State v. Johnson

2017 Ohio 111

• Court: Ohio Court of Appeals
• Decided: January 10, 2017
• Docket: 16 CAA 10 0045, 16 CAA 10 0046
• Status: Published

Opinion

[Cite as State v. Johnson, 2017-Ohio-111.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. Sheila G. Farmer, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Patricia A. Delaney, J. -vs- Case No. 16 CAA 100045, BRIAN A. JOHNSON 16 CAA 100046

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 14-CR-I-01-0019

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: January 10, 2017

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CAROL O'BRIEN BRIAN A. JOHNSON, PRO SE Delaware County Prosecuting Attorney Chillicothe Correctional Institution P.O. Box 5500 JAHAN KARAMALI Chillicothe, Ohio 45601 Assistant Prosecuting Attorney 140 N. Sandusky St., 3rd Floor Delaware, Ohio 43015 Delaware County, Case No. 16 CAA 100045, 16 CAA 100046 2

Hoffman, J.

{¶1} Defendant-appellant Brian Johnson appeals the October 4, 2016 Judgment

Entry entered by the Delaware County Court of Common Pleas. Plaintiff-appellee is the

state of Ohio.

STATEMENT OF THE CASE1

{¶2} This case has a lengthy procedural history.

{¶3} On January 17, 2014, the Delaware County Grand Jury indicted Appellant,

Brian Johnson, on four counts of rape in violation of R.C. 2907.02 and four counts of

sexual battery in violation of R.C. 2907.03.

{¶4} A jury trial commenced on May 20, 2014. Four of the counts were amended

to attempted offenses and Appellant was found guilty as charged. By judgment entry filed

July 8, 2014, the trial court merged some of the offenses and sentenced Appellant to an

aggregate term of fourteen years in prison.

{¶5} Appellant filed a direct appeal and this court affirmed his convictions and

sentence. State v. Johnson, 5th Dist. Delaware No. 14CAA070039, 2015–Ohio–1676,

appeal not accepted, 43 Ohio St .3d 1501, 2015–Ohio–4468. Appellant applied to reopen

his appeal which the Supreme Court of Ohio declined to review on March 23, 2016. State

v. Johnson, 145 Ohio St.3d 1425, 2016–Ohio–1173.

{¶6} On February 26, 2015, Appellant filed a petition for post-conviction relief

focusing on ineffective assistance of counsel. By a thorough and lengthy judgment entry

filed March 12, 2015, the trial court denied the petition without a hearing. Appellant filed

1 A rendition of the underlying facts is unnecessary for our resolution of this appeal. Delaware County, Case No. 16 CAA 100045, 16 CAA 100046 3

an appeal which this court dismissed for unauthorized practice of law. State v. Johnson,

5th Dist. Delaware No. 15 CAA 03 0027.

{¶7} On October 21, 2015, Appellant filed another petition for post-conviction

relief which the trial court denied the next day as a successive petition not meeting the

requirements of R.C. 2953.23(A)(1). Appellant filed an appeal and this court affirmed the

trial court's decision. State v. Johnson, 5th Dist. Delaware No. 15 CAA 11 0092, 2016–

Ohio–1213, appeal not accepted, 146 Ohio St.3d 1471, 2016–Ohio–5108.

{¶8} On November 25, 2015, Appellant moved for appointment of counsel which

the trial court denied on November 30, 2015. Appellant filed an appeal which this court

dismissed for want of prosecution. State v. Johnson, 5th Dist. Delaware No. 15 CAA 12

0096.

{¶9} On March 3, 2016, Appellant filed a motion for resentencing which the trial

court denied on the same day. Appellant filed an appeal and this court affirmed the trial

court's decision, but remanded the matter to the trial court to issue a nunc pro tunc

sentencing entry stating the rape sentences are mandatory. State v. Johnson, 5th Dist.

Delaware No. 16CAA030011, 2016–Ohio–4617. Appellant did not appeal to the Supreme

Court of Ohio. Instead, Appellant filed a motion for reconsideration which this court denied

on October 20, 2016.

{¶10} On June 24, 2016, the trial court issued a nunc pro tunc judgment entry as

directed by this court.

{¶11} On July 21, 2016, Appellant filed a second motion for resentencing which

the trial court denied on July 22, 2016. Appellant filed an appeal from the entry in Fifth

District Case No. 2016CAA08033. Delaware County, Case No. 16 CAA 100045, 16 CAA 100046 4

{¶12} On August 23, 2016, Appellant filed a motion to strike the June 24, 2016

nunc pro tunc correction of the sentencing entry for lack of subject matter jurisdiction and

fraud upon the court.

{¶13} On the same date, Appellant filed a third motion for resentencing based on

the unconstitutionality of statute, rendering the judgment void and voidable.

{¶14} The trial court denied the motion for resentencing and the motion to strike

on August 23, 2016. Appellant filed an appeal to this Court in Case No. 2016CAA080037.

{¶15} On October 3, 2016, Appellant filed a first motion for relief from judgment or

order pursuant to Ohio Civil Rule 60(B). The trial court denied the motion via Judgment

Entry of October 4, 2016.

{¶16} On October 12, 2016, Appellant filed a second motion for relief from

judgment or order pursuant to Ohio Civil Rule 60(B). The motion was denied via Judgment

Entry of October 13, 2016.

{¶17} In Appellate Number 16CAA100045, Appellant filed an appeal from the

October 4, 2016 judgment entry denying his first motion for relief from judgment or order

pursuant to Ohio Civil Rule 60(B).

{¶18} In Appellate Number 16CAA100046, Appellant filed an appeal from the

October 13, 2016 Judgment Entry.

{¶19} Both appeals were assigned to this Court's accelerated calendar. Pursuant

to Ohio Appellate Rule 11.1(E),

(E) Determination and Judgment on Appeal. The appeal will be

determined as provided by App. R. 11.1. It shall be sufficient compliance Delaware County, Case No. 16 CAA 100045, 16 CAA 100046 5

with App. R. 12(A) for the statement of the reason for the court's decision

as to each error to be in brief and conclusionary form.

The decision may be by judgment entry in which case it will not be

published in any form. (See Form 3, Appendix of Forms.)

Ohio App. R. 11.1

{¶20} In Case No. 16CAA100045, Appellant assigns as error,

DEFENDANT-APPELLANT'S FUNDAMENTAL & SUBSTANTIAL

RIGHT TO A FAIR TRIAL UNDER EQUAL PROTECTION, SUBSTANTIVE

AND PROCEDURAL DUE PROCESS OF THE LAW, GUARANTEED BY

THE 14TH AMENDMENT TO THE UNITED STATES CONSTITUTION;

ARTICLE I, SECTION 2 & 16 OF THE OHIO CONSTITUTION, WAS

VIOLATED; WHEN THE TRIAL COURT FAILED TO COMPLY WITH

STATUTORY PRIVISIONS [SIC], CONTRARY TO OHIO EVID. R. 104(A);

EVID. R. 601(A); R.C. 2317.01; THEREBY, FAILING TO SUA SPONTE

CHECK THE COMPETENCY OF A PRESUMED MENTALLY

INCOMPETENT & DISABLED ALLEGED VICTIM WITNESS PRIOR TO

RECEIVING HER TESTIMONY AT TRIAL; THEREFORE, THE COURT

LACKED THE JURISDICITON TO RECEIVE THE TESTIMONY,

RENDERING IT INADMISSIBLE AND APPELLANT'S CONVICTION VOID

AB INITIO; THUS, RESULTING IN FRAUD UPON THE COURT, Delaware County, Case No. 16 CAA 100045, 16 CAA 100046 6

MANIFEST, PLAIN PREJUDICIAL ERROR & A MISCARRIAGE OF

JUSTICE.

{¶21} In Case No. 2016CAA100046, Appellant assigns as error,

RIGHT TO A [SIC] IMPARTIAL JURY AND FAIR TRIAL UNDER EQUAL

PROTECTION, SUBSTANTIVE AND PROCEDURAL DUE PROCESS OF

THE LAW, GUARANTEED BY THE 6TH & 14TH AMENDMENTS TO THE

UNITED STATES CONSTITUTION; WAS VIOLATED; WHEN THE TRIAL

COURT FAILED TO SUA SPONTE VOIR DIRE THE JURY ON THE BASIS

OF RACIAL PREJUDICE OR BIAS, RESULTING IN PLAIN PREJUDICIAL

ERROR & A MISCARRIAGE OF JUSTICE.

{¶22} Upon review of Appellant's arguments, Appellant's complained of errors do

not result in the trial court's lack of jurisdiction, nor do the alleged errors render Appellant's

convictions void. Therefore, we find Appellant's arguments barred under the doctrine of

res judicata, as the issues were raised or capable of being raised on direct appeal. Delaware County, Case No. 16 CAA 100045, 16 CAA 100046 7

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

By: Hoffman, J.

Farmer, P.J. and

Delaney, J. concur Delaware County, Case No. 16 CAA 100045, 16 CAA 100046 8