[Cite as State v. Williams, 2015-Ohio-4576.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :     JUDGES:
                                               :     Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellee                   :     Hon. John W. Wise, J.
                                               :     Hon. Craig R. Baldwin, J.
-vs-                                           :
                                               :
BRIAN L. WILLIAMS                              :     Case No. 15 CAA 03 0023
                                               :
        Defendant - Appellant                  :     OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Delaware County
                                                     Court of Common Pleas, Case No.
                                                     08CR-I-06-0347



JUDGMENT:                                            Affirmed



DATE OF JUDGMENT:                                    November 3, 2015




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

CAROL HAMILTON O'BRIEN                               BRIAN L. WILLIAMS, pro se
Prosecuting Attorney                                 CCI, #A586-903
                                                     P.O. Box 5500
By: DOUGLAS N. DUMOLT                                Chillicothe Correctional Institution
Assistant Prosecuting Attorney                       15802 State Route 104 North
Delaware County Prosecutor’s Office                  Chillicothe, OH 45061
140 North Sandusky Street
Delaware, OH 43015
Delaware County, Case No. 15 CAA 03 0023                                                2

Baldwin, J.

      {¶1}    Appellant Brian L. Williams appeals a judgment of the Delaware County

Common Pleas Court dismissing his motion to present plain errors and defects.

Appellee is the State of Ohio.

                             STATEMENT OF FACTS AND CASE

      {¶2}    On June 23, 2008, appellant entered a guilty plea to a Bill of Information

charging him with two counts of sexual battery in violation of R.C. 2907.03(A)(12).

According to information presented at the sentencing hearing, appellant had both oral

and vaginal sex with a 15-year-old member of the church at which he worked as a

pastor.    Appellant had been counseling the victim for personal and mental health

problems. The court sentenced appellant to four years incarceration on each count, to

be served consecutively.

      {¶3}    Appellant filed a "motion to present plain errors and defects and request

for an evidentiary hearing to correct an illegal sentence" on November 25, 2014. In his

motion, appellant argued that the charges were allied offenses of similar import, that the

court erred in sentencing him to consecutive sentences, that the court failed to advise

him of his right to appeal at sentencing, and that his trial counsel was ineffective. The

trial court overruled the motion, finding that appellant's claims should have been raised

on direct appeal or pursuant to a timely petition for postconviction relief under R.C.

2953.21.

      {¶4}    Appellant assigns the following errors to this Court:

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

DENYING DEFENDANT'S CLEARLY DEFINED MOTION TO PRESENT PLAIN
Delaware County, Case No. 15 CAA 03 0023                                     3


ERRORS TO CORRECT AN ILLEGAL SENTENCE AS AN IMPROPER SUBSTITUTE

FOR AN APPEAL OR POSTCONVICTION RELIEF.

     {¶6}   "II.        THE TRIAL COURT ERRED BY DETERMINING THAT TWO

COUNTS OF SEXUAL BATTERY; WHICH OCCURRED ON THE SAME DAY, DATE

AND TIME INVOLVING THE SAME VICTIM WERE NOT ALLIED OFFENSES OF

SIMILAR IMPORT UNDER O.R.C. SECTION 2941.25(B); AND THIS WAS PLAIN

ERROR WHICH IS ON THE FACE OF THE RECORD AND CAN BE NOTICED AT

ANY TIME; NOT BARRED BY WAIVER OR RES JUDICATA.

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

RUNNING       APPELLANT'S         SENTENCES     CONSECUTIVELY;       WITHOUT

ESTABLISHING        A    NEED   FOR   CONSECUTIVE   SENTENCES      UNDER   THE

MANDATES OF THE FELONY SENTENCES STATUTES AND THE SPECIFIC

PROVISIONS OF O.R.C. SECTION 2929.14(E)(4).

     {¶8}   "IV.        THE TRIAL COURT ERRED AND DENIED APPELLANT DUE

PROCESS BY FAILING TO ADDRESS, AT SENTENCING, THAT HE HAD THE

RIGHT TO APPEAL THE COURT'S DECISIONS; SPECIFICALLY INCLUDING THE

RIGHT TO APPEAL THE SENTENCE. IN FACT, NO NOTICE WAS EVER GIVEN TO

APPELLANT AS THE SENTENCING ENTRY OF AUGUST 19, 2008 WAS ALSO

SILENT AS TO HIS RIGHT TO APPEAL ANY ASPECT OF THE CONVICTION OR

SENTENCE.

     {¶9}   "V.         THE APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF

COUNSEL     AT      CRITICAL    STAGES   OF   THE   PROCEEDINGS,    PRE-TRIAL;

INCLUDING LIES AND MISREPRESENTATIONS REGARDING THE RESULT OF HIS
Delaware County, Case No. 15 CAA 03 0023                                                     4


GUILTY PLEA AND SENTENCE AS WELL AS HIS RIGHT TO APPEAL THE TRIAL

COURT'S DECISIONS AND SENTENCE."

                                                  I.

          {¶10} In his first assignment of error, appellant argues that the court erred in

finding his claims to be untimely and barred by res judicata.

          {¶11} A motion to correct or vacate a sentence, despite its caption, meets the

definition of a motion for postconviction relief set forth in R.C. 2953.21(A)(1), if it was (1)

filed subsequent to direct appeal, (2) claims a denial of constitutional rights, (3) seeks to

render the judgment void, and (4) asks for vacation of the judgment and sentence. State

v. Reynolds, 79 Ohio St.3d 158, 160, 679 N.E.2d 1131 (1997). Appellant's motion

meets this definition, and therefore despite its caption was a petition for postconviction

relief.

          {¶12} Because appellant did not file a direct appeal from his conviction,

appellant had 365 days after the expiration of the time for filing an appeal in which to file

a petition for postconviction relief.     Appellant's judgment of sentence was filed on

August 19, 2008. Therefore, a timely petition for postconviction relief must have been

filed in September of 2009. Appellant did not file his petition until November 25, 2014.

The petition was therefore untimely, and the court did not err in dismissing it without a

hearing.

          {¶13} R.C. 2953.23(A)(1) allows the court to consider an untimely petition if both

of the following apply:

          {¶14} "(a) Either the petitioner shows that the petitioner was unavoidably

prevented from discovery of the facts upon which the petitioner must rely to present the
Delaware County, Case No. 15 CAA 03 0023                                                   5


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 States

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 that right.

       {¶15} "(b) The petitioner shows by clear and convincing evidence that, but for

constitutional error at trial, no reasonable factfinder would have found the petitioner

guilty of the offense of which the petitioner was convicted or, if the claim challenges a

sentence of death that, but for constitutional error at the sentencing hearing, no

reasonable factfinder would have found the petitioner eligible for the death sentence."

       {¶16} Although appellant argues that he was not informed of his right to appeal

pursuant to Crim. R. 32, he did not demonstrate that he was unavoidably prevented

from timely discovering the facts on which he relied to present his claim for

postconviction relief as required by R.C. 2953.23(A)(1).

       {¶17} The trial court did not err in dismissing appellant's petition as untimely

filed. The first assignment of error is overruled.

                                               II.-V.

       {¶18} Because appellant's petition was not timely filed, his second through fifth

assignments of error, which address the merits of his petition, are moot. Assignments

of error two, three, four and five are accordingly overruled.
Delaware County, Case No. 15 CAA 03 0023                                     6


      {¶19} The judgment of the Delaware County Common Pleas Court is affirmed.

Costs are assessed to appellant.


By: Baldwin, J.

Gwin, P.J. and

Wise, J. concur.
