[Cite as State v. Oglesby, 2015-Ohio-4931.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. Patricia A. Delaney, J.
                         Plaintiff-Appellee    :       Hon. Craig R. Baldwin, J.
                                               :
-vs-                                           :
                                               :       Case No. 15CA42
JOSEPH OGLESBY                                 :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Richland County
                                                   Court of Common Pleas, Case No.
                                                   2012CR0573

JUDGMENT:                                          Affirmed

DATE OF JUDGMENT ENTRY:                            November 23, 2015

APPEARANCES:




For Plaintiff-Appellee                             For Defendant-Appellant

DANIEL M. ROGERS                                   JOSEPH OGLESBY PRO SE
Assistant Richland County Prosecutor               Richland Correctional Institution
38 South Park Street, 2nd Fl.                      Box 8107
Mansfield, OH 44902                                Mansfield, OH 44901
Richland County, Case No. 15CA42                                                       2

Gwin, P.J.

       {¶1}     Defendant-appellant Joseph Oglesby appeals the April 22, 2015 judgment

entry of the Richland County Court of Common Pleas denying his motions as untimely

and based upon res judicata. Appellee is the State of Ohio.

                                       Procedural History

       {¶2}     A statement of facts underlying Oglesby's original conviction is

unnecessary to our disposition of this appeal.      In October of 2012, appellant was

indicted with: one count of felonious assault for causing serious physical harm, a felony

of the second degree with an attached three year firearm specification; one count of

felonious assault with a deadly weapon, a felony of the second degree with an attached

three year firearm specification; one count of tampering with evidence, a felony of the

third degree; and one count of having weapons while under disability, a felony of the

third degree.

       {¶3}     On January 14, 2013, appellant pled guilty to Count 1, Count 3 and Count

4.   Appellee dismissed Count 2 and amended the firearm specification attached to

Count 1 from three years to one year. On March 4, 2013, appellant was sentenced to

two years in prison on Count 1, with one year in prison on the firearm specification, to

be run consecutively by operation of law. On Counts 3 and 4, appellant was sentenced

to two-and-a-half years of community control to begin upon the completion of his prison

sentence. The trial court filed a sentencing entry on March 5, 2013. Appellant did not

file a direct appeal.

       {¶4}     On January 13, 2015, appellant filed a motion to vacate void sentence.

Appellant filed a motion to correct illegal sentence or vacate void sentence on January
Richland County, Case No. 15CA42                                                          3


26, 2015. Appellee filed a response on February 17, 2015. On February 23, 2015,

appellant filed a motion to vacate sentences as void due to lack of subject matter

jurisdiction and pursuant to the Sixth Amendment of the U.S. Constitution, Section 10,

Article 1, Fourth Amendment of the U.S. Constitution, and Section 14 Article I of the

Ohio Constitution. Appellant filed a reply on March 13, 2015. Appellee filed a response

to appellant's February motion on March 27, 2015.          The trial court set appellant's

motions for non-oral hearing on March 27, 2015.

       {¶5}   On April 22, 2015, the trial court issued a judgment entry overruling

appellant's motions. The trial court treated the motions as petitions for post-conviction

relief. The trial court found appellant's petitions for post-conviction relief were untimely

and were barred due to res judicata.

       {¶6}   Appellant appeals the April 22, 2015 judgment entry of the Richland

County Court of Common Pleas and assigns the following as error:

       {¶7}   "I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY

DENYING APPELLANT'S MOTION TO CORRECT ILLEGAL SENTENCE, OR, IN THE

ALTERNATIVE, VACATE VOID SENTENCE.

       {¶8}   II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY

DENYING APPELLANT'S MOTION TO VACATE AND VOID WEAPONS WHILE

UNDER DISABILITY CONVICTION AS THE COURT WAS WITHOUT SUBJECT

MATTER JURISDICTION."

                                              I. & II.

       {¶9}   Appellant argues, in his two assignments of error, that the trial court erred

in overruling his motions. Appellant contends that his sentence is void because the trial
Richland County, Case No. 15CA42                                                          4


court: imposed consecutive sentences without making the requisite findings; committed

plain error by failing to merge the convictions on Counts 1, 3, and 4; and included in the

sentencing entry a sentence not imposed during the sentencing hearing. Appellant also

argues in his motion that the trial court lacked subject matter jurisdiction to impose a

sentence for having weapons under disability and ineffective assistance of trial counsel.

       {¶10} Appellant contends that he is not filing petitions for post-conviction relief,

but instead is challenging the subject matter jurisdiction of the trial court to sentence

him.   Jurisdiction "means the courts' statutory or constitutional power to adjudicate the

case." (Internal quotations and citations omitted). Pratts v. Hurley, 102 Ohio St.3d 81,

2004-Ohio-1980, 806 N.E.2d 992. Pursuant to R.C. 2931.03, the court of common

pleas has subject matter jurisdiction of criminal cases.      State v. Mitchell, 5th Dist.

Guernesy No. 07-CA-17, 2008-Ohio-101.             A common pleas court has original

jurisdiction in felony cases and its jurisdiction is invoked by the return of an indictment.

Click v. Eckle, 174 Ohio St. 88, 186 N.E.2d 731 (1962). The indictment in the instant

case charged appellant with several felonies alleged to have occurred in Richland

County, Ohio. The Richland County Court of Common Pleas therefore had subject

matter jurisdiction over appellant's case. See State v. Deresse, 5th Dist. Licking No. 14-

CA-31, 2014-Ohio-4234.

       {¶11} We find that although appellant couches portions of his motions as

challenges to subject matter jurisdiction, his motions must be treated as petitions for

post-conviction relief, regardless of the manner in which appellant actually presents the

motions to the court.
Richland County, Case No. 15CA42                                                               5


       {¶12} The Supreme Court of Ohio set forth the standard by which post

conviction motions are to be reviewed in light of R.C. 2953.21: "Where a criminal

defendant, subsequent to his or her direct appeal, files a motion seeking vacation or

correction of his sentence on the basis that his or her constitutional rights have been

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

2953.21." State v. Reynolds, 79 Ohio St.3d 158, 1997-Ohio-304, 679 N.E.2d 1131.

       {¶13} The Reynolds court explained that, despite the caption or the manner in

which a defendant presents a motion to the court, a motion meets the definition of a

petition for post conviction relief if it is: (1) filed subsequent to a direct appeal; (2) claims

a denial of constitutional rights; (3) seeks to render the judgment void; and (4) asks for

vacation of the judgment entry and sentence. Id.

       {¶14} Accordingly, in reviewing appellant's motions, we find them to be petitions

for post conviction relief as defined in R.C. 2953.21. The motions were filed subsequent

to the time for a direct appeal, claimed a denial of his constitutional rights, seek to

render the judgment void, and asks for vacation of the judgment and sentence.

       {¶15} R.C. 2953.21(A)(2) governs the time within a petition for post-conviction

relief must be filed and provides as follows:

       Except as otherwise provided in section 2953.23 of the Revised Code, a

       petition under division (A)(1) of this section shall be filed no later than

       three hundred sixty-five days after the date on which the trial transcript is

       filed in the court of appeals in the direct appeal of the judgment of

       conviction or adjudication * * *. If no appeal is taken, except as otherwise

       provided in section 2953.23 of the Revised Code, the petition shall be filed
Richland County, Case No. 15CA42                                                              6


          no later than three hundred sixty-five days after the expiration of the time

          for filing the appeal.

          {¶16} In this case, appellant did not file a direct appeal. Because the sentencing

entry was issued on March 5, 2013, appellant had until April 5, 2013 to file a direct

appeal. Thus, appellant had until April 5, 2014 to file a timely petition for post-conviction

relief.    His first motion was not filed until January of 2015.          Thus, it is clear that

appellant's motions were filed beyond the time requirement in R.C. 2953.21(A).

          {¶17} However, pursuant to R.C. 2953.23(A), the court may consider an

untimely petition for post conviction relief:

          (A) Whether a hearing is or is not held on a petition filed pursuant to

          section 2953.21 of the Revised Code, a court may not entertain a petition

          filed after the expiration of the period prescribed in division (A) of that

          section * * * unless division (A)(1) or (2) of this section applies:

          (1) Both of the following apply:

                 a. Either the petitioner shows that the petitioner was unavoidably

                 prevented from the discovery of the facts upon which the petitioner

                 must rely to present the claim for relief, or, subsequent to the period

                 prescribed in division (A)(2) of section 2953.21 of the Revised Code

                 or to the filing of an earlier petition, the United State Supreme Court

                 recognized a new federal or state right that applies retroactively to

                 persons in the petitioner’s situation, and the petition asserts a claim

                 based on the right.

                 b. The petitioner shows by clear and convincing evidence that, but
Richland County, Case No. 15CA42                                                          7


                for constitutional error at trial, no reasonable factfinder would have

                found the petitioner guilty of the offense of which the petitioners

                was convicted of * * *.

       (2) The petitioner was convicted of a felony, the petitioner is an offender

       for whom DNA testing was performed * * * and analyzed in the context of

       and upon consideration of all available admissible evidence related to the

       inmate’s case * * * and the results of the DNA testing establish, by clear

       and convincing evidence, establish actual innocence of that felony offense

       * * *.

       {¶18} In this case, appellant pled guilty to the offenses and makes no allegation

in his motions that results of DNA testing establish, by clear and convincing evidence,

actual innocence of those felony offenses. Appellant's arguments rely exclusively upon

what occurred at the sentencing hearing or what is included in the sentencing entry;

thus he cannot show that he was unavoidably prevented from the facts upon which he

relies on for relief or that this is newly-discovered evidence. Appellant does not set forth

any argument in his brief as to the delay in filing, why he meets the exception

requirements contained in R.C. 2953.23, or how the petitions otherwise comply with

R.C. 2953.23. As such, the trial court properly denied the motions on this basis.

       {¶19} We also find that the issues raised by appellant are barred by the doctrine

of res judicata. Under the doctrine of res judicata, a final judgment of conviction bars

the defendant who was represented by counsel from raising and litigating in any

proceeding, except an appeal from that judgment, any defense or claimed lack of due

process that the defendant raised or could have raised at the trial which resulted in that
Richland County, Case No. 15CA42                                                             8

judgment of conviction or on appeal from that judgment. State v. Perry, 10 Ohio St.2d

175, 226 N.E.2d 104 (1967). A defendant who was represented by counsel is barred

from raising an issue in a petition for post-conviction relief if the defendant raised or

could have raised the issue at trial or on direct appeal. State v. Szefcyk, 77 Ohio St.3d

93, 1996-Ohio-337, 671 N.E.2d 233. The allegations appellant makes in his motions

concerning the imposition of sentences, the sentencing entry, the merger of sentences,

consecutive sentences, and ineffective assistance of trial counsel could all have been

raised on a direct appeal. Therefore, the trial court properly denied appellant's motions

on this basis.

       {¶20} In his brief, appellant argues that the trial court erred by denying his

motions without conducting an evidentiary hearing. We disagree. We apply an abuse

of discretion standard when reviewing a trial court's decision to deny a post-conviction

relief petition without a hearing. State v. Holland, 5th Dist. Licking No. 12-CA-56, 2013-

Ohio-905. An abuse of discretion connotes more than an error of law or judgment; it

entails a decision that is unreasonable, arbitrary, or unconscionable.          Blakemore v.

Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

       {¶21} Under R.C. 2953.21, a petitioner seeking post-conviction relief is not

automatically entitled to an evidentiary hearing. State v. Calhoun, 86 Ohio St.3d 279,

714 N.E.2d 905 (1999). The Ohio Supreme Court has held that the proper basis for

dismissing a petition for post-conviction relief without holding an evidentiary hearing

include: (1) the failure of the petitioner to set forth sufficient operative facts to establish

substantive grounds for relief, and (2) the operation of res judicata to bar the
Richland County, Case No. 15CA42                                                          9

constitutional claims raised in the petition. Id.; State v. Lentz, 70 Ohio St.3d 527, 639

N.E.2d 784 (1994).

       {¶22} As discussed above, appellant's arguments are barred by res judicata and

thus the trial court did not abuse its discretion in overruling appellant's motions without

an evidentiary hearing.    Further, as analyzed above, since appellant's motions are

properly construed as petitions for post-convictions relief, it is apparent that they should

have been denied or dismissed without a hearing because they were filed well beyond

the time limits set by R.C. 2953.21. State v. Lynn, 5th Dist. Muskingum No. CT2007-

0046, 2008-Ohio-2149. Accordingly, the trial court did not err in failing to conduct an

evidentiary hearing on the motions as they were untimely filed. Id.

       {¶23} Based on the foregoing, appellant's assignments of error are overruled.

The April 22, 2015 judgment entry of the Richland County Court of Common Pleas is

affirmed.


By Gwin, P.J.,

Delaney, J., and

Baldwin, J., concur
