[Cite as State v. Payton, 2022-Ohio-1726.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
STATE OF OHIO, : : Case No. 21CA3952 Plaintiff-Appellee, : : v. : DECISION AND JUDGMENT : ENTRY DANIEL G. PAYTON, : : Defendant-Appellant. :
APPEARANCES:
Daniel G. Payton, Chillicothe, Ohio, Appellant Pro Se.
Shane A. Tieman, Scioto County Prosecuting Attorney, and Jay Willis, Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appellee.
Smith, P.J.
{¶1} Daniel G. Payton appeals the June 4, 2021 “Judgment Entry on Motion
to Set Aside and Vacate Plea,” in which his underlying motion was denied by the
Scioto County Court of Common Pleas. Because we have characterized Payton’s
“Motion to Set Aside and Vacate Plea” as an untimely-filed petition for
postconviction relief, we conclude the trial court lacked jurisdiction to entertain
the constitutional claims raised in his motion, and his motion should have been
dismissed. Consequently, the judgment of the trial court is modified in order to
reflect that his constitutional claims should have been dismissed for lack of Scioto App. No. 21CA3952 2
jurisdiction. See State v. Bear, 4th Dist. Gallia No. 20CA9, 2021-Ohio-1539, at
fn1. Further, because Payton has abandoned his arguments made in the trial court
and has raised a “Megan’s Law” argument for the first time in this appeal, we find
this argument to be barred by waiver and application of the doctrine of res judicata.
Accordingly, Payton’s appeal is dismissed.
FACTUAL AND PROCEDURAL BACKGROUND
{¶2} The brief facts summarizing the underlying trial court case were
previously set forth in State v. Payton, 4th Dist. Scioto No. 17CA3793, 2018-Ohio-
1376, at ¶¶ 3-4 “Payton I.” The Scioto County Grand Jury returned an indictment
charging Daniel G. Payton with aggravated murder and rape. Payton subsequently
pled guilty to both counts. In October 2005, the court entered a judgment
convicting Payton upon his guilty pleas, after finding his plea was voluntary, and
was knowingly and intelligently made. The trial court proceeded to sentence
Payton to a prison term of 20 years to life for aggravated murder and nine years for
rape. These sentences were ordered to run consecutively, and also to run
consecutive to a 30-year prison term Payton was already serving for other rape
crimes. Payton did not file a direct appeal from the 2005 sentencing entry.
{¶3} In 2016, Payton filed a “Verified Motion to Correct Sentence,” in
which he conceded that he was not “challenging his convictions nor his guilty
plea.” Rather, Payton contended that his sentence was “contrary to law” because it Scioto App. No. 21CA3952 3
was not an “agreed sentence.” He contended that it was “open sentencing” and the
trial court “erred in sentencing him to mandatory, more than minimum, and
consecutive terms” without including “the required language to impose mandatory
or consecutive terms” that he argued were mandatory under R.C. 2929.13(F) and
R.C. 2929.14(E)(4). Payton also claimed that the trial court failed to notify him in
the sentencing entry of his right to appeal those parts of his sentence that were
contrary to law.
{¶4} The trial court denied Payton’s motion to correct his sentence, noting
that it had reviewed the record and found that Payton “specifically acknowledged
that if the Court accepted the guilty plea that the jointly recommended sentence
was what he received” and that the Court “sentenced exactly according to the very
recommendation [Payton] was jointly making.” The trial court also found that
before accepting Payton’s guilty plea, it reviewed the terms of the agreement and
explicitly asked Payton if he understood the agreement and determined that he had
entered into the agreement knowingly, intelligently, and voluntarily. The Court
also found that because the sentence was a jointly recommended sentence, the
court was not required to make consecutive-sentence findings in order for the
sentence to be authorized by law and not appealable. In the alternative, the Court
noted that it did make the requisite sentencing findings even though it did not need
to do so. Payton appealed this decision. Scioto App. No. 21CA3952 4
{¶5} In this Court’s decision affirming the trial court in Payton I, we
observed that the record contains the trial court’s unrebutted statement in Payton’s
2004 sentencing entry that the sentence imposed constituted an agreed sentence.
Id. at ¶ 9. We also observed that Payton signed a written plea agreement, a
“waiver of rights,” and an “acknowledgment of penalties.” Id. We found that the
trial court properly imposed a prison term within the statutory range for Payton’s
rape conviction and that the trial court made the requisite findings to impose
consecutive sentences for rape convictions. Id. at ¶ 13. Finally, we also found the
trial court did not violate R.C. 2953.08 by failing to notify Payton in the sentencing
entry that he could appeal his agreed sentence if he believed it to be contrary to
law. Id. at ¶ 14. We concluded that Payton’s motion to correct sentence was
meritless and that the trial court did not err by holding that his agreed sentence was
not reviewable and thus, did not err by denying the motion. Id. at ¶ 15.
Accordingly, we affirmed the trial court’s decision.
{¶6} On May 20, 2021, Payton filed a “Motion to Set Aside Judgment and
Vacate Plea.” In the motion, Payton asserted that the plea hearing of October 2005
was contrary to law as well as statutory and constitutional authority, and that his
plea was tainted and his sentence void because: (1) the trial court had no statutory
authority to impose postrelease control (PRC) in his case and (2) no three-judge
panel had presided over his plea as required by Crim.R. 11, and therefore, the trial Scioto App. No. 21CA3952 5
court did not have jurisdiction to accept this plea or sentence him. On June 4,
2021, the trial court denied this motion.
{¶7} In the trial court’s Judgment Entry on Motion to Set Aside Judgment
and Vacate Plea, the appealed-from entry herein, the trial court observed:
The Defendant was originally charged with aggravated murder with two specifications. The Court dismissed the second specification in May 2005. Thus, on October 27, 2005, Count One charged aggravated murder, with one specification. The Court then accepted the plea and dismissed the remaining specification. * * * Thus, no three-judge court was required and the acceptance of the plea of guilty was appropriate and in accordance with Criminal Rule 11.1 * * * As to Defendant’s contention that he was not subject to mandatory PRC, the Defendant misreads the record. In fact, the Sentencing Entry of October 27, 2005 specifically states that PRC was mandatory for up to five years on Count Two. The Court did not impose PRC on Count One. As such, the Defendant’s contention is incorrect and the sentence is valid.
{¶8} This appeal followed.
ASSIGNMENT OF ERROR
I. THE LOWER COURT COMMITTED PREJUDICIAL ERROR IN FAILING TO VACATE THE TAINTED PLEA.
A. STANDARD OF REVIEW
1 The trial court specifically noted that Payton’s case squarely fit the exception for acceptance of a plea of guilty pursuant to Crim.R. 11(C)(3), which provides an exception to the requirement for a three-judge panel when “if the indictment contains one or more specifications, and a plea of guilty or no contest to the charge is accepted, the court shall impose the sentence provided by law” and found acceptance of his plea was proper. Scioto App. No. 21CA3952 6
{¶9} A trial court's decision granting or denying a postconviction petition
filed pursuant to R.C. 2953.21 is reviewed for an abuse of discretion and a
reviewing court should not overrule the trial court's finding on a petition for
postconviction relief that is supported by competent, credible evidence. See State
v. Bear, supra, at ¶ 13; State v. Bennington, 4th Dist. Adams No. 12CA956, 2013-
Ohio-3772, ¶ 8, citing State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860
N.E.2d 77, ¶ 45. The term “abuse of discretion” connotes more than an error of
judgment; it implies the court's attitude is unreasonable, arbitrary, or
unconscionable. Id., citing State v. Adams, 623 Ohio St.2d 151, 157, 404 N.E.2d
144 (1980).
B. LEGAL ANALYSIS
{¶10} We begin with a discussion of “irregular motions” and the import of
these motions being timely filed and supported. As explained in State v. Brown,
4th Dist. Scioto No. 16CA3770, 2017-Ohio-4063, ¶ 18, “ ‘ “[c]ourts may recast
irregular motions into whatever category necessary to identify and establish the
criteria by which the motion should be judged.” ’ ” Id., quoting State v. Burkes,
4th Dist. Scioto No. 13CA3582, 2014-Ohio-3311, ¶ 11, in turn quoting State v.
Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12. “An irregular
motion may meet the definition of a petition for postconviction relief set forth in
R.C. 2953.21(A)(1), if the motion was ‘ “(1) filed subsequent to [defendant's] Scioto App. No. 21CA3952 7
direct appeal, (2) claimed a denial of constitutional rights, (3) sought to render the
judgment void, and (4) asked for vacation of the judgment and sentence.” ’ ” State
v. Bear, supra, at ¶ 10, quoting State v. Brown, 4th Dist. Scioto No. 16CA3770,
2017-Ohio-4063, ¶ 19, quoting State v. Reynolds, 79 Ohio St. 3d 158, 679 N.E.2d
1131, at 160.
{¶11} Here we construe Payton’s “Motion to Set Aside Judgment and
Vacate Plea” as an irregular motion seeking postconviction relief. The motion
claimed a denial of Payton’s constitutional rights, sought to render the sentence
void, and asked for vacation of his plea and the judgment. However, there are
timelines for the filing of such motions.
{¶12} R.C. 2953.21(A)(2)(a) provides that a petition for postconviction
relief must be filed “no later than 365 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.” Payton was convicted in 2005 and did not pursue a
direct appeal. R.C. 2953.21(A)(2)(a) further provides: “If no appeal is taken,
except as otherwise provided in section 2953.23 of the Revised Code, the petition
shall be filed no later than 365 days after the expiration of the time for filing the
appeal.” Obviously, any motion pursuant to R.C. 2953.21 is time-barred.
{¶13} Additionally, R.C. 2953.23(A) provides that a court may not entertain
a petition filed after the expiration of the period prescribed in division R.C. Scioto App. No. 21CA3952 8
2953.21(A), or a second petition or successive petitions for similar relief on behalf
of a petitioner, (Payton’s motion is a second petition), unless division (A)(1) or (2)
applies.
(1) Both 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….”
R.C. 2953.23(A)(1).2
{¶14} Payton did not attach any supporting evidence which would entitle
him to relief under R.C. 2953.23. He did not show that he was unavoidably
prevented from the discovery of facts upon which he must rely, that the United
States Supreme Court recognized a new federal or state right that applies
retroactively to him, or that but for constitutional error, no reasonable factfinder
would have found him guilty of the offenses of which he was convicted. Thus, we
2 R.C. 2953.23(A)(2) is not applicable to Payton’s appeal Scioto App. No. 21CA3952 9
conclude that Payton’s motion is also an unsupported successive petition for
postconviction relief which the trial court had no jurisdiction to consider. Because
Payton’s motion was untimely and unsupported, rather than considering the merits
of Payton’s vague constitutional argument, the trial court should have dismissed
the motion.
{¶15} Even if Payton’s underlying motion was not deficient due to the
untimeliness under R.C. 2953.21 and lack of support under R.C. 2953.23, we
would also find his appeal to be barred by waiver and res judicata. Furthermore,
were we to consider the merits of his argument on appeal, we would find no merit.
In the underlying motion, Payton argued his sentence was void due to the lack of a
three-judge sentencing court and alleged incorrect imposition of PRC. On appeal,
Payton makes a completely different argument that the trial court had no
constitutional or statutory authority to impose a sentence that is contrary to law. In
this appeal, Payton specifically argues that the common pleas judge failed to
address the Chapter 2950 mandates for registration and sexual offender
classification under R.C. 2950.09(B)(1), “Megan’s Law,” which are part of the
penalty imposed upon him.
{¶16} Payton did not bring his “Megan’s Law” argument before the trial
court, and the arguments he did pursue in the underlying motion are not argued in
his appellate brief. “It is well-established that the ‘[f]ailure to raise at the trial Scioto App. No. 21CA3952 10
court level the issue of the constitutionality of a statute or its application, which
issue is apparent at the time of trial, constitutes a waiver of such issue and a
deviation from this state's orderly procedure, and therefore need not be heard for
the first time on appeal.’ ” State v. Althouse, 4th Dist. Ross No.16CA3578, 2018-
Ohio-780, at ¶ 11, quoting State v. Awan, 22 Ohio St.3d 120, 489 N.E.2d 277
(1986), syllabus. Therefore, Payton has waived any issue with regard to the
“Megan’s Law” notification and registration.
{¶17} Additionally, the doctrine of res judicata is applicable in all
postconviction relief proceedings and provides that: “ ‘a final judgment of
conviction bars a convicted defendant who was represented by counsel from
raising and litigating in any proceeding, except an appeal from that judgment, any
defense or any claimed lack of due process that was raised or could have been
raised by the defendant at the trial which resulted in that judgment of conviction, or
on an appeal from that judgment.’ ” State v. Boler, 4th Dist. Athens No. 18CA2,
2018-Ohio-3722, ¶ 19, quoting State v. Szefcyk, 77 Ohio St.3d 93,95, 671 N.E.2d
233 (1996). Payton could have raised any issue with regard to the court’s
obligations under “Megan’s Law” in a direct appeal and did not do so.
Consequently, Payton’s argument is now barred by res judicata.
{¶18} Finally, were we to consider Payton’s argument, we would find it to
be without merit. The “Megan’s Law” requirements are not considered to be part Scioto App. No. 21CA3952 11
of Payton’s sentence. The Supreme Court of Ohio has detailed the background of
the sex-offender classification system in Ohio, which we discussed at length in
State v. Megarry, 2018-Ohio-4242, 122 N.E. 3d 220, (4th Dist.) as follows:
In 1996, the General Assembly enacted “Megan's Law,” which revised R.C. Chapter 2950 and established a comprehensive system of classifying sex offenders into three categories: sexually oriented offenders, habitual sex offenders, and sexual predators. Former R.C. 2950.09, 146 Ohio Laws, Part II, 2618.
Then, in 2007, the General Assembly enacted the Adam Walsh Act, which ‘repealed Megan's Law, effective January 1, 2008, and replaced it with new standards for sex-offender classification and registration pursuant to the federal Adam Walsh Child Protection and Safety Act, Section 16901 et seq., Title 42, U.S. Code.’ Bundy v. State, 143 Ohio St.3d 237, 2015-Ohio-2138, 36 N.E.3d 158, ¶ 5. This scheme, which the General Assembly codified in R.C. Chapter 2950, divides sex offenders into Tier I, Tier II, and Tier III sex or child-victim offenders. R.C. 2950.01(E) through (G). In re Von, 146 Ohio St.3d 448, 2016- Ohio-3020, 57 N.E.3d 1158, ¶¶ 14-15.
Megarry, supra, at ¶ 15.
{¶19} This court further explained that under the Adam Walsh Act, the sex-
offender classification is part of the offender's criminal sentence. See Megarry,
supra, at ¶ 16; State v. Lawson, 1st Dist. Hamilton Nos. C-120077 and C-120067,
2012-Ohio-5281, at ¶ 18, citing State v. Williams, 129 Ohio St. 3d 344, 2011-Ohio-
3374, 952 N.E.2d 1108, at ¶¶ 10-20; State v. Halsey, 2016-Ohio-7990, 74 N.E.3d
915, ¶ 18 (12th Dist.) (“sex offender classification pursuant to the Adam Walsh
Act (“AWA”) amendments is punitive and therefore part of the ‘sentence’ ”). We Scioto App. No. 21CA3952 12
also observed that, similar to Payton’s convictions, Megarry's convictions stemmed
from a sex offense that occurred prior to the 2008 effective date of the Adam
Walsh Act; therefore, they were governed instead by Ohio's version of “Megan's
Law.” See McGarry, supra, at ¶ 17; Williams at ¶ 22 and Von at ¶ 16. We noted:
“Megan's Law” sex-offender classification proceedings are remedial instead of punitive, civil in nature, and not part of the criminal sentence; See State v. Bates, 5th Dist. Guernsey No. 13CA9, 2013-Ohio-4768, ¶ 28, citing State v. Cook, 83 Ohio St.3d 404, 700 N.E.2d 570 (1998), and Williams (“the Ohio Supreme Court determined that the classification scheme contained in former R.C. 2950 (“Megan's Law”) is civil in nature and has the valid remedial and non-punitive purpose of protecting the public. * * * Under “Megan's Law,” the sexual offender classification is not part of a defendant's sentence or underlying criminal conviction but is a civil action within the underlying criminal case”). “[U]nlike correcting a sentence already served, addressing classification and registration requirements according to “Megan's Law” is different because such requirements are ‘collateral consequence[s] of the offender's criminal acts rather than a form of punishment per se.’ ” State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824 [896 N.E.2d 110], ¶ 34, (superseded by statute as stated in State v. Jarvis, Ohio Slip Opinion No. 2021-Ohio-3712, --N.E.3d --.)
See Megarry, supra, at ¶ 17; State v. Sturgill, 2017-Ohio-2736, 90 N.E. 3d 44, at
¶ 18 (4th Dist.), citing State v. Bell, 12th Dist. Clermont No. CA2015-10-077,
2016-Ohio-7363, at ¶ 12.
{¶20} Based on the foregoing, were we to consider Appellant’s argument
that his sentence is contrary to law, we would find no merit. In general, a trial
court is not obligated to inform a defendant about collateral consequences before Scioto App. No. 21CA3952 13
accepting a plea, and its failure to do so does not render the plea invalid. See State
v. Wright, 2d Dist. Montgomery No. 28368, 2021-Ohio-04107, at ¶ 26, citing State
v. Stape, 2d Dist. Montgomery No. 22586, 2009-Ohio-420, at ¶ 19. Given that the
“Megan’s Law” requirements are collateral in nature and not part of Payton’s
criminal sentence, any failure to apprise Payton of these requirements does not
render his plea invalid.
{¶21} We conclude that the trial court had no jurisdiction to consider
Payton’s postconviction motion, which was not timely under R.C. 2953.21 or
supported under R.C. 2953.23. The motion should have been dismissed. Were we
to consider Payton’s claim alleging a failure to inform him of the requirements of
“Megan’s Law,” we would find his argument is barred by waiver, by application of
the doctrine of res judicata, and otherwise without merit. Accordingly, we affirm
the judgment of the trial court but modify it to reflect that Payton’s motion to set
aside the judgment and vacate his plea should have been dismissed. See Bear,
supra, at ¶ 41. Payton’s appeal is dismissed.
JUDGMENT MODIFIED. APPEAL DISMISSED. Scioto App. No. 21CA3952 14
JUDGMENT ENTRY
It is ordered that the APPEAL BE DISMISSED AND JUDGMENT BE MODIFIED to reflect dismissal of the underlying untimely petition for Judgment Entry on Motion to Set Aside and Vacate Plea. Appellee shall recover any costs from Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed 60 days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 60-day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of 60 days, the stay will terminate as of the date of such dismissal.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, J. and Hess, J., concur in Judgment and Opinion.
For the Court,
_______________________________ Jason P. Smith Presiding Judge
NOTICE TO COUNSEL Scioto App. No. 21CA3952 15
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.