State v. Ramirez

2012 Ohio 3752

• Court: Ohio Court of Appeals
• Decided: August 20, 2012
• Docket: 4-12-01
• Status: Published

Opinion

[Cite as State v. Ramirez, 2012-Ohio-3752.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT DEFIANCE COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 4-12-01 v.

MOISES RAMIREZ, OPINION

DEFENDANT-APPELLANT.

Appeal from Defiance County Common Pleas Court Trial Court No. 6111

Judgment Affirmed

Date of Decision: August 20, 2012

APPEARANCES:

Moises Ramirez, Appellant

Russell R. Herman and Morris J. Murray for Appellee Case No. 4-12-01

SHAW, P.J.

{¶1} Defendant-appellant, Moises Ramirez (“Ramirez”), appeals the

judgments of the Defiance County Court of Common Pleas overruling his “Motion

to Correct Defendant’s Void Sentence Pursuant to [R.C.] 2947.23(A)(1)(a)&(b)”

and his “Motion for Finding [sic] of Fact and Conclusions of Law.”

{¶2} In 1994, Ramirez was convicted by a Defiance County jury for one

count of rape, five counts of felonious sexual penetration, seven counts of gross

sexual imposition, and one count of sexual imposition. The underlying details of

the conviction stem from Ramirez’s repeated sexual abuse of his daughter, his

niece, and his daughter’s friend. The sexual acts occurred over a period of time

when two of the victims, Ramirez’s daughter and niece, were both under the age

of thirteen, and when the third victim, his daughter’s friend, was over the age of

thirteen but less than the age of sixteen. Ramirez was sentenced to an indefinite

prison term of fifteen to fifty years. Ramirez subsequently appealed his

conviction, which was affirmed by this Court in State v. Ramirez I, 98 Ohio

App.3d 388 (3d Dist. 1994).

{¶3} Seventeen years later, on October 19, 2011, Ramirez filed his “Motion

to Correct Defendant’s Void Sentence Pursuant to [R.C.] 2947.23(A)(1)(a)&(b),”

which the trial court subsequently overruled.

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{¶4} On November 2, 2011, Ramirez filed his “Motion for Finding [sic] of

Fact and Conclusions of Law” regarding the trial court’s overruling of his “Motion

to Correct Defendant’s Void Sentence Pursuant to [R.C.] 2947.23(A)(1)(a)&(b),”

which was also overruled by the trial court.

{¶5} On November 8, 2011, Ramirez filed this appeal asserting the

following assignments of error.

ASSIGNMENT OF ERROR NO. I

THE TRAIL [SIC] COURT ABUSED IT’S [SIC] DISCRETION AND COMMITTED REVERSIBLE ERROR IN DENYING APPELLANT’S MOTION TO CORRECT DEFENDANT’S VOID SENTENCE PURSUANT TO OHIO REVISED CODE § 2947.23(A)(1), SECTIONS (a) & (b), IN FINDING SAID MOTION NOT WELL TAKEN AND REFUSING DEFENDANT’S MOTION FOR FINDINGS OF FACTS AND CONCLUSION [SIC] OF LAW.

ASSIGNMENT OF ERROR NO. II

APPELLANT WAS DENIED EQUAL PROTECTION OF THE LAW BY THE STATE OF OHIO.

ASSIGNMENT OF ERROR NO. III

APPELLANT WAS DENIED HIS RIGHT TO THE OHIO CONSTITUTION UNDER SECTION 10, ARTICLE 1, (EQUAL PROTECTION AND BENEFIT) INTERVENING DECISION.

ASSIGNMENT OF ERROR NO. IV

APPELLANT HAS [SIC] INEFFECTIVE ASSISTANCE OF COUNSEL UPON HIS FIRST APPEAL.

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First Assignment of Error

{¶6} In his first assignment of error, Ramirez argues that the trial court

erred when it overruled his “Motion to Correct Defendant’s Void Sentence

Pursuant to [R.C.] 2947.23(A)(1)(a)&(b)” and his “Motion for Finding [sic] of

Fact and Conclusions of Law.” As the basis for his motion to correct his sentence

and this assignment of error, Ramirez repeatedly references his 2009 case in

Richland County, which involved the administrative “reclassification” of

incarcerated defendants by the Ohio Attorney General under the newly passed

legislation of Ohio’s Adam Wash Act.1 See State v. Ramirez II, 5th Dist. No. 08

CA 284, 2009-Ohio-5005.

{¶7} Pursuant to R.C. 2950.031(E) and 2950.032(E), Ramirez challenged

his administrative “reclassification” by the Ohio Attorney General as a Tier III

Sexual Offender in the Richland County Court of Common Pleas. Ramirez II at ¶

2. The merits of Ramirez’s 2009 case concerning his sex offender classification

were ultimately decided by the Fifth Appellate District. Ramirez II at ¶ 24.

{¶8} Ramirez now contests his classification as a sex offender in the

Richland County case. Specifically, Ramirez claims his “sentence” is void

because he was never properly notified by the Richland County Court in 2009 that

he may be subject to community service if he fails to pay his court costs pursuant

1 At this time, Ramirez was an inmate at the Mansfield Correctional Institute located in Richland County.

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to R.C. 2947.23(A)(1)(a) &(b).2 Notably, in his motion to correct his sentence,

Ramirez does not raise any issues with the original sentence imposed by the

Defiance County Court in 1994.

{¶9} In conducting our review of this appeal, it is apparent that all of

Ramirez’s complaints raised in his motion to correct his sentence filed with the

Defiance County Court pertain to his classification as a sex offender in the

Richland County case—a case which is not within our jurisdiction. Moreover,

there is no reference to Ramirez’s sex offender classification in the Richland

County case contained in the Defiance County record before us. Rather, there are

no filings in the Defiance County record from 1999 to 2011, when Ramirez filed

his “Motion to Correct Defendant’s Void Sentence Pursuant to [R.C.]

2947.23(A)(1)(a)&(b)” to institute these proceedings.

{¶10} Accordingly, because Ramirez has failed to raise any error in his

“Motion to Correct Defendant’s Void Sentence Pursuant to [R.C.]

2947.23(A)(1)(a) &(b)” pertaining to a judgment issued by the Defiance County

Court, we find no abuse of discretion in the Defiance County Court’s decision to

overrule Ramirez’s motion to correct his sentence. Therefore, we also conclude

that the Defiance County Court did not abuse its discretion in overruling

2 We note that Ramirez failed to cite any case law standing for the proposition that a trial court’s failure to comply with the community service notifications in R.C. 2947.23(A)(1)(a) &(b) renders a sentence void.

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Ramirez’s “Motion for Finding [sic] of Fact and Conclusions of Law,” which was

filed based on that court overruling his motion to correct his sentence.

{¶11} Ramirez’s first assignment of error is overruled.

Second, Third, and Fourth Assignments of Error

{¶12} In the remaining assignments of errors, Ramirez asserts arguments

relating to the constitutionality of his “reclassification” as a Tier III Sexual

Offender in his 2009 Richland County case. Ramirez also raises issues relating to

his 1994 jury conviction in his Defiance County case. Specifically, Ramirez

claims the Defiance County Court committed several errors during his 1994 jury

trial, and Ramirez also claims he received ineffective assistance of counsel at the

1994 jury trial.

{¶13} For the reasons stated above, this Court will not address Ramirez’s

arguments relating to his sex offender classification in his 2009 Richland County

case. Ramirez’s arguments on appeal as they relate to his 1994 conviction by a

jury in the Defiance County case are now barred by res judicata because Ramirez

had the opportunity to raise these issues in 1994 on his direct appeal of that

judgment of conviction. “Under the doctrine of res judicata, a final judgment of

conviction bars the convicted defendant 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

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trial that resulted in that judgment of conviction or on an appeal from that

judgment.” State v. Perry (1967), 10 Ohio St.2d 175, 180. It is well established

that res judicata bars the consideration of issues that could have been raised on

direct appeal. State v. Saxon, 109 Ohio St.3d 176, 2006–Ohio–1245 at ¶ 16–17.

Moreover, there is nothing in the record, nor does Ramirez make any argument,

justifying his seventeen-year delay in raising these issues.

{¶14} Based on the foregoing, Ramirez’s second, third, and fourth

assignments of error are overruled and the judgments of the Defiance County

Court of Common Pleas are affirmed.

Judgments Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr

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