[Cite as State v. Grant, 2012-Ohio-4474.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee : Hon. John W. Wise, J. : Hon. Julie A. Edwards, J. -vs- : : Case No. 11CA84 TIMOTHY GRANT : : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 2006-CR-834-D
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: September 20, 2012
APPEARANCES:
For Appellant: For Appellee:
TIMOTHY GRANT, pro se JAMES J. MYER, JR. No. 510-685 RICHLAND COUNTY PROSECUTOR Noble Correctional Institution DANIEL J. BENOIT 15708 McConnelsville Rd. 38 South Park Street Caldwell, OH 43724 Mansfield, OH 44902 [Cite as State v. Grant, 2012-Ohio-4474.]
Delaney, J.
{¶1} Appellant Timothy Grant appeals from the August 25, 2011 judgment
entry of the Richland County Court of Common Pleas overruling his motion for relief
from judgment and to correct illegal sentence. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} Appellant was convicted upon trial by jury of rape, unlawful sexual
conduct with a minor, kidnapping, sexual battery, and abduction on March 23, 2007,
and was sentenced to an aggregate prison term of 17 years on March 26, 2007. The
prison term was imposed consecutive to a term appellant was already serving.
{¶3} We affirmed the judgment of conviction and sentence on July 7, 2008 in
State v. Grant, 5th Dist. No. 07 CA 32, 2008-Ohio-3429. The Ohio Supreme Court
denied appellant’s motion for delayed appeal on March 3, 2010 in State v. Grant, 124
Ohio St.3d 1491, 2010-Ohio-670, 922 N.E.2d 227.
{¶4} Appellant filed a “Motion to Correct Illegal Sentence” on June 22, 2011,
and a “Motion for Relief from Judgment Pursuant to Civil Rule 60(B)(5) and Criminal
Rule 52” on July 8, 2011. The trial court denied both motions in a single entry dated
August 25, 2011, from which appellant now appeals.
{¶5} Pursuant to App.R. 21(A), we ordered this case submitted without oral
argument because appellant is presently incarcerated.
{¶6} Appellant raises seven Assignments of Error:
{¶7} “I. TRIAL COURTS ABUSE OF DISCRETION IN FAILING TO GRANT
DEFENSES REQUEST FOR ACQUITTAL UNDER CRIMINAL RULE 29,
ACCORDING TO THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE Richland County, Case No. 11CA84 3
VIOLATING APPELLANTS 14TH AMENDMENT RIGHTS AND O CONST SEC.1
INALIENABLE RIGHTS.” (sic)
{¶8} “II. TRIAL COURT ABUSED IT’S DISCRETION AND COMMITTED
STRUCTURAL AND PLAIN ERROR WHEN IT DENIED DEFENSE PERMISSION TO
SUBMIT TESTIMONY OF OFFICER DUNCAN WHO RESPONDED TO ALLEGED
ASSAULT AN TOOK THE REPORT OF THE ALLEGED VICTIM AND REPORTED IN
HIS REPORT THAT VICTIM WASN’T TELLING THE TRUTH ABOUT INCIDENT.
WHICH WAS RELEVANT EVIDENCE ON BEHALF OF THE DEFENSE WHICH
CAUSED THE JURY TO ERR AND UNREASONABLY AND INCOMPETENTLY
WEIGH EVIDENCE PROPERLY, VIOLATING APPELLANT’S 14TH AMENDMENT
RIGHTS, O CONST. ART 1 SEC 1 AND O CONST ART 1 SEC 2 GUARANTEEING
EQUAL PROTECTION AN DUE PROCESS.” (sic)
{¶9} “III. TRIAL COURT COMMITTED PLAIN ERROR IN ALLOWING JURY
INSTRUCTIONS THAT DIDN’T ADVISED JURY THAT DEFENDANT COULD ONLY
BE FOUND GUILTY OF ONE CHARGE EVEN THOUGH THE INDICTMENT MAY
HAVE CONTAINED MORE THAN ONE CHARGE FOR THE SAME CHARGE.
VIOLATING APPELLANTS 14TH AMENDMENT RIGHTS AND O CONST I SEC 1
{¶10} “IV. TRIAL COURT COMMITTED PLAIN ERROR IN SENTENCING OF
DEFENDANT ON TWO SEPARATE CHARGES OF SIMILAR IMPORT THAT HE
COULD ONLY BE FOUND GUILTY OF ONLY ONE AND SENTENCED FOR ONLY
ONE IN VIOLATION OF APPELLANT’S 5TH AND 14TH AMENDMENT RIGHTS, O Richland County, Case No. 11CA84 4
CONST. ART I SEC 1 AND O CONST ART 1 SEC 2 BOTH GUARANTEEING EQUAL
PROTECTION AND DUE PROCESS.” (sic)
{¶11} “V. TRIAL COURT COMMITTED PLAIN ERROR WHEN IT
SENTENCED DEFENDANT ON FELONY ONE RAPE AND KIDNAPPING EVEN
THOUGH JURY VERDICT ONLY FOUND DEFENDANT GUILTY OF THE TWO
CHARGES WITHOUT STATING DEGREE, WHICH WOULD ONLY BE THE LEAST
DEGREE OF THE OFFENSE WITHOUT SPECIAL FINDINGS CITED UNDER R.C.
2945.75. IN VIOLATION OF APPELLANT’S 14TH AMENDMENT RIGHTS, O CONST.
ART 1 SEC 1 AND O CONST. ART 1 SEC 2 BOTH GUARANTEEING EQUAL
{¶12} “VI. JURY VERDICT DIDN’T RENDER NECESSARY AND REQUIRED
VERDICT FINDINGS NAMELY VENUE, TIME AND DATE TO CONVICT
DEFENDANT OF CHARGES REQUIRED BY JURY INSTRUCTIONS WHICH ARE
GROUNDS FOR RELIEF BY ACQUITTAL IN VIOLATION OF APPELLANT’S 14TH
AMENDMENT RIGHTS, O CONST. ART 1 SEC 1 AND O CONST. ART 1 SEC 2
GUARANTEEING EQUAL PROTECTION AND DUE PROCESS..” (sic)
{¶13} “VII. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND ABUSE
OF DISCRETION BY TRIAL COURT IN SAME MATTER THAT FOLLOWS WHICH
WAS A VIOLATION OF APPELLANT’S 14TH AMENDMENT RIGHTS, O CONST.
PROTECTION AND DUE PROCESS.” (sic) Richland County, Case No. 11CA84 5
I., II., III., IV., V., VI., VII.
{¶14} Appellant appeals from a judgment entry denying two motions: a “Motion
to Correct Illegal Sentence” and a “Motion for Relief from Judgment Pursuant to Civil
Rule 60(B)(5) and Criminal Rule 52.” We note an inconsistency between appellant’s
assignments of error and the trial court’s judgment entry from which he purports to
appeal. Appellant’s assignments of error raise substantive issues not addressed by
the trial court, and appellant has failed to assign as error the trial court’s conclusions
that his motions are untimely and barred by res judicata. In the interest of justice, we
will determine if the trial court erred in overruling appellant’s motions on those
grounds.
{¶15} The trial court treated the motion for relief from judgment as a petition for
postconviction relief pursuant to R.C. 2953.71 and noted the motion was filed outside
the 180-day time limit for postconviction relief petitions. Appellant made no attempt to
justify his untimely postconviction relief petition pursuant to R.C. 2953.23(A).
{¶16} R.C. 2953.21(A)(2) states:
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 one
hundred eighty 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 or, if the direct appeal involves a sentence of death, the date on
which the trial transcript is filed in the supreme court. If no appeal is taken,
except as otherwise provided in section 2953.23 of the Revised Code, the Richland County, Case No. 11CA84 6
petition shall be filed no later than one hundred eighty days after the expiration
of the time for filing the appeal.
{¶17} R.C. 2953.23(A)(1) provides a limited exception to the rule:
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 or a second
petition or successive petitions for similar relief on behalf of a petitioner unless *
* * [b]oth of the following apply:
(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
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[Cite as State v. Grant, 2012-Ohio-4474.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee : Hon. John W. Wise, J. : Hon. Julie A. Edwards, J. -vs- : : Case No. 11CA84 TIMOTHY GRANT : : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 2006-CR-834-D
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: September 20, 2012
APPEARANCES:
For Appellant: For Appellee:
TIMOTHY GRANT, pro se JAMES J. MYER, JR. No. 510-685 RICHLAND COUNTY PROSECUTOR Noble Correctional Institution DANIEL J. BENOIT 15708 McConnelsville Rd. 38 South Park Street Caldwell, OH 43724 Mansfield, OH 44902 [Cite as State v. Grant, 2012-Ohio-4474.]
Delaney, J.
{¶1} Appellant Timothy Grant appeals from the August 25, 2011 judgment
entry of the Richland County Court of Common Pleas overruling his motion for relief
from judgment and to correct illegal sentence. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} Appellant was convicted upon trial by jury of rape, unlawful sexual
conduct with a minor, kidnapping, sexual battery, and abduction on March 23, 2007,
and was sentenced to an aggregate prison term of 17 years on March 26, 2007. The
prison term was imposed consecutive to a term appellant was already serving.
{¶3} We affirmed the judgment of conviction and sentence on July 7, 2008 in
State v. Grant, 5th Dist. No. 07 CA 32, 2008-Ohio-3429. The Ohio Supreme Court
denied appellant’s motion for delayed appeal on March 3, 2010 in State v. Grant, 124
Ohio St.3d 1491, 2010-Ohio-670, 922 N.E.2d 227.
{¶4} Appellant filed a “Motion to Correct Illegal Sentence” on June 22, 2011,
and a “Motion for Relief from Judgment Pursuant to Civil Rule 60(B)(5) and Criminal
Rule 52” on July 8, 2011. The trial court denied both motions in a single entry dated
August 25, 2011, from which appellant now appeals.
{¶5} Pursuant to App.R. 21(A), we ordered this case submitted without oral
argument because appellant is presently incarcerated.
{¶6} Appellant raises seven Assignments of Error:
{¶7} “I. TRIAL COURTS ABUSE OF DISCRETION IN FAILING TO GRANT
DEFENSES REQUEST FOR ACQUITTAL UNDER CRIMINAL RULE 29,
ACCORDING TO THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE Richland County, Case No. 11CA84 3
VIOLATING APPELLANTS 14TH AMENDMENT RIGHTS AND O CONST SEC.1
INALIENABLE RIGHTS.” (sic)
{¶8} “II. TRIAL COURT ABUSED IT’S DISCRETION AND COMMITTED
STRUCTURAL AND PLAIN ERROR WHEN IT DENIED DEFENSE PERMISSION TO
SUBMIT TESTIMONY OF OFFICER DUNCAN WHO RESPONDED TO ALLEGED
ASSAULT AN TOOK THE REPORT OF THE ALLEGED VICTIM AND REPORTED IN
HIS REPORT THAT VICTIM WASN’T TELLING THE TRUTH ABOUT INCIDENT.
WHICH WAS RELEVANT EVIDENCE ON BEHALF OF THE DEFENSE WHICH
CAUSED THE JURY TO ERR AND UNREASONABLY AND INCOMPETENTLY
WEIGH EVIDENCE PROPERLY, VIOLATING APPELLANT’S 14TH AMENDMENT
RIGHTS, O CONST. ART 1 SEC 1 AND O CONST ART 1 SEC 2 GUARANTEEING
EQUAL PROTECTION AN DUE PROCESS.” (sic)
{¶9} “III. TRIAL COURT COMMITTED PLAIN ERROR IN ALLOWING JURY
INSTRUCTIONS THAT DIDN’T ADVISED JURY THAT DEFENDANT COULD ONLY
BE FOUND GUILTY OF ONE CHARGE EVEN THOUGH THE INDICTMENT MAY
HAVE CONTAINED MORE THAN ONE CHARGE FOR THE SAME CHARGE.
VIOLATING APPELLANTS 14TH AMENDMENT RIGHTS AND O CONST I SEC 1
{¶10} “IV. TRIAL COURT COMMITTED PLAIN ERROR IN SENTENCING OF
DEFENDANT ON TWO SEPARATE CHARGES OF SIMILAR IMPORT THAT HE
COULD ONLY BE FOUND GUILTY OF ONLY ONE AND SENTENCED FOR ONLY
ONE IN VIOLATION OF APPELLANT’S 5TH AND 14TH AMENDMENT RIGHTS, O Richland County, Case No. 11CA84 4
CONST. ART I SEC 1 AND O CONST ART 1 SEC 2 BOTH GUARANTEEING EQUAL
PROTECTION AND DUE PROCESS.” (sic)
{¶11} “V. TRIAL COURT COMMITTED PLAIN ERROR WHEN IT
SENTENCED DEFENDANT ON FELONY ONE RAPE AND KIDNAPPING EVEN
THOUGH JURY VERDICT ONLY FOUND DEFENDANT GUILTY OF THE TWO
CHARGES WITHOUT STATING DEGREE, WHICH WOULD ONLY BE THE LEAST
DEGREE OF THE OFFENSE WITHOUT SPECIAL FINDINGS CITED UNDER R.C.
2945.75. IN VIOLATION OF APPELLANT’S 14TH AMENDMENT RIGHTS, O CONST.
ART 1 SEC 1 AND O CONST. ART 1 SEC 2 BOTH GUARANTEEING EQUAL
{¶12} “VI. JURY VERDICT DIDN’T RENDER NECESSARY AND REQUIRED
VERDICT FINDINGS NAMELY VENUE, TIME AND DATE TO CONVICT
DEFENDANT OF CHARGES REQUIRED BY JURY INSTRUCTIONS WHICH ARE
GROUNDS FOR RELIEF BY ACQUITTAL IN VIOLATION OF APPELLANT’S 14TH
AMENDMENT RIGHTS, O CONST. ART 1 SEC 1 AND O CONST. ART 1 SEC 2
GUARANTEEING EQUAL PROTECTION AND DUE PROCESS..” (sic)
{¶13} “VII. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND ABUSE
OF DISCRETION BY TRIAL COURT IN SAME MATTER THAT FOLLOWS WHICH
WAS A VIOLATION OF APPELLANT’S 14TH AMENDMENT RIGHTS, O CONST.
PROTECTION AND DUE PROCESS.” (sic) Richland County, Case No. 11CA84 5
I., II., III., IV., V., VI., VII.
{¶14} Appellant appeals from a judgment entry denying two motions: a “Motion
to Correct Illegal Sentence” and a “Motion for Relief from Judgment Pursuant to Civil
Rule 60(B)(5) and Criminal Rule 52.” We note an inconsistency between appellant’s
assignments of error and the trial court’s judgment entry from which he purports to
appeal. Appellant’s assignments of error raise substantive issues not addressed by
the trial court, and appellant has failed to assign as error the trial court’s conclusions
that his motions are untimely and barred by res judicata. In the interest of justice, we
will determine if the trial court erred in overruling appellant’s motions on those
grounds.
{¶15} The trial court treated the motion for relief from judgment as a petition for
postconviction relief pursuant to R.C. 2953.71 and noted the motion was filed outside
the 180-day time limit for postconviction relief petitions. Appellant made no attempt to
justify his untimely postconviction relief petition pursuant to R.C. 2953.23(A).
{¶16} R.C. 2953.21(A)(2) states:
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 one
hundred eighty 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 or, if the direct appeal involves a sentence of death, the date on
which the trial transcript is filed in the supreme court. If no appeal is taken,
except as otherwise provided in section 2953.23 of the Revised Code, the Richland County, Case No. 11CA84 6
petition shall be filed no later than one hundred eighty days after the expiration
of the time for filing the appeal.
{¶17} R.C. 2953.23(A)(1) provides a limited exception to the rule:
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 or a second
petition or successive petitions for similar relief on behalf of a petitioner unless *
* * [b]oth of the following apply:
(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
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.
(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 * * *.
{¶18} The record in appellant’s direct appeal was filed on June 6, 2007,
supplemented by the filing of the transcript on August 9, 2007. Appellant filed his
“Motion for Relief from Judgment Pursuant to Civil Rule 60(B)(5) and Criminal Rule
52” on July 8, 2011, considerably beyond the 180-day time limit. Therefore, the trial
court had no jurisdiction to consider appellant’s motion unless R.C. 2953.23 applied, Richland County, Case No. 11CA84 7
but appellant’s petition does not show he was unavoidably prevented from discovering
facts upon which it was based, nor was his petition based upon a new right recognized
by the United States Supreme Court. We therefore conclude the trial court properly
found appellant’s motion for relief from judgment to be untimely.
{¶19} The trial court overruled appellant’s Motion to Correct Illegal Sentence
on the basis his argument that rape and kidnapping are allied offenses of similar
import was barred by res judicata. Appellant raised this issue in his third assignment
of error in his 2008 appeal and we found the argument to be without merit.
{¶20} The trial court did not err in overruling appellant’s motion on the basis of
res judicata. The substantive assignments of error appellant improperly attempts to
raise here are similarly barred by res judicata. Not only are these arguments not
addressed by the trial court in the entry appealed from, but as the State points out,
appellant has already fully litigated his direct appeal. Res judicata will be applied to
bar the further litigation of issues that were either raised or could have been raised
upon direct appeal. Richland County, Case No. 11CA84 8
{¶21} Appellant’s seven assignments of error are overruled and the judgment
of the Richland County Court of Common Pleas is affirmed.
By: Delaney, P.J.
Wise, J. and
Edwards, J. concur.
HON. PATRICIA A. DELANEY
HON. JOHN W. WISE
HON. JULIE A. EDWARDS
PAD:kgb [Cite as State v. Grant, 2012-Ohio-4474.]
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : TIMOTHY GRANT : : : Case No. 11CA84 Defendant-Appellant :
For the reasons stated in our accompanying Opinion on file, the judgment of the
Richland County Court of Common Pleas is affirmed. Costs assessed to Appellant.