State v. Bryant , 2013 Ohio 4996 ( 2013 )

[Cite as State v. Bryant, 2013-Ohio-4996.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26774
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
RAMON R. BRYANT COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 2004 05 1527
DECISION AND JOURNAL ENTRY
Dated: November 13, 2013
HENSAL, Judge.
{¶1} Ramon Bryant appeals a judgment of the Summit County Common Pleas Court
that denied his motion to vacate sentence. For the following reasons, this Court affirms.
I.
{¶2} In April 2005, a jury found Mr. Bryant guilty of murder, aggravated murder,
attempted murder, aggravated robbery, aggravated burglary, felonious assault, and possession of
cocaine. The trial court sentenced him to 72 years to life in prison. Mr. Bryant appealed, but
this Court upheld his convictions. This Court also upheld his sentence, but its decision was
reversed by the Ohio Supreme Court under State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856.
{¶3} When the trial court resentenced Mr. Bryant in December 2007, it imposed the
same prison term. On appeal, this Court vacated the sentence because the trial court had not
properly imposed post-release control. In February 2010, the trial court resentenced Mr. Bryant
again and imposed the same prison term. Mr. Bryant appealed, but this Court affirmed.
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{¶4} In December 2012, Mr. Bryant moved to vacate his sentence, arguing that the trial
court had failed to properly merge allied offenses at his second resentencing hearing. The trial
court construed the motion as a petition for post-conviction relief. It determined that the petition
was untimely, that Mr. Bryant’s arguments were barred by res judicata, and that his arguments
were without merit. It, therefore, denied the motion. Mr. Bryant has appealed the court’s ruling,
assigning three errors.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED WHEN IT TREATED DEFENDANT-
APPELLANT’S MOTION TO VACATE SENTENCE AS AN UNTIMELY
PETITION FOR POST-CONVICTION RELIEF.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ACTED CONTRARY TO LAW WHEN IT FAILED TO
MERGE ALLIED OFFENSES AND MULTIPLE FIREARM
SPECIFICATIONS.
ASSIGNMENT OF ERROR III
THE TRIAL COURT WAS CONTRADICTORY WHEN IT SENTENCED
DEFENDANT-APPELLANT TO MULTIPLE FIREARM SPECIFICATIONS.
{¶5} Mr. Bryant argues that the trial court incorrectly treated his motion as a petition
for post-conviction relief, incorrectly held that his claim was barred by res judicata, and
incorrectly determined that he was not entitled to relief. According to him, because the trial
court did not comply with Revised Code Section 2941.25(A) when it resentenced him, his
sentence is void and may be corrected at any time.
{¶6} This Court has held that the failure to merge allied offenses of similar import does
not result in a void sentence, but “instead results in plain error.” State v. Abuhilwa, 9th Dist.
Summit No. 25300, 2010-Ohio-5997, ¶ 8. Accordingly, we reject Mr. Bryant’s argument that
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his sentence is void. Id. We agree with the trial court that, because Mr. Bryant’s sentence is not
void, his motion to vacate sentence should be reclassified as a petition for post-conviction relief.
State v. Reynolds, 79 Ohio St.3d 158, 160 (1997).
{¶7} Under Revised Code Section 2953.21(A)(2), a defendant must file a petition for
post-conviction relief “no later than one hundred eighty 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.” This
Court decided Mr. Bryant’s appeal from the trial court’s most recent sentence on June 29, 2011.
State v. Bryant, 9th Dist. Summit No. 25306, 2011-Ohio-3187. Mr. Bryant did not file his
motion to vacate, however, until December 2012. The trial court, therefore, correctly determined
that it was untimely under Section 2953.21(A)(2). Furthermore, the issue that Mr. Bryant raised
in his motion to vacate is one that he could have raised on direct appeal. Accordingly, it is
barred by res judicata. State v. McIntyre, 9th Dist. Summit No. 26677, 2013-Ohio-2077, ¶ 10
(“It is well-established law in Ohio that res judicata prohibits the consideration of issues that
could have been raised on direct appeal.”).
{¶8} Mr. Bryant’s sentence is not void. The trial court correctly construed his motion
to vacate sentence as a petition for post-conviction relief and correctly determined that he was
not entitled to relief. Mr. Bryant’s assignments of error are overruled.
III.
{¶9} The trial court correctly denied Mr. Bryant’s motion to vacate sentence. The
judgment of the Summit County Common Pleas Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
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We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
MOORE, P. J.
CONCURS.
CARR, J.
CONCURRING.
{¶10} While I recognize that this Court has not always been consistent in addressing
untimely petitions for post-conviction relief, I think the better approach is that most recently
espoused in State v. Daniel, 9th Dist. Summit No. 26670, 2013-Ohio-3510, ¶ 9-10. There, we
concluded that the trial court does not have jurisdiction to entertain an untimely petition. This
approach is consistent with the language of the statute and with the standard adopted by the
majority of the districts in the State. See R.C. 2953.23(A) (stating “a court may not entertain a
petition filed after the expiration of the period * * * unless division (A)(1) or (2) of this section
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applies[.]”); State v. Lawson, 1st Dist. Hamilton Nos. C-120077, C-120067, 2012-Ohio-5281, ¶
6-7; State v. Robinson, 6th Dist. Huron No. H-12-025, 2013-Ohio-2941, ¶ 8; State v. Norris, 7th
Dist. Monroe No. 11 MO 4, 2013-Ohio-866, ¶ 10; State v. Dilley, 8th Dist. Cuyahoga No. 99680,
2013-Ohio-4480, ¶ 10; State v. Espinal, 10th Dist. Franklin No. 12AP-346, 2012-Ohio-5478, ¶ 8;
State v. Anderson, 11th Dist. Trumbull No. 2013-T-0041, 2013-Ohio-4426, ¶ 15; State v. Garcia,
12th Dist. Butler No. CA2013-02-025, 2013-Ohio-3677, ¶ 12.
APPEARANCES:
RAMON R. BRYANT, pro se, Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.