sentence is to be

served consecutively to the three-year prison term imposed for the firearm specification.

Accordingly, to the extent that appellant claims his sentence is "void" and he should be

provided a de novo sentencing hearing, we find appellant's argument to be without merit.

       {¶ 18} Nevertheless, in an abundance of caution, we recognize that the trial court

erred when it included reference to a sentence on the murder charge, which it subsequently

merged with the aggravated murder charge. In circumstances involving allied offenses, a trial

court must merge the crimes into a single conviction and impose a sentence that is

appropriate for the offense chosen for sentencing. State v. Brown, 119 Ohio St.3d 447,

2008-Ohio-4569, at ¶ 41-43. Here, while appellant's murder conviction was properly merged,

we find the unnecessary reference imposing sentence on appellant's murder charge should

be deleted from the entry.

       {¶ 19} R.C. 2953.08(G) provides that an appellate court may "increase, reduce or

otherwise modify a sentence * * * or may vacate the sentence and remand the matter to the

sentencing court for resentencing." State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-5238, ¶

29. Due to the facts before us, we find reference to the 15-years-to-life sentence relevant to

appellant's murder charge should be deleted from the sentencing entry and we hereby

modify the judgment entry to reflect the exclusion of that unnecessary reference.
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                          B. Imposition of Postrelease Control

       {¶ 20} In his second assignment of error, appellant alleges that his sentence is "void"

because the trial court improperly imposed a term of postrelease control. As previously

noted, appellant was sentenced to life imprisonment for aggravated murder and an indefinite

term of 15 years to life for murder, which was then merged. Thereafter, the trial court

included language in its sentencing entry that appellant was subject to five years of

mandatory post release control on the murder charge.

       {¶ 21} As appellant correctly points out, an individual sentenced for murder is not

subject to postrelease control because that crime is an unclassified position to which the

postrelease control statute does not apply. State v. Eberle, 12th Dist. Clermont No. CA2009-

10-065, 2010-Ohio-3563, ¶ 51; State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, ¶ 36.

"Instead of postrelease control, when an offender convicted of an unclassified felony is

released from prison he or she is subject to parole." State v. Lofton, 4th Dist. Pickaway No.

11CA16, 2012-Ohio-2274, ¶ 8; Clark at ¶ 36. Therefore, the trial court should not have

imposed postrelease control on appellant's murder conviction, as that offense is an

unclassified felony. State v. Silguero, 10th Dist. Franklin No. 11AP-274, 2011-Ohio-6293, ¶

8.

       {¶ 22} Although appellant desires the remedy of a new sentencing hearing, that

remedy is not appropriate in this case. Rather, in similar circumstances, courts have held

that a trial court may simply correct the sentencing entry by eliminating any reference to

postrelease control. Id.; State v. Opalach, 8th Dist. Cuyahoga No. 100938, 2014-Ohio-5037,

¶ 8. Consistent with our resolution of appellant's first assignment of error, pursuant to R.C.

2953.08(G), we hereby modify appellant's sentencing entry to delete reference to the

imposition of postrelease control. Accordingly, appellant's second assignment of error is

modified in that it shall no longer include reference to postrelease control. The trial court's
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decision is affirmed in all other respects.

       {¶ 23} In conclusion, based on our resolution of appellant's first and second

assignments of error, we hereby modify appellant's sentencing entry to delete reference to a

sentence for Count 2, murder in violation of R.C. 2903.02(A), and its accompanying

specification. This cause is remanded to the trial court with instructions to correct the

sentencing entry to reflect that modification.

       {¶ 24} Assignment of Error No. 3:

       {¶ 25} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-

APPELLANT WHEN IT FAILED TO CONSIDER FRAUD AND MISCONDUCT OF THE

PROSECUTOR.

       {¶ 26} Assignment of Error No. 4:

       {¶ 27} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-

APPELLANT WHEN IT DENIED HIS MOTION FOR ACQUITTAL BECAUSE THE

EVIDENCE AGAINST HIM WAS INSUFFICIENT TO SUPPORT A CONVICTION, THEREBY

DENYING HIS RIGHTS OF DUE PROCESS AND A FAIR TRIAL IN VIOLATION OF THE

FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION

AND SECTION 16, ARTICLE 1 OF OHIO CONSTITUTION [sic].

       {¶ 28} Similar to his first and second assignments of error, appellant's third and fourth

assignments of error will also be addressed together. In his third assignment of error,

appellant alleges the state withheld and falsified evidence, suborned perjury, and committed

various other acts of misconduct during his trial. In his fourth assignment of error, appellant

argues the trial court erred when it denied his motion for acquittal because the evidence

presented at trial was insufficient to support his conviction. However, after review, we find

appellant's assignments of error are without merit based on the doctrine of res judicata.

       {¶ 29} It is well-established that a trial court may dismiss a postconviction relief petition
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on the basis of the doctrine of res judicata. State v. Bayless, 12th Dist. Clinton Nos. CA2013-

10-020 and CA2013-10-021, 2014-Ohio-2475, ¶ 9. "Under the doctrine of 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 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, which resulted in that judgment of conviction, or on an appeal from that

judgment." State v. Blankenburg, 12th Dist. Butler No. CA2012-04-088, 2012-Ohio-6175, ¶

10.

       {¶ 30} As the trial court correctly found, appellant does not raise any "newly

discovered evidence" to support his allegations of "fraud and misconduct" by the state.

Instead, appellant's allegations are merely conclusory statements comprised of speculation

and innuendo that relate to the weight and credibility of the evidence presented during his

trial. Furthermore, appellant's argument that his conviction is not supported by the weight of

the evidence is an issue that was previously decided in his direct appeal. Curtis, 2010-Ohio-

4945 at ¶ 16. Accordingly, after review, we agree with the trial court that appellant's

arguments are barred by res judicata. Therefore, we find appellant's third and fourth

assignments of error are without merit and overruled.

       {¶ 31} Judgment affirmed as modified and cause remanded.


       S. POWELL and M. POWELL, JJ., concur.




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