State v. Stanley , 2013 Ohio 306 ( 2013 )

[Cite as State v. Stanley, 2013-Ohio-306.]
IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2012 CA 17
v. : T.C. NO. 05CR78
LOTTIE MAE STANLEY : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 1st day of February , 2013.
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STEPHANIE R. HAYDEN, Atty. Reg. No. 0082881, Assistant Prosecutor, 55 Greene
Street, Xenia, Ohio 45385
Attorney for Plaintiff-Appellee
LOTTIE MAE STANLEY, #06186-067, FMC Carswell Medical Center, P. O. Box 27137,
Fort Worth, Texas 76127
Defendant-Appellant
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DONOVAN, J.
{¶ 1} This matter is before the Court on the pro se Notice of Appeal of Lottie M.
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Stanley, filed February 6, 2012. Stanley appeals from the December 20, 2011 denial of her
“Motion to Run Terms of Imprisonment Concurrent.” We hereby affirm the judgment of
the trial court.
{¶ 2} On July 15, 2005, Stanley pled no contest to one count of receiving stolen
property, in violation of R.C. 2913.51(A), one count of theft, in violation of R.C.
2913.01(A)(3), and two counts of forgery, in violation of R.C. 2913.31(A)(3), all felonies of
the fifth degree. The plea form, signed by Stanley, provides: “In consideration of the
Defendant’s pleas of no contest to the charges in the indictment, the State of Ohio would
stipulate 1 year sentence to run consecutive to sentences the Defendant is currently serving
in the State and Federal system.” The Judgment Entry of Conviction provides that
“Defense counsel and the prosecutor’s office have agreed to disposition in accordance with
O.R.C. §2953.08(D).” Stanley was sentenced to 12 months. Specifically, she was sentenced
to six months on each offense, with the sentences for theft and forgery to run concurrently to
each other but consecutively to the six month sentence for receiving stolen property. The
aggregate 12 month sentence was ordered to be served consecutively to a previously
imposed federal sentence. In a direct appeal, Stanley asserted that her pleas were
involuntary. However, this Court affirmed her conviction and sentence on July 21, 2006.
{¶ 3} Stanely filed her “Motion to Run Terms of Imprisonment Concurrent” on
December 14, 2011, asserting that “as a result of the consecutive sentence to be served in
this case, Petitioner will be subject to an excessive term of incarceration which is not in the
interest of justice and which would not be cost effective in the interest of the general public.”
In its Judgment Entry, the trial court noted that the “Supreme Court of Ohio has recognized
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that a trial court lacks authority to reconsider its own valid final judgment in a criminal case,
unless the sentence is void or to correct a clerical error. State, ex rel., Cruzado v. Zaleski
(2004), 111 Ohio St.3d 353.” The court noted that Stanley did “not suggest the sentence is
void or that there is a clerical error.” The court concluded that it “is without jurisdiction to
decide this motion.”
{¶ 4} We initially note that the State asserts that Stanley’s appeal from the trial
court’s decision is untimely. We disagree. We find that the order overruling Stanley’s
“Motion to Run Terms of Imprisonment Concurrent” to be final and appealable as it stems
from a postconviction proceeding. See, e.g., State v. Reynolds, 5th Dist. Richland No.
09-CA-13, 2009-Ohio-3998. An action for postconviction relief is a civil proceeding.
State v. Nichols, 11 Ohio St.3d 40, 42, 463 N.E.2d 375 (1984).
{¶ 5} App.R. 4(A) provides that “[a] party shall file the notice of appeal * * *
within thirty days of the later of entry of the judgment or order appealed or, in a civil case,
service of the notice of judgment and its entry if service is not made on the party within the
three day period in Rule 58(B) of the Ohio Rules of Civil Procedure.” (Emphasis added.)
{¶ 6} Civ.R. 58(B) mandates that a trial judge direct “the clerk to serve upon all
parties not in default for failure to appear notice of the judgment and its date of entry upon
the journal.” Service then becomes complete only upon the clerk serving the parties and
noting such service in the appearance docket. In the present matter, the trial court did not
expressly order the clerk to serve the notice of the judgment to the parties, nor did the clerk
issue notice of the order to the parties. Therefore, the time for filing a notice of appeal,
pursuant to App.R. 4(A), never began to run. See In re Anderson, 92 Ohio St.3d 63, 67, 748
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N.E.2d 67 (2001).
{¶ 7} Stanley’s brief does not set forth specific assigned errors. She “‘Prays’ this
Honorable Court grant her State of Ohio Sentence to run with her Federal Sentence.” R.C.
2953.08 governs appeals based on felony sentencing guidelines, and R.C. 2953.08(D)(1)
provides that a “sentence imposed upon a defendant is not subject to review under this
section if the sentence is authorized by law, has been recommended jointly by the defendant
and the prosecution in the case, and is imposed by a sentencing judge.”
{¶ 8} Stanely’s sentence is authorized by law. R.C. 2929.14(A)(5). Her
sentence was recommended jointly by the State and Stanley, and it was imposed by a
sentencing judge.
{¶ 9} Further, the Ohio Supreme Court, in State v. Perry, 10 Ohio St.2d 175, 226
N.E.2d 104 (1967), syllabus at ¶ 9, determined:
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 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.
{¶ 10} Stanley did not raise any issues with respect to the stipulated sentence in her
direct appeal, and her argument regarding her sentence is barred by the doctrine of res
judicata.
{¶ 11} The judgment of the trial court is affirmed.
[Cite as State v. Stanley, 2013-Ohio-306.]
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HALL, J., dissenting:
{¶ 12} I agree that the trial court’s denial of the defendant’s “Motion to Run Terms
of Imprisonment Concurrent” should not be disturbed. I write separately to express my
opinion that the appeal is untimely and should be dismissed.
{¶ 13} I would not construe the defendant’s “Motion to Run Terms of
Imprisonment Concurrent” to be a petition for post-conviction relief. R.C.
2953.21(A)(1)(a) provides that “one who claims that there was such a denial or infringement
of the person's rights as to render the judgment void or voidable under the Ohio Constitution
or the Constitution of the United States * * * may file a petition in the court that imposed
sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside
the judgment or sentence or to grant other appropriate relief.”
{¶ 14} The defendant’s motion does not specifically raise any constitutional issue.
The only reference in the motion that arguably could be construed to raise a constitutional
issue is “[t]hat as a result of the consecutive sentence to be served in this case, Petitioner will
be subject to an excessive term of incarceration which is not in the interest of justice and
which would not be cost effective in the interest of the general public.” I would not
construe that language to claim denial of a constitutional right to be free from cruel and
unusual punishment, and I cannot conceive of any other constitutional right that would
apply. The tenor of the motion is a request to modify the sentence to make it concurrent with
the federal sentence the defendant is serving. Without any argued or apparent constitutional
issue, I do not believe the motion qualifies as a petition for post-conviction relief. Therefore,
the time for appeal of the trial court’s decision began to run on the date of the decision,
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December 20, 2011, and the filing of the Notice of Appeal on February 6, 2012 was too late.
That would not prevent the defendant from seeking leave to file a delayed appeal under App.
R. 5(A)(1)(a), but he has not done so. Rather than affirm, I would dismiss the appeal as
untimely.
{¶ 15} I am constrained to note that characterizing a post-conviction pleading as a
petition for post-conviction relief under R.C. 2953.21 instead of some sort of criminal
motion can be a delicate and, for the defendant, a disastrous determination. The line between
a post-conviction criminal motion and an R.C. 2953.21 petition is not always clear. For
instance, if a defendant’s pleading is a request to vacate his plea for reasons that are of
constitutional dimension, is that a motion to withdraw his plea under Crim.R. 32.1, for
which one set of rules and legal analysis applies,1 or is that a petition for post-conviction
relief for which the specific statutory procedure and analysis apply?2 There is a myriad of
other motions that convicted defendants file, and some pleadings can, and should, be
characterized as petitions for post-conviction relief and some not.
1
Crim. R. 32.1 allows the withdrawal of a plea after conviction only “to correct manifest injustice.” The defendant must
establish manifest injustice, the motion is addressed to the sound discretion of the trial court, and relief is “allowable only in
extraordinary cases” State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977).
2
Petitions for post-conviction relief are governed by R.C. 2953.21 through R.C. 2953.23 and Crim R. 35. The petition
must be filed within the later of 180 days after expiration of the time for appeal, if there is no direct appeal, or 180 days after filing
of the trial transcript in the court, if an appeal was taken. There are statutory exceptions to the time requirement. The petition is
considered a collateral civil attack on the judgment. State v. Steffan, 70 Ohio St.3d 399, 410, 639 N.E.2d 67 (1994). By statute,
either party may move for summary judgment. R.C. 2953.21(D).
[Cite as State v. Stanley, 2013-Ohio-306.]
{¶ 16} Whether a pleading is correctly characterized as a criminal motion or a
petition for post-conviction relief is critical for appellate review. If the trial court correctly
decides the defendant’s request is a criminal motion and provides a copy of its decision to
both the State and the defendant at the time of filing, as is routine in this district, the time for
appeal begins to run upon filing of the decision. If the trial court correctly decides the
defendant’s request is a petition for post-conviction relief, but the court does not include
Civ.R. 58(B) language in the ruling directing the clerk to serve the parties and to note that
upon the docket, as is also common but not universal in this district, then the case law in this
and other districts is that the time for appeal never begins to run.3 This result applies even if
the defendant actually receives the decision because, under App. R. 4, “in a civil case” the
time for appeal starts upon compliance with Civ.R. 58(B).4 But if the trial court rules on a
petition for post-conviction relief, and includes a Civ.R. 58 order with which the clerk
promptly complies, the time for appeal begins regardless of whether the defendant actually
receives the decision. See Civ R. 58(B); Atkinson v. Grumman Ohio Corp., 37 Ohio St.3d
80, 523 N.E.2d 851 (1988), paragraph 2(c) of the syllabus; Leonard v. Delphia Consulting,
10th Dist. Franklin No. 06AP-874, 2007-Ohio-1846. That is my lament.
{¶ 17} Virtually all petitions for post-conviction relief are for the incarcerated, and
3
State v. Stevens, 2d Dist. Montgomery No.16562, 1998 WL 310739 (June 12, 1998); State v. McKinney, 3d Dist.
Defiance No. 4-11-01, 2011-Ohio-3521; State v. Church, 5th Dist. Morgan No. 08-CA-0001, 2008-Ohio-1917; State v. Taylor, 6th
Dist. Erie No. E-02-045, 2003-Ohio-3682; State v Williams, 10th Dist. Franklin No. 06AP-842, 2006-Ohio-842.
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If I were deciding the issue in the first instance, I would not apply Civ.R. 58 to a petition for post-conviction relief
because of the difficulty in characterizing post-conviction proceedings, particularly when filed pro se, and the unfortunate
collateral effect of exclusion from appellate review of many post-conviction rulings because of the vagaries of prisoner mail delivery
and a prisoner’s ability to create, mail, and file a timely notice of appeal. But the case law applying Civ.R. 58 to an R.C. 2953.21
petition is well established.
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the vast majority are pro se. Mailing to a prisoner, even assuming that he or she remains at
the same facility, can be spotty. Adding to the uncertainty is that a prisoner must create,
mail, and timely file a notice of appeal in a relatively short time frame. Even when a prisoner
receives a decision late and makes all reasonable efforts to file an appeal, the court of
appeals lacks jurisdiction to consider an appeal that may be a day or two late because it
cannot extend the time for appeal. App.R. 14(B) ( “The court may not enlarge or reduce the
time for filing a notice of appeal[.]”) At least if the proceeding is considered a criminal
action, the appellant may apply for a delayed appeal under App.R. 5(A)(1)(a), which could
be granted if the defendant demonstrates “‘a reasonable explanation of the basis for failure to
perfect a timely appeal.’” State v. Evans, 10th Dist. Franklin No. 09AP-1028,
2010-Ohio-4090, ¶5 (Citation omitted). But the Ohio Supreme Court long ago determined
that App.R. 5 and the ability to request a delayed appeal does not apply to a post-conviction
relief petition. State v. Nichols, 11 Ohio St.3d 40, 42, 463 N.E.2d 375 (1984).
{¶ 18} In my view, the appellate rights of incarcerated individuals dealing with
constitutional issues in post-conviction relief petitions would be better protected if they were
permitted to seek leave to file a delayed appeal, provided they could demonstrate just cause.
The case law, the Appellate Rules, or the post-conviction relief statute should be modified to
achieve this result.
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FAIN, J. concurring:
{¶ 19} I concur fully in Judge Donovan’s opinion for the court. I write separately
to indicate that I agree with much of what Judge Hall has set forth in his dissent. I
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specifically agree that App.R. 5 should be amended to include appeals from post-conviction
relief decisions within the scope of permissible motions for delayed appeal.
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Copies mailed to:
Stephanie R. Hayden
Lottie Mae Stanley
Hon. Stephen A. Wolaver