State v. Wright

2021 Ohio 610

• Court: Ohio Court of Appeals
• Decided: March 5, 2021
• Docket: 2020-CA-33
• Status: Published

Opinion

[Cite as State v. Wright, 2021-Ohio-610.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2020-CA-33 : v. : Trial Court Case No. 1998-CR-364 : TIMOTHY D. WRIGHT : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 5th day of March, 2021.

ANDREW P. PICKERING, Atty. Reg. No. 0068770, Assistant Prosecuting Attorney, Clark County Prosecutor’s Office, Appellate Division, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee

TIMOTHY D. WRIGHT, #A372-201, P.O. Box 57, Marion, Ohio 43302 Defendant-Appellee, Pro Se

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HALL, J. -2-

{¶ 1} Timothy D. Wright appeals pro se from the trial court’s judgment overruling

his “motion for resentencing.”

{¶ 2} Wright advances two assignments of error. First, he contends the trial court

erred in overruling his motion to be resentenced. Second, he claims the trial court erred

in “allowing an indictment which violated [his] rights to notice and his rights to be protected

from double jeopardy.”

{¶ 3} The record reflects that Wright was convicted in 1999 on two counts of

abduction, one count of aggravated assault, one count of corruption of a minor, one count

of felonious sexual penetration, five counts of gross sexual imposition, and four counts of

rape. This court affirmed his conviction on direct appeal in State v. Wright, 2d Dist. Clark

No. 99CA0011, 2000 WL 679142 (May 26, 2000). Wright unsuccessfully sought various

forms of post-conviction relief, including a motion to modify sentence, a motion to vacate

judgment, a motion for judicial release, and a motion to arrest judgment. Most recently,

Wright filed his motion for resentencing on July 6, 2020. Therein, he argued that the jury’s

verdict forms were defective, that allied offenses existed, and that his indictment was

defective. For these reasons, he alleged the existence of a void final judgment and

requested resentencing. The trial court summarily overruled the motion. This appeal

followed.

{¶ 4} In his first assignment of error, Wright contends his sentence is void because

the jury’s verdict forms did not comport with R.C. 2945.75(A)(2). He also asserts that rape

and gross sexual imposition were allied offenses of similar import. In his second

assignment of error, Wright claims he was indicted on multiple undifferentiated counts of -3-

rape and gross sexual imposition. He claims the indictment, a bill of particulars, the jury

instructions, and the verdict forms failed to distinguish these “carbon copy” charges in any

way. He argues that the indictment violated double jeopardy or due process and failed to

give him adequate notice of the conduct at issue in each charge. Although Wright did not

object to the indictment below, he claims plain error.

{¶ 5} Upon review, we see no error in the trial court’s overruling of Wright’s motion

for resentencing. To the extent that the motion in substance sought post-conviction relief

for constitutional violations, it was governed by R.C. 2953.21. Under that statute, Wright’s

motion was untimely because he did not file it within 365 days after the filing of his trial

transcript in his direct appeal. R.C. 2953.21(A)(2).1 In order to file a late petition, Wright

was required to establish, among other things, that he was “unavoidably prevented” from

discovering the facts upon which his claims relied. R.C. 2953.23(A).

{¶ 6} Wright was not unavoidably prevented from timely discovering the facts

supporting his motion for resentencing, and he does not suggest otherwise. Most of his

arguments address the contents of his indictment and the jury’s verdict forms, which have

been available since 1999. He also briefly raises an allied-offense argument. But the facts

supporting that claim also would have been known at the time of his 1999 trial and

sentencing. In any event, regardless of how we characterize Wright’s motion and

regardless of any timeliness problems, res judicata applies. Wright’s arguments all could

have been raised on direct appeal because they did not depend on any evidence outside

of the trial record.

1 At the time of Wright’s convictions, the time limit for filing a petition for post-conviction relief was only 180 days after the filing of the direct appeal transcript. -4-

{¶ 7} In order to overcome the foregoing deficiencies, Wright alleges voidness. But

the issues he raises would not render the jury’s verdict or his sentence void. With regard

to the verdict forms, Wright cites R.C. 2945.75(A)(2), which provides that “[w]hen the

presence of one or more additional elements makes an offense one of more serious

degree: * * * [a] guilty verdict shall state either the degree of the offense of which the

offender is found guilty, or that such additional element or elements are present.

Otherwise, a guilty verdict constitutes a finding of guilty of the least degree of the offense

charged.” It is not readily apparent how this statute had any applicability in Wright’s case.

But even if it did apply, a verdict form’s failure to state the degree of the offense or to state

an additional element does not render a sentence void. Any error in failing to comply with

R.C. 2945.75(A)(2) might make a sentence voidable, but not void. Therefore, res judicata

applies. State v. Evans, 2d Dist. Montgomery No. 26574, 2015-Ohio-3161, ¶ 11.

{¶ 8} A failure to merge allied offenses, or to make any finding on the issue,

likewise does not render a sentence void. State ex rel. Romine v. McIntosh, Ohio Slip

Opinion No. 2020-Ohio-6826, __ N.E.3d __, ¶ 12-15. Therefore, the issue must be raised

on direct appeal, and res judicata applies. Id.

{¶ 9} Finally, Wright’s complaint about “carbon copy” counts in his indictment fails

to overcome res judicata. A claim that multiple counts in an indictment were identical does

not result in a conviction or sentence being void. State v. Lowery, 2d Dist. Montgomery

No. 24198, 2011-Ohio-2827, ¶ 14-22. Once again, the issue must be raised on direct

appeal, and res judicata applies. Id. Contrary to the assertion in Wright’s appellate brief,

claiming “plain error” does not defeat the doctrine of res judicata. State v. Dominguez, 2d

Dist. Montgomery No. 26853, 2016-Ohio-5051, ¶ 10. -5-

{¶ 10} For the foregoing reasons, we overrule Wright’s assignments of error and

affirm the judgment of the Clark County Common Pleas Court.

TUCKER, P. J. and DONOVAN, J., concur.

Copies sent to:

Andrew P. Pickering Timothy D. Wright Hon. Douglas M. Rastatter