State v. Alston

2016 Ohio 5086

Opinion

[Cite as State v. Alston, 2016-Ohio-5086.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

STATE OF OHIO C.A. No. 15CA010808

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE FREDRICK ALSTON COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellant CASE No. 10CR081495

DECISION AND JOURNAL ENTRY

Dated: July 25, 2016

HENSAL, Judge.

{¶1} Frederick Alston appeals the judgment of the Lorain County Court of Common

Pleas, denying his pro se motion to find the judgment entry of conviction and sentence void in

part. This Court affirms.

I.

{¶2} After initially entering a plea of not guilty, Frederick Alston pleaded guilty to

having weapons while under disability in violation of Revised Code Section 2923.13(A)(3) and

violating a protection order in violation of Section 2919.27(A)(1). On June 29, 2011, the trial

court sentenced Mr. Alston to two years of community control and imposed court costs. Mr.

Alston did not file a direct appeal. The trial court terminated his community control in 2012.

{¶3} In 2015, Mr. Alston moved the trial court to find its judgment entry of conviction

and sentence void in part on the basis that it failed to comply with Section 2947.23(A)(1)(a).

Specifically, he argued that the trial court failed to impose court costs in its judgment entry and 2

that it failed to notify him that it could impose community service if he failed to pay court costs.

Mr. Alston acknowledged that his petition for post-conviction relief was untimely, but argued

that a court may review a void sentence at any time and that res judicata does not apply to void

sentences. The trial court denied his motion, holding that the judgment entry and sentencing

transcript indicated that all statutory requirements had been met. Mr. Alston now appeals,

raising one assignment of error for our review.

II.

ASSIGNMENT OF ERROR

THE JUDGMENT ENTRY IS VOID AND A NON-FINAL APPEALABLE ORDER, WHERE THE TRIAL COURT FAILED TO INCLUDE COURT COST[S] IN THE [JUDGMENT] ENTRY AS * * * REQUIRED IN VIOLATION OF R.C. 2947.23(A)(1) AND R.C. 2505.02.

{¶4} In his sole assignment of error, Mr. Alston argues that the judgment entry of

conviction is void and a non-final appealable order because the trial court failed to include court

costs. Our review of the record, however, indicates that the judgment entry does reflect that the

trial court imposed court costs. His argument, therefore, lacks merit.

{¶5} To the extent that Mr. Alston’s argument can be construed to challenge the

judgment entry on the basis that it does not specify the amount of court costs owed, his argument

is barred by res judicata. As the Ohio Supreme Court has stated, “failing to specify the amount

of costs assessed in a sentencing entry does not defeat the finality of the sentencing entry as to

costs.” State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, ¶ 21. Thus, because Mr. Alston

did not raise this issue on direct appeal, he is barred from doing so now. State v. Jones, 9th Dist.

Summit No. 26854, 2013-Ohio-3710, ¶ 7, quoting State v. Ketterer, 126 Ohio St.3d 448, 2010–

Ohio–3831, ¶ 59 (“The doctrine of res judicata ‘bars the assertion of claims against a valid, final

judgment of conviction that * * * could have been raised on [direct] appeal.’”). 3

{¶6} Furthermore, when a defendant does not file a direct appeal, a petition for post-

conviction relief must be filed “no later than three hundred sixty-five days after the expiration of

the time for filing the appeal.” R.C. 2953.21(A)(2). Under Section 2953.23(A)(1), a court has

no jurisdiction to hear an untimely petition for post-conviction relief unless the petitioner shows

“either that he was unavoidably prevented from discovering the facts upon which he relies in the

petition, or that the United States Supreme Court has, since his last petition, recognized a new

federal or state right that applies retroactively to the petitioner.” State v. Williams, 9th Dist.

Summit No. 25879, 2011-Ohio-6141, ¶ 15, citing R.C. 2953.23(A)(1). Additionally, the

petitioner must show “by clear and convincing evidence that a reasonable factfinder would not

have found him guilty but for constitutional error at trial.” Id., citing R.C. 2953.23(A)(1).

{¶7} Here, although Mr. Alston acknowledged below that his petition for post-

conviction relief was untimely, his petition “did not offer an explanation regarding why he was

unavoidably prevented from discovering the facts upon which his petition was based, nor did it

identify a retroactive right that has been recognized by the United States Supreme Court.” State

v. Wright, 9th Dist. Summit No. 27880, 2016-Ohio-3542, ¶ 9. The trial court, therefore, lacked

jurisdiction to consider the merits of Mr. Alston’s petition and correctly denied him the requested

relief. Id.

{¶8} Mr. Alston’s assignment of error is overruled.

III.

{¶9} Mr. Alston’s assignment of error is overruled. The judgment of the Lorain

County Court of Common Pleas is affirmed.

Judgment affirmed. 4

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

JENNIFER HENSAL FOR THE COURT

CARR, P. J. CANNON, J. CONCUR.

(Cannon, J., of the Eleventh District Court of Appeals, sitting by assignment.)

APPEARANCES:

FREDRICK M. ALSTON, pro se, Appellant.

DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant Prosecuting Attorney, for Appellee.