[Cite as State v. Ward, 2017-Ohio-4411.]
                             IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                   :

                 Plaintiff-Appellee,             :            No. 16AP-774
                                                           (C.P.C. No. 97CR-270)
v.                                               :
                                                     (ACCELERATED CALENDAR)
Rex S. Ward,                                     :

                 Defendant-Appellant.            :




                                           D E C I S I O N

                                      Rendered on June 20, 2017


                 On brief: Ron O'Brien, Prosecuting               Attorney,   and
                 Kimberly M. Bond, for appellee.

                 On brief: Rex S. Ward, pro se.

                   APPEAL from the Franklin County Court of Common Pleas

BROWN, J.
        {¶ 1} This is an appeal by defendant-appellant, Rex S. Ward, from a judgment of
the Franklin County Court of Common Pleas denying his "motion to vacate a void
judgment entry and sentence."
        {¶ 2} On January 17, 1997, appellant was indicted on two counts of kidnapping,
two counts of aggravated burglary, three counts of robbery, four counts of rape, three
counts of theft, four counts of receiving stolen property, one count of aggravated robbery,
and one count of felonious assault. On October 17, 1997, appellant entered a guilty plea to
all counts of the indictment. By entry filed February 11, 1998, the trial court sentenced
appellant to an aggregate term of 38 years incarceration.
No. 16AP-774                                                                              2

         {¶ 3} On June 30, 2006, appellant filed a motion for leave to file a delayed appeal
from the trial court's 1998 judgment. By entry filed August 8, 2006, this court denied
appellant's motion (and subsequently denied his application for reconsideration).
         {¶ 4} On December 22, 2014, appellant filed a pro se motion to withdraw his
guilty plea pursuant to Crim.R. 32.1. In the accompanying memorandum in support,
appellant argued the trial court improperly imposed post-release control and that the
court failed to notify him of his right to appeal and the mandatory nature of the sentences.
By decision and entry filed July 29, 2015, the trial court denied appellant's motion to
withdraw his plea.
         {¶ 5} Following an appeal, this court affirmed the judgment of the trial court
holding that appellant filed his post-sentencing motion to withdraw his guilty plea after
an unreasonably long delay and that he failed to demonstrate prejudice and manifest
injustice based on the procedural defects alleged. See State v. Ward, 10th Dist. No. 15AP-
794, 2016-Ohio-216 ("Ward I"). Appellant subsequently filed a motion for leave to file an
application for reconsideration and consideration en banc. By memorandum decision
filed April 28, 2016, this court denied appellant's motion. State v. Ward, 10th Dist. No.
15AP-794 (Apr. 28, 2016) (memorandum decision) ("Ward II").
         {¶ 6} On June 22, 2016, appellant filed a pro se motion to "vacate a void
judgment entry and sentence." In his accompanying memorandum in support, appellant
argued in part: "Because [the trial court] did not specify what sentences it was imposing
as mandatory, it can only be seen as the entire sentence of thirty eight (38) years was
ordered mandatory."        On July 6, 2016, plaintiff-appellee, State of Ohio, filed a
memorandum contra appellant's motion to vacate arguing that, construed as a petition for
post-conviction relief, appellant's petition was untimely and barred by the doctrine of res
judicata.
         {¶ 7} By decision and entry filed October 24, 2016, the trial court denied
appellant's motion to vacate, construing the motion as a petition for post-conviction relief
and finding it to be untimely. In its decision, the trial court further noted the Tenth
District Court of Appeals had "previously confirmed" there was no error in the sentencing
entry.
         {¶ 8} On appeal, appellant sets forth the following assignment of error for this
court's review:
No. 16AP-774                                                                               3

               THE TRIAL COURT ERRED IN RECASTING THE
               DEFENDANT-APPELLANT'S MOTION TO VACATE A VOID
               JUDGMENT AND SENTENCE AS A POSTCONVICTION
               PETITION AND ERRED IN FAILING TO VACATE THE
               VOID SENTENCE AND JUDGMENT VIOLATING THE
               DEFENDANT-APELLANT'S DUE PROCESS AND EQ[U]AL
               PROTECTION RIGHTS SECURED BY BOTH THE UNITED
               STATES AND OHIO CONSTITUTIONS.

       {¶ 9} Under his single assignment of error, appellant contends the trial court
erred by improperly recasting his motion to vacate as a petition for post-conviction relief
and in failing to vacate a "void" sentence and judgment. As to his latter argument,
appellant asserts the trial court's 1998 sentencing entry failed to reflect what actually
happened at the plea and sentencing hearings. Specifically, appellant contends the trial
court imposed a void sentence by imposing a blanket mandatory prison term, failing "to
specify as to which count of the convictions the mandatory prison term applies."
       {¶ 10} We first consider appellant's contention that the trial court erred in
recasting his motion to vacate as a petition for post-conviction relief. In general, a post-
conviction relief proceeding "is a collateral civil attack on a judgment." State v. King, 8th
Dist. No. 103947, 2017-Ohio-181, ¶ 10.         Ohio's post-relief conviction statute, R.C.
2953.21(A), "permits a person who has been convicted of a criminal offense and who
claims that there was a constitutional violation that rendered the judgment void or
voidable to file a petition asking the court to set aside the judgment or grant other
appropriate relief." Id. at ¶ 11. Further, a trial court may not entertain an untimely
petition for post-conviction relief unless a defendant "initially demonstrates either (1) he
was unavoidably prevented from discovering the facts necessary for the claim for relief, or
(2) the United States Supreme Court recognized a new federal or state right that applies
retroactively to persons in the petitioner's situation." State v. Chavis, 10th Dist. No.
15AP-557, 2015-Ohio-5549, ¶ 9.
       {¶ 11} In the instant case, in its decision denying appellant's motion to vacate, the
trial court held in part:
               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
No. 16AP-774                                                                               4

               violated, such a motion is a petition for post-conviction relief
               as defined in R.C. 2953.21."

               When no direct appeal is taken, a defendant must file any
               petition for post-conviction relief within 365 days after the
               expiration of the time to file a direct appeal. Defendant did
               not file a timely appeal and the time to file an appeal expired
               in early March, 1998, thirty days after the journalization of the
               sentencing entry on February 11, 1998. Therefore, any post-
               conviction petition would have been due in March of 1999.
               Additionally, Defendant has not demonstrated that one of the
               exceptions in R.C. 2953.23(A) applies as such, Defendant's
               Motion is denied as untimely.

               Additionally, even if Defendant's Motion was timely filed, the
               sentencing Court informed Defendant that a prison term was
               mandatory pursuant to R.C. 2929.13(F), which required a
               mandatory sentence for rape. The sentencing Court then
               imposed determinate sentences for each offense, consistent
               with Senate Bill 2. In this Court's Decision of July 29, 2015 on
               Defendant's Motion to Withdraw his Guilty Plea, this Court
               inadvertently interchanged the sentencing Court's use of the
               word "determinate" with "mandatory." However, this had no
               effect on this Court's analysis or Decision and is not pertinent
               to Defendant's current Motion, as there was no mistake in the
               original sentencing entry, which was previously confirmed by
               the 10th District Court of Appeals.

(Citation omitted.)(Oct. 26, 2016 Decision & Entry at 2-3.)

       {¶ 12} Underlying appellant's contention that the trial court erred in treating his
motion as a petition for post-conviction relief is the premise that his 1998 sentence is
void. In his pro se brief, appellant asserts the trial court failed to impose a mandatory
prison term until it filed its judgment entry "nearly one month after the sentencing
hearing," and he maintains that the trial court's action constituted a violation of his due
process and equal protection rights.
       {¶ 13} In State v. Muhumed, 10th Dist. No. 11AP-1001, 2012-Ohio-6155, ¶ 6, the
defendant filed a motion to vacate and correct void sentence, arguing in part that "the trial
court failed to inform him of the mandatory nature of his sentences."              This court
construed the defendant's motion to vacate as a petition for post-conviction relief where
such motion was brought after the time to file a direct appeal had expired and after the
defendant's request for leave to file a delayed appeal was denied. Id. at ¶ 52, citing State
No. 16AP-774                                                                                5

v. Cataraso, 4th Dist. No. 01CA2636, 2002-Ohio-3211, ¶ 14 (because the defendant "filed
his motion subsequent to the time allowed for a direct appeal, claimed a denial of his
constitutional right to be sentenced in accordance with the law, and has asked this court
to void or vacate his sentence, we find that his motion constitutes a motion for post-
conviction relief").
       {¶ 14} Other Ohio courts have construed motions to vacate a void sentence on
grounds that the court failed to properly inform a defendant of the mandatory nature of
the sentence as petitions for post-conviction relief. See State v. Vancleve, 12th Dist. No.
CA2016-06-039, 2016-Ohio-7546, ¶ 20 (treating appellant's motion to vacate void
sentence, in which he asserted that sentencing entry did not specify his rape sentences
were mandatory, as petition for post-conviction relief); State v. Gopp, 9th Dist. No.
15AP0046, 2016-Ohio-5088, ¶ 6 (agreeing with state's contention that appellant's motion
to vacate void sentence for failure to inform him that his prison terms were mandatory
constituted an untimely petition for post-conviction relief).
       {¶ 15} Upon review of the record in this case, we find no error by the trial court in
construing appellant's motion as a petition for post-conviction relief and in finding it to be
untimely. However, even if the motion was timely, appellant's claims are barred by the
doctrine of res judicata. Under this doctrine, an individual is barred from "raising a
defense or claiming a lack of due process that was or could have been raised at trial or on
direct appeal." State v. Hohvart, 7th Dist. No. 07 MA 95, 2008-Ohio-5047, ¶ 14.
       {¶ 16} As noted, appellant maintains he was entitled to raise his motion outside
the parameters of a petition for post-conviction relief based on his assertion that his
sentence was void, i.e., appellant contends the trial court failed to properly inform him of
the mandatory nature of his rape sentences. Further, premised on his claim that the
sentence was void, appellant argues that the doctrine of res judicata is inapplicable.
       {¶ 17} In general, "the Ohio Supreme Court has applied its void-sentence analysis
in limited circumstances." State v. Culgan, 9th Dist. No. 09CA0060-M, 2010-Ohio-2992,
¶ 20. See also State v. Colvin, 7th Dist. No. 15 MA 0162, 2016-Ohio-5644, ¶ 23 ("the void
sanction doctrine is limited to a narrow vein of cases").
       {¶ 18} Ohio appellate courts have "declined to extend the void sanction doctrine"
in cases challenging a trial court's alleged failure to advise a defendant that his or her
sentence is mandatory, "concluding that a trial court's failure to state that a prison term is
No. 16AP-774                                                                                 6

mandatory does not render the sentence void." Vancleve at ¶ 17. See also State v. Jones,
9th Dist. No. 10CA0022, 2011-Ohio-1450, ¶ 10 (where sentences were within the statutory
ranges, "and absent authority to the contrary, the absence of [the word] 'mandatory'
regarding [defendant's] prison terms for possession of drugs does not render his sentence
void"); State v. Walker, 5th Dist. No. 15CA104, 2016-Ohio-1462, ¶ 23 (trial court's failure
to include the term "mandatory" in the defendant's sentence did not render such sentence
illegal or void).
       {¶ 19} In Vancleve, the court rejected the appellant's argument that the trial
court's failure to inform him of the mandatory nature of his sentence for rape resulted in a
void sentence, holding in part: "By operation of law, the sentences imposed on Vancleve
for his rape convictions were mandatory. * * * Regardless of whether the mandatory
nature of the rape sentences was conveyed to Vancleve, the validity of the imposed
sentences was not affected. Vancleve's sentence, therefore, was not void." Id. at ¶ 18. The
court further held that, pursuant to R.C. 2929.19(B)(7), the trial court's failure to inform
the appellant "of the mandatory nature of his prison sentences does not result in a
voidable, or reversible, error as '[t]he failure of the court to notify the offender that a
prison term is a mandatory prison term' has no 'affect [on] the validity of the imposed
sentence or sentences.' " Id. at ¶ 19.
       {¶ 20} In the present case, in addition to finding that appellant's petition was
untimely, the trial court noted that this court had previously addressed and rejected the
arguments presented in his motion to vacate. We agree. In Ward I, this court, in
reviewing appellant's appeal from the trial court's denial of his motion to withdraw guilty
plea, addressed his claim that the trial court erred in failing to properly notify him that his
sentence would include mandatory time, holding in part:
               Ward asserts that he was not informed that his sentences
               would be mandatory and the transcript and plea form are
               devoid of such language. However, Ward concedes that the
               judgment entry containing the record of his conviction and
               sentence did contain the required language on mandatory
               prison terms.

               ***

               Ward does not explain how he was prejudiced by the defects
               he alleges occurred in his plea and sentencing hearings in
No. 16AP-774                                                                          7

                  1997 and 1998 * * *. While the trial court was required to
                  substantially comply with Crim.R. 11 as to the defects Ward
                  alleges, that is, to explain the mandatory nature of the
                  sentences being imposed, * * * the trial court's failure to do so
                  under the requirements of Crim.R. 11 does not abridge the
                  Constitution and "will not invalidate a plea unless the
                  defendant thereby suffered prejudice. * * * The trial court did
                  not abuse its discretion in finding that Ward has not
                  sufficiently shown that this defect in the proceeding resulted
                  in prejudice. * * * Ward does not argue or aver that, if he had
                  realized his sentence would include mandatory time (or even
                  if everything relating to his plea had been procedurally
                  perfect), he would not have pled guilty anyway. Under the
                  factual circumstances of this case, we lack a basis from which
                  to conclude that, even if there were defects in the plea
                  proceedings, prejudice or a manifest injustice occurred such
                  that the trial court abused its discretion in failing to permit
                  Ward to withdraw his plea post-sentence.

Id. at ¶ 8, 14.

        {¶ 21} Further, in Ward II, we addressed and rejected the argument raised by
appellant in his current motion to vacate that his rape convictions did not require a
mandatory prison term, holding in part:
                  Finally, Ward argues that, in a footnote, we erred in finding
                  that Ward was properly sentenced to mandatory time for rape
                  when we noted that:

                  [I]n 1997 and 1998, when Ward pled guilty and was
                  sentenced, "mandatory prison term" was defined in relevant
                  part as "[t]he term in prison that must be imposed for the
                  offenses or circumstances set forth in division (F)(1) to (8) of
                  section 2929.13." 1995 Ohio Am.Sub.H.B. No. 180. As written
                  at that time, R.C. 2929.13(F)(2) provided that the court "shall
                  not reduce the terms" of imprisonment imposed for, among
                  other offenses, "[r]ape." Accordingly, at least some parts of
                  Ward's sentence were required to be mandatory prison terms
                  as the phrase was then defined.

                  ***

                  Ward argues that this is incorrect because R.C. 2929.13(F)(2)
                  as then-constituted read:

                  [T]he court shall impose a prison term * * * and * * * shall not
                  reduce the terms * * * for any of the following offenses:
No. 16AP-774                                                                               8


               ***

               (2) Rape, felonious sexual penetration, or an attempt to
               commit rape or felonious sexual penetration by force when
               the victim is under thirteen years of age[.]

               Ward argues that the limiting language, "when the victim is
               under thirteen years of age," should be read to apply not just
               to "attempt[s]" but also to accomplished acts of "[r]ape [and]
               felonious sexual penetration." * * * This is not accurate.
               Rather the language, "an attempt to commit rape or felonious
               sexual penetration by force when the victim is under thirteen
               years of age," is the third item in a disjunctive list where the
               first two items are "[r]ape" and "felonious sexual penetration."
               R.C. 2929.13(F)(2) (1997). In other words, the age limit
               language is part of the third list item, not a limiter of the
               entire list.

               ***

               R.C. 2929.13(F)(2), even as constituted when Ward was
               convicted and sentenced, provided mandatory prison time for
               rape regardless of the age of the victim and the legislature's
               later alterations merely to "clarify" the language to prevent
               persons from committing exactly the error in interpretation
               that Ward now makes.

       {¶ 22} Thus, as noted by the trial court, this court previously addressed and
rejected claims by appellant regarding purported error in the 1998 sentencing entry.
Here, the issues raised in appellant's motion to vacate were raised or could have been
raised previously, and the doctrine of res judicata bars relitigation of those matters.
Accordingly, for the reasons stated above, the trial court did not err in denying appellant's
motion to vacate his sentence.
       {¶ 23} Based on the foregoing, appellant's single assignment of error is without
merit and is overruled, and the judgment of the Franklin County Court of Common Pleas
is hereby affirmed.
                                                                        Judgment affirmed.

                          BRUNNER and HORTON, JJ., concur.

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