State v. Mason

2022 Ohio 2443

• Court: Ohio Court of Appeals
• Decided: July 14, 2022
• Docket: CT2022-0020
• Status: Published

Opinion

[Cite as State v. Mason, 2022-Ohio-2443.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. Earle E. Wise, Jr., P. J. Plaintiff-Appellee Hon. W. Scott Gwin, J. Hon. John W. Wise, J. -vs- Case No. CT2022-0020 TROY A. MASON

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. CR2017-0129

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: July 14, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellee

RONALD L. WELCH TROY MASON PROSECUTING ATTORNEY PRO SE TAYLOR P. BENNINGTON 15708 McConnelsville Road ASSISTANT PROSECUTOR Caldwell, Ohio 43724 27 North Fifth Street, P.O. Box 189 Zanesville, Ohio 43701 Muskingum County, Case No. CT2022-0020 2

Wise, John, J.

{¶1} Defendant-Appellant Troy A. Mason appeals from the March 3, 2022,

decision of the Muskingum County Court of Common Pleas, denying his Motion to

Correct an Illegal Sentence.

{¶2} Appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶3} The relevant facts leading to this appeal are as follows.

{¶4} Between July 2014 and December 2016, Appellant Mason was charged and

convicted in eight misdemeanor cases filed in the Zanesville Municipal Court.

Throughout the various arrests, processing, and prosecution stages of these

misdemeanor cases, Appellant pretended to be his brother, Robert Mason. Appellant

accordingly signed certain complaints, jail records, affidavits, and guilty plea forms with

Robert's name. Appellant later confessed to law enforcement officials that he had used

his brother's name in this fashion.

{¶5} On March 29, 2017, Appellant Mason was indicted by the Muskingum

County Grand Jury on eight (8) felony counts of tampering with records, in violation of

R.C. §2913.42(A)(1), and twenty-five (25) felony counts of forgery, in violation of R.C.

§2913.31(A)(2). Appellant pled not guilty, and the matter proceeded to a jury trial on

August 29, 2017. Prior to going forward, the State dismissed Count 30, one of the forgery

counts.

{¶6} After hearing the evidence and arguments, the jury found Appellant guilty

of twenty-four (24) counts of forgery and eight (8) counts of tampering with records. Muskingum County, Case No. CT2022-0020 3

{¶7} On September 8, 2017, Appellant filed a Crim.R. 29(C) motion for acquittal

after the verdict, which the trial court denied via a judgment entry on September 11,

2017.

{¶8} At sentencing, the State and Appellant stipulated to merger of offenses as

follows:

Count 1 (tampering with records) was merged with Counts 2, 3, 4, 5,

and 6 (all forgery).

Count 7 (tampering with records) was merged with Counts 8, 9, and

10 (all forgery).

Count 11 (tampering with records) was merged with Counts 12, 13,

14, and 15 (all forgery).

Count 16 (tampering with records) was merged with Counts 17, 18

and 19 (all forgery).

Count 20 (tampering with records) was merged with Counts 21, 22,

23, 24, and 25 (all forgery).

Count 26 (tampering with records) was merged with Counts 27 and

28 (both forgery).

Count 29 (tampering with records) was merged with Count 31

(forgery).

Count 32 (tampering with records) was merged with Count 33

{¶9} Although the State and Appellant proposed a jointly recommended

sentence of five (5) years in prison, the trial court rejected same and by Judgment Entry Muskingum County, Case No. CT2022-0020 4

filed October 10, 2017, sentenced Appellant to serve eight (8) consecutive eighteen (18)

month terms, for an aggregate prison sentence of twelve (12) years. A nunc pro tunc

sentencing entry, correcting a scrivener’s error, was issued on October 25, 2017.

{¶10} On November 9, 2017, Appellant appealed to this Court, which by Opinion

and Entry filed August 27, 2018, upheld his convictions and sentence and affirmed the

judgment of the trial court. See State v. Troy A. Mason, 5th Dist. Muskingum County No.

CT2017-0083, 2018-Ohio-3329.

{¶11} On October 23, 2018, Appellant filed an application to reopen pursuant to

App.R. 26(B).

{¶12} On January 14, 2019, this Court denied said application.

{¶13} On January 25, 2019, Appellant filed a motion for reconsideration.

{¶14} On April 15, 2019, this Court denied Appellant's motion.

{¶15} On May 22, 2019, Appellant filed a notice of appeal to the Ohio Supreme

Court.

{¶16} On October 3, 2019, Appellant's motion was denied, and the Supreme

Court declined to accept jurisdiction.

{¶17} On February 28, 2022, Appellant filed a motion to correct an illegal sentence

with the trial court.

{¶18} On March 3, 2022, the trial court denied Appellant's motion.

{¶19} Appellant now appeals, raising the following errors for review:

ASSIGNMENTS OF ERROR

{¶20} “I. TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT’S

“MOTION TO CORRECT AN ILLEGAL SENTENCE. Muskingum County, Case No. CT2022-0020 5

{¶21} “II. TRIAL COURT ERRED IN FAILING TO CORRECT DEFENDANT-

APPELLANT’S ILLEGAL SENTENCES AS FELONIES IN VIOLATION OF R.C.

2913.42(A)(1) FOR COUNTS 1, 7, 11, 16, 20, 26, 29 AND 32. THE CASE NUMBERS

FOR THE AFOREMENTIONED COUNTS ARE FOR MISDEMEANORS.”

I., II.

{¶22} In his two Assignments of Error, Appellant argues the trial court erred in

denying his motion to correct an illegal sentence. We disagree.

{¶23} Appellant's motion to correct his sentence is actually a petition for post-

conviction relief under R.C. §2953.21. Where a criminal defendant, subsequent to direct

appeal, files a motion seeking to vacate or correct his sentence on the basis that his

constitutional rights were violated, such a motion is a petition for post-conviction relief

under R.C. §2953.21. State v. Reynolds, 79 Ohio St.3d 158, 160, 679 N.E.2d 1131,

1997-Ohio-304.

{¶24} R.C. §2953.21 provides a petition for post-conviction relief must be filed no

later than 180 days after the date on which the trial transcript is filed in the Court of

Appeals in the direct appeal, or if no appeal is taken, no later than 180 days after the

expiration of the time for filing the appeal.

{¶25} Here, Appellant pursued his direct appeal in November, 2017. His

motion/petition was filed more than four years later. A trial court has no jurisdiction to

hear an untimely petition for post-conviction relief unless the movant meets requirements

set out in R.C. §2953.23(A). State v. Walker, 5th Dist. No. 12–CAA–020010, 2012–Ohio–

3095, citing State v. Demastry, 5th Dist. No. 05CA–14, 2005–Ohio–4962 ¶ 15. Muskingum County, Case No. CT2022-0020 6

{¶26} Furthermore, under the doctrine of res judicata, a final judgment of

conviction bars a convicted defendant who was represented by counsel from raising and

litigating in any proceeding, other than a direct appeal from the judgment, any defense

or lack of due process that was raised or could have been raised at the trial which

resulted in the judgment of conviction, or on appeal from that judgment. State v. Szefcyk,

77 Ohio St.3d 93, 1996–Ohio–337, 671 N.E.2d 233, syllabus.

{¶27} Upon review, we find that the issues raised by Appellant in his motion to

correct his sentence and in the instant appeal are issues which were cognizable on direct

appeal from his judgment of conviction and sentence, and Appellant's collateral attack

on the judgment on these grounds is barred by res judicata. State v. Perry (1967), 10

Ohio St.2d 175, 226 N.E.2d 104, paragraph nine of the syllabus. Appellant could have

raised the claimed error in the sentencing entry in his direct appeal, but failed to do so.

{¶28} Accordingly, Appellant's Assignments of Error are overruled.

{¶29} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Muskingum County, Ohio, is hereby affirmed.

By: Wise, John, J. Wise, Earle, P. J., and Gwin, J., concur.

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