State v. Bear , 2021 Ohio 1539 ( 2021 )


Menu:
  • [Cite as State v. Bear, 
    2021-Ohio-1539
    .]
    IN THE COURT OF APPEALS OF OHIO
    FOURTH APPELLATE DISTRICT
    GALLIA COUNTY
    STATE OF OHIO,                 :
    :
    Plaintiff-Appellant,      :    Case No. 20CA9
    :
    vs.                       :
    :    DECISION AND
    SAMUEL E. BEAR,                :    JUDGMENT ENTRY
    :
    Defendant-Appellee.       :
    _____________________________________________________________
    APPEARANCES:
    Samuel E. Bear, Caldwell, Ohio, Appellant, pro se.
    Jason Holdren, Gallia County Prosecuting Attorney, and Jeremy Fisher, Assistant
    Prosecuting Attorney, Gallipolis, Ohio, for Appellee.
    _____________________________________________________________
    Smith, P.J.
    {¶1} Appellant, Samuel Bear, appeals the trial court’s judgment entry
    denying his motion to vacate or set aside judgment. On appeal, Bear raises two
    assignments of error contending that 1) the trial court lacked jurisdiction to enter a
    judgment in his case; and 2) there was a lack of factual basis regarding the element
    of force in the record to support his guilty pleas to rape. Because we have
    characterized Bear’s underlying motion as an untimely-filed petition for post-
    conviction relief, we conclude the trial court lacked jurisdiction to entertain the
    constitutional claims raised in the petition and should not have addressed them on
    Gallia App. No. 20CA9                                                                                             2
    the merits. Thus, these claims should have been dismissed rather than denied.
    Further, because the non-constitutional claims were barred by res judicata and
    were further waived by Bear’s guilty pleas, we affirm the trial court’s denial of
    these claims.
    {¶2} Thus, the judgment of the trial court is affirmed as to the non-
    constitutional claims; but the judgment is modified as to the constitutional claims
    in order to reflect that they should have been dismissed for lack of jurisdiction.1
    Accordingly, the judgment of the trial court is affirmed as modified.
    FACTS
    {¶3} Bear currently appeals the trial court’s denial of his motion to vacate or
    set aside judgment. However, this is not the first time this Court has considered
    matters related to Bear’s underlying convictions. The record before us indicates
    that although Bear did not file a direct appeal of his convictions and sentences, he
    filed a petition for post-conviction relief on November 6, 2017. The trial court
    denied the petition and this Court affirmed the trial court’s decision on February 8,
    2019. State v. Bear, 4th Dist. Gallia No. 18CA8, 
    2019-Ohio-466
    . In our prior
    decision, we set forth the facts regarding this matter as follows:
    A Bill of Information alleging Appellant committed two acts of
    rape in violation of R.C. 2907.02(A)(2), felonies of the first
    degree, was filed with the Gallia County Clerk of Courts on June
    1
    This procedural remedy is consistent with the remedy applied in State v. Brown, 4th Dist. Scioto No. 16CA3770,
    
    2017-Ohio-4063
    , ¶ 9.
    Gallia App. No. 20CA9                                                      3
    27, 2017. The allegations involved two different child victims,
    John Doe 1 and John Doe 2. On that same date, Appellant, in
    open court and with the assistance of legal counsel, pleaded
    guilty to both counts.
    The record reveals Appellant is a Mennonite. The counts stem
    from criminal acts which occurred to John Doe 1 and John Doe
    2 when Appellant's sister, also a Mennonite, provided child care
    to them in 2009 and 2010 in Gallia County, Ohio. Several years
    later, Appellant wrote a letter to the children's mother confessing
    his actions and asking forgiveness. In April 2016, the children's
    mother notified the proper authorities and assisted the Ohio
    Bureau of Criminal Investigation in obtaining a recorded
    statement. On the advice of Appellant's friends, Appellant
    thereafter obtained an attorney. It appears the Gallia County
    authorities took no action in the matter for approximately one
    year.
    Appellant was represented by Attorney Jeff Finley. The record
    indicates Appellant and his attorney had several discussions in
    person at Attorney Finley's office, and over the telephone,
    regarding a plea agreement offered by the prosecutor's office and
    later accepted on June 27, 2017. At the plea hearing, Appellant
    waived various rights including his right to a grand jury. He also
    executed a written waiver of right to a jury trial.
    The trial court's journal entry dated June 27, 2017 found that
    Appellant was afforded all rights pursuant to Criminal Rules 11
    and 32; and that Appellant's plea was knowingly, intelligently,
    and voluntarily made with a full awareness of the possible
    consequences of his plea. The court ordered a pre-sentence
    investigation report to be completed. Appellant's sentencing was
    continued to July 6, 2017.
    On July 6, 2017, Appellant was sentenced to a stated prison term
    of eight years on each count. The trial court ordered the
    sentences be served concurrently. The trial court's Sentencing
    Entry dated July 10, 2017 reflects that Appellant entered an
    agreed guilty plea with a recommended sentence.
    Gallia App. No. 20CA9                                                                   4
    Appellant did not pursue a direct appeal. On November 6, 2017,
    Appellant filed a Petition for Post-Conviction Relief.[] On June
    4, 2018, the trial court entered the journal entry denying
    Appellant's petition and other various motions. This timely
    appeal followed.
    State v. Bear at ¶ 2-7.
    {¶4} After this Court affirmed the trial court’s denial of Bear’s petition,
    Bear went on to file several more motions in the trial court leading up to the
    current motion that was filed on February 26, 2020. In his motion, Bear argued the
    trial court lacked jurisdiction to accept his guilty pleas and sentence him for the
    two counts of rape by force contained in the bill of information, and he also argued
    that the record lacked a factual basis to support his guilty pleas. The trial court
    denied his motion on March 10, 2020. It is from this judgment that Bear now
    appeals, setting forth two assignments of error for our review.
    ASSIGNMENTS OF ERROR
    I.     “LACK OF JURISDICTION.”
    II.    “LACK OF FACTUAL BASIS.”
    {¶5} In his first assignment of error, Bear contends “[t]he trial court did not
    follow statutory mandates to the extent that it lacked authority and statutory power
    to enter a judgment in [his] case.” More specifically, Bear argues that Crim.R.
    5(A)(4) was violated because he was not informed of, nor did he waive in writing,
    his right to a preliminary hearing. He also argues that the right to a preliminary
    Gallia App. No. 20CA9                                                                                             5
    hearing may only be extinguished by indictment, and that because he was
    prosecuted under a bill of information rather than an indictment, he was deprived
    of his right to a preliminary hearing. He further argues that the trial court lacked
    jurisdiction to accept his guilty plea and sentence him under Crim.R. 7(A) and R.C.
    2941.021 because the “potential punishment” for the conduct that was alleged to
    have occurred (rape of a child under the age of 13) was punishable by life in
    prison, and that an offense punishable with a life sentence may only be prosecuted
    by indictment, not a bill of information. Bear explains that he did not realize he
    could have been sentenced to life in prison for the alleged offenses until the
    Supreme Court of Ohio affirmed the denial of his application for a writ of habeas
    corpus on March 20, 2019, which was after he filed his prior petition for post-
    conviction relief in the lower court.2 He claims this fact “is grounds for relief in
    this successive petition.” Finally, Bear argues that these defects, aside from
    constituting statutory and rule violations, deprived him of his constitutional right to
    due process in that he was not afforded his right to be heard.
    {¶7} In his second assignment of error, Bear contends there is a “lack of
    factual basis for the element of ‘force[]’ ” in the record. He also contends there is
    2
    The Supreme Court of Ohio expressly held that “[t]he trial court had jurisdiction over that offense [R.C.
    2907.02(A)(2)] regardless of the age of the victims.” Bear v. Buchanan at ¶ 11. The court further commented that
    “age with respect to that crime affects only the sentence that may be imposed.” 
    Id.
     However, a review of the statute
    reveals that the age of the victim only affects the sentence imposed for a violation of R.C. 2907.02(A)(1)(b) and
    Bear was not charged under that section of the statute.
    Gallia App. No. 20CA9                                                                 6
    no evidence in the record that he received any sexual stimulation or satisfaction
    during the alleged incident. Thus, he argues that his “conduct did not amount to
    fellatio and there is a lack of factual basis to support a conviction for rape.” He
    further argues that his counsel did not inform him that these elements were
    required to prove the offense of rape and that he would not have pled guilty had he
    known. He claims that “Defense Counsel’s presumptions blinded him and
    prevented him from fairly representing Defendant when he failed to investigate and
    there was no factual basis for the charge, rendering his services ineffective.”
    {¶7} For ease of analysis, we will address Bear’s assignments of error in
    conjunction with one another, separating them between constitutional and non-
    constitutional claims.
    LEGAL ANALYSIS
    A. Characterization of Irregular Motion
    {¶8} In order to review the denial of Bear’s “Motion to Vacate or Set Aside
    Judgment,” we must first determine how to characterize the motion. See State v.
    Brown, 4th Dist. Scioto No. 16CA3770, 
    2017-Ohio-4063
    , ¶ 18. As explained in
    Brown, “ ‘ “[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
    Gallia App. No. 20CA9                                                                  7
    turn quoting State v. Schlee, 
    117 Ohio St.3d 153
    , 
    2008-Ohio-545
    , 
    882 N.E.2d 431
    ,
    ¶ 12.
    {¶9} The Supreme Court of Ohio has held as follows regarding when
    irregular motions may meet the definition of petitions for post-conviction relief:
    “[w]here a criminal defendant, subsequent to his or her direct
    appeal, files a motion seeking vacation or correction of his or her
    sentence on the basis that his or her constitutional rights have
    been violated, such a motion is a petition for post-conviction
    relief as defined in R.C. 2953.21.”
    Brown at ¶ 19, quoting State v. Reynolds, 
    79 Ohio St.3d 158
    , 
    679 N.E.2d 1131
    ,
    syllabus (1997).
    {¶10} Thus, an irregular motion may meet the definition of a petition for
    post-conviction relief set forth in R.C. 2953.21(A)(1), if the motion was “ ‘(1) filed
    subsequent to [defendant's] 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.’ ” Brown at ¶ 19, quoting State v. Reynolds at 160.
    {¶11} “ ‘[P]ost-conviction relief petitions are used to assert claims that there
    was a denial or infringement of the person's rights as to render the judgment void
    or voidable under the Ohio or United States Constitutions.’ ” Brown at ¶ 20,
    quoting State v. Kelly, 4th Dist. Scioto No. 14CA3637, 
    2014-Ohio-5840
    , ¶ 4. “ ‘It
    is a means to resolve constitutional claims that cannot be addressed on direct
    appeal because the evidence supporting the claims is not contained in the record.’ ”
    Gallia App. No. 20CA9                                                                   8
    Brown at ¶ 20, quoting Kelly at ¶ 5, citing State v. Shaffer, 4th Dist. Lawrence No.
    14CA15, 
    2014-Ohio-4976
    , ¶ 9; State v. Knauff, 4th Dist. Adams No. 13CA976,
    
    2014-Ohio-308
    , ¶ 18.
    {¶12} Here, much like in Brown, 
    supra,
     the constitutional claims set forth in
    Bear’s “Motion To Vacate Or Set Aside Judgment” meet the definition of a
    petition for post-conviction relief pursuant to R.C. 2953.21. Bear filed the
    “Motion To Vacate Or Set Aside Judgment” after expiration of the time for filing a
    direct appeal. He also claimed in part that his constitutional rights had been
    violated by the trial court. Additionally, Bear sought to render the judgment void
    and he asked for vacation of the judgment and sentence.
    B. Standard of Review for Petition for Post-Conviction Relief
    {¶13} A trial court's decision granting or denying a post-conviction 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 post-
    conviction relief that is supported by competent, credible evidence. See 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).
    Gallia App. No. 20CA9                                                                     9
    C.    Bear’s “Motion To Vacate Or Set Aside Judgment” was an Untimely
    Post-Conviction Relief Petition and was also Barred by the Doctrine
    of Res Judicata; thus, the Trial Court did not have Jurisdiction to
    Decide the Merits of the Motion as to the Constitutional Claims
    {¶14} Initially, we note that limitations exist with respect to the filing of a
    post-conviction relief petition. A petition for post-conviction relief is subject to
    strict filing requirements. Former R.C. 2953.21(A)(2) required a petition for post-
    conviction relief to be filed “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 or adjudication * * *. If no appeal is taken * * * the
    petition shall be filed no later than one hundred eighty days after the expiration of
    the time for filing the appeal.” On March 26, 2015, HB 663 took effect and
    extended the time for filing a petition for post-conviction relief to (1) 365 days
    from the date on which the trial transcript was filed in the court of appeals in the
    direct appeal of the judgment of conviction or (2) 365 days after the expiration of
    the time for filing the notice of appeal, if no direct appeal is taken. R.C.
    2953.21(A)(2).
    {¶15} If a defendant fails to file his petition within the prescribed period, the
    trial court may entertain the petition only if: (1) the petitioner shows either that he
    was unavoidably prevented from discovery of the facts upon which he must rely to
    present the claim for relief or that the United States Supreme Court recognized a
    new federal or state right that applies retroactively to him; and (2) the petitioner
    Gallia App. No. 20CA9                                                                  10
    shows by clear and convincing evidence that no reasonable factfinder would have
    found him guilty but for constitutional error at trial. See R.C. 2953.23(A)(1); see
    also State v. McManaway, 4th Dist. Hocking No. 16CA8, 
    2016-Ohio-7470
    , ¶ 13-
    16 (trial court lacks jurisdiction to entertain an untimely petition for post-
    conviction relief unless the untimeliness is excused by statute).
    {¶16} In addition to dismissing a petition as being untimely, a trial court
    may also dismiss a petition when the claims are barred by the doctrine of res
    judicata. See State v. Boler, 4th Dist. Athens No. 18CA2, 
    2018-Ohio-3722
    , ¶ 19,
    citing State v. Szefcyk, 
    77 Ohio St.3d 93
    , 
    671 N.E.2d 233
    , syllabus (1996). The
    doctrine of res judicata is applicable in all post-conviction 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.”
    Boler at ¶ 19, quoting Szefcyk at 95.
    {¶17} Here, it is clear from the record that Bear has filed an untimely
    petition for post-conviction relief. The final order from his underlying rape
    convictions was filed on July 10, 2017. As stated, he had 30 days to file a direct
    appeal of his convictions and sentences, but he did not. He did not file his most
    recent petition for post-conviction relief until February 26, 2020. Thus, it was filed
    Gallia App. No. 20CA9                                                                11
    well beyond the time limit. Furthermore, because Bear has failed to argue and
    establish the applicability of either exception set forth in R.C. 2953.23(A), we find
    that the trial court lacked jurisdiction to entertain the motion. Brown at ¶ 25.
    {¶18} Because the trial court lacked jurisdiction to consider Bear’s petition
    for post-conviction relief, “[t]he trial court technically erred by addressing the
    merits of [the] motion.” See 
    Id.
     Instead, Bear’s motion, at least with respect to the
    constitutional claims, should have been dismissed for lack of jurisdiction. 
    Id.
     We
    find, however, that Bear has not been prejudiced by this error because the outcome
    remains the same. Bear’s constitutional claims would have failed regardless
    because the claims were untimely. Further, to the extent some of Bear’s arguments
    are premised upon the trial court’s lack of jurisdiction, which he claims can be
    raised at any time, directly or collaterally, and are not barred by the doctrine of res
    judicata, we find they would have failed on the merits even if they had not been
    time-barred. Thus, contrary to Bear’s arguments on appeal, we find the arguments
    contained in Bear’s underlying petition were also barred by the doctrine of res
    judicata.
    1. Failure to Afford a Preliminary Hearing or Probable Cause Determination
    Through Indictment Rather Than Bill of Information Did Not Affect the
    Trial Court’s Jurisdiction or Render Bear’s Convictions and Sentences Void
    (Lack of Jurisdiction Argument)
    Gallia App. No. 20CA9                                                                    12
    {¶19} Bear initially contends he was not informed of his right to a
    preliminary hearing and that because he was never informed of the right, he never
    waived it. He further argues that the offenses for which he was charged carried a
    potential punishment of life in prison and, as such, it was error to allow the charges
    to be prosecuted by a bill of information rather than by indictment by a grand jury.
    He cites Crim.R. 5 and 7 in support of his arguments and contends that these
    alleged rule violations resulted in constitutional violations as well, specifically to
    his right to due process. He also relies on R.C. 2941.021 in support of his
    arguments.
    {¶20} A review of the record before us reflects that Bear’s case did not
    originate with the filing of a criminal complaint in the municipal court. Because a
    criminal complaint was never filed in municipal court, Bear’s case did not go
    through the process of initial arraignment followed by either a preliminary hearing
    or waiver thereof and bindover to the grand jury for indictment in the court of
    common pleas. Instead, it appears that Bear’s counsel was involved in
    negotiations with the prosecutor’s office early on in the investigation and worked
    with the prosecutor to proceed with the filing of a bill of information charging two
    counts of rape by force in violation of R.C. 2907.02(A)(2), rather than seeking an
    indictment.
    Gallia App. No. 20CA9                                                                13
    {¶21} This agreement was very advantageous to Bear because had his case
    gone before the grand jury, he may have been indicted for two counts of rape of a
    child under the age of 13, in violation of R.C. 2907.02(A)(1)(b), which carry
    sentences of life in prison. As it stands, however, Bear was never charged with
    violations of R.C. 2907.02(A)(1)(b), either in juvenile court or municipal court, nor
    was he ever indicted on those offenses. Nonetheless, Bear appears to argue that
    because the conduct in which he engaged could have been charged as rape of a
    child under the age of 13 and could have been punished with life in prison,
    allowing him to be prosecuted through a bill of information rather than by
    indictment was error which deprived the trial court of jurisdiction over his case.
    For the following reasons, we disagree.
    {¶22} As argued by Bear, Crim.R. 5(A)(4) provides for “the right to a
    preliminary hearing in a felony case, when the defendant's initial appearance is not
    pursuant to indictment.” Additionally, as argued by Bear, Crim.R. 7(A) provides,
    in pertinent part, as follows:
    A felony that may be punished by death or life imprisonment
    shall be prosecuted by indictment. All other felonies shall be
    prosecuted by indictment, except that after a defendant has been
    advised by the court of the nature of the charge against the
    defendant and of the defendant's right to indictment, the
    defendant may waive that right in writing and in open court.
    Where an indictment is waived, the offense may be prosecuted
    by information * * *
    Gallia App. No. 20CA9                                                              14
    {¶23} Likewise, R.C. 2941.021 states as follows regarding the use of a bill
    of information:
    Any criminal offense which is not punishable by death or life
    imprisonment may be prosecuted by information filed in the
    common pleas court by the prosecuting attorney if the defendant,
    after he has been advised by the court of the nature of the charge
    against him and of his rights under the constitution, is
    represented by counsel or has affirmatively waived counsel by
    waiver in writing and in open court, waives in writing and in
    open court prosecution by indictment.
    {¶24} First and foremost, as we have already explained, Bear was never
    actually charged with offenses that were punishable by death or life imprisonment.
    He was charged with two violations of rape by force in violation of R.C.
    2907.02(A)(2), which carried maximum prison terms of eleven years each. Thus,
    Crim.R. 7(A) and R.C. 2941.021 were not violated here. Second, and importantly,
    Bear was represented by counsel below and signed a written waiver, in open court,
    of his “right to have an indictment by way of a grand jury.” In doing so, Bear also
    consented to being prosecuted by a bill of information. This Court has held that
    where a defendant waives his right to prosecution through an indictment and
    agrees to be charged through a bill of information, he or she is not entitled to
    confront his or her accuser at a preliminary hearing and thus, there is no need for a
    preliminary hearing. See State v. Dotson, 4th Dist. Washington No. 03CA53,
    
    2004-Ohio-2768
    , ¶ 8, citing State v. Girt, Stark No. 2002-CA-00174, 2002-Ohio-
    Gallia App. No. 20CA9                                                                15
    6407, ¶ 31 (once defendant waives his right to prosecution through indictment,
    there is no need for a preliminary hearing).
    {¶25} Accordingly, we find no merit to Bear’s arguments that the manner in
    which the charges were brought against him resulted in statutory and rule
    violations which resulted in constitutional violations. Thus, Bear cannot
    demonstrate that any of these alleged errors deprived the trial court of jurisdiction
    or rendered the trial court’s judgment void. Consequently, we conclude Bear’s
    petition was time-barred and there is no jurisdictional defect which insulates it
    from the application of the doctrine of res judicata.
    2.     Trial Counsel did not Render Ineffective Assistance and his
    Performance did not Render Bear’s Guilty Plea Invalid
    (Lack of Factual Basis Argument)
    {¶26} Although Bear made ineffective assistance of counsel claims in his
    first petition for post-conviction relief, he alleged another claim of ineffective
    assistance of counsel in the current petition and continues that argument on appeal.
    As set forth above, Bear contends that his counsel did not inform him that force
    and sexual stimulation/satisfaction were elements that were required to prove the
    offense of rape. He further argues that he would not have pled guilty had he
    known. In response to Bear’s allegations of ineffective assistance of counsel in his
    first petition for post-conviction relief, we held as follows:
    Gallia App. No. 20CA9                                                               16
    Appellant asserts that his legal counsel (1) colluded with the
    prosecution; (2) ignored the fact Appellant was allegedly a
    juvenile; and (3) coerced the Appellant to sign the plea
    agreement. However, Appellant has failed to provide any
    credible evidence outside of the record to support these
    contentions. Furthermore, “[a] claim of ineffective assistance of
    counsel is * * * waived by a guilty plea, unless the ineffective
    assistance of counsel precluded the defendant from knowingly,
    intelligently, and voluntarily entering a guilty plea.” [State v.
    Betts, 4th Dist. Vinton No. 18CA710, 
    2018-Ohio-2720
    , ¶ 26,
    quoting State v. Grove, 8th Dist. Cuyahoga No. 103042, 2016-
    Ohio-2721, ¶ 26; State v. Guerra, 2nd Dist. Miami No. 2015-
    CA-28, 
    2016-Ohio-5647
    , ¶ 18. See generally Katz, Martin,
    Lipton, Giannelli, and Crocker, Baldwin's Ohio Criminal Law,
    Section 43:20 (3rd Ed.2014). Appellant could have raised an
    ineffective assistance of counsel claim with regard to the
    informed and voluntary nature of his plea on a direct appeal but
    did not do so. Consequently, he is barred by res judicata from
    raising it now.
    State v. Bear, 
    supra, at ¶ 24
    .
    {¶27} Thus, we found all of Bear’s ineffective assistance of counsel claims
    to be barred by res judicata and we further found that his claims of ineffective
    assistance were waived by his guilty plea. In so holding, we noted that an
    exception exists when a defendant claims the ineffective assistance precluded him
    from knowingly, intelligently, and voluntarily entering a guilty plea. Interestingly,
    Bear now argues that this particular exception applies and that he would not have
    pled guilty but for counsel’s ineffective assistance. However, it appears that in
    making his argument, Bear confuses the statutory definitions of “sexual contact”
    and “sexual conduct.”
    Gallia App. No. 20CA9                                                               17
    {¶28} Bear was charged with and pled guilty to two counts of rape in
    violation of R.C. 2907.02(A)(2), which provides as follows:
    (A)(1) No person shall engage in sexual conduct with another
    who is not the spouse of the offender or who is the spouse of the
    offender but is living separate and apart from the offender, when
    any of the following applies:
    ***
    (2) No person shall engage in sexual conduct with another when
    the offender purposely compels the other person to submit by
    force or threat of force.
    {¶29} “Sexual conduct” for purposes of rape is defined in R.C. 2907.01
    as follows:
    * * * vaginal intercourse between a male and female; anal
    intercourse, fellatio, and cunnilingus between persons regardless
    of sex; and, without privilege to do so, the insertion, however
    slight, of any part of the body or any instrument, apparatus, or
    other object into the vaginal or anal opening of another.
    Penetration, however slight, is sufficient to complete vaginal or
    anal intercourse.
    {¶30} Thus, sexual stimulation or satisfaction, as argued by Bear, is not a
    required element that must be proven. “Sexual contact” on the other hand, is
    defined in R.C. 2907.01, which provides as follows:
    * * * any touching of an erogenous zone of another, including
    without limitation the thigh, genitals, buttock, pubic region, or,
    if the person is a female, a breast, for the purpose of sexually
    arousing or gratifying either person.
    {¶31} However, sexual contact, which includes a purpose to sexually arouse
    or gratify, is not an element of the crime for which Bear was charged or convicted.
    Gallia App. No. 20CA9                                                                18
    Accordingly, we reject Bear’s argument that his trial counsel failed to inform him
    that sexual stimulation or satisfaction were elements required to be proven by the
    State had he decided to go to trial rather than plead guilty.
    {¶32} Next, we find Bear’s argument that his counsel failed to inform him
    that force was an element that was required to be proven to be disingenuous. First,
    the word “force” was expressly used in the bill of information. For example, the
    bill of information charged Bear with two counts of rape in violation of R.C.
    2907.02(A)(2) and expressly alleged that Bear did “knowingly engage in sexual
    conduct with another when the offender purposely compels the other person to
    submit by force or threat of force.” Further, to the extent Bear argues that counsel
    misled him on the record, Bear has failed to provide this Court with the transcripts
    of the proceedings below, despite his duty to do so. State v. Whitaker, 4th Dist.
    Scioto No. 10CA3349, 
    2011-Ohio-6923
    , ¶ 10. Thus, we are unable to determine
    what may have been expressly discussed on the record during this plea hearing.
    Further, in such situations we must presume the regularity of the proceedings
    below. See Id. at ¶ 1. Moreover, Appellant has pointed to no evidence outside the
    record indicating that his counsel misinformed him regarding the element of force
    contained in the charges to which he pled guilty.
    {¶33} As such, we find no merit to Bear’s arguments nor any cause to
    prevent the application of res judicata or the general waiver of claims associated
    Gallia App. No. 20CA9                                                                  19
    with his guilty pleas. State v. Bear, 
    supra, at 18
    , citing State v. Betts, supra, at
    ¶ 20, in turn citing State v. Spangler, 4th Dist. Lawrence No. 16CA1, 2016-Ohio-
    8583, ¶ 16-18; State v. Brunner, 4th Dist. Ross No. 1654, 
    1991 WL 99669
    , *2
    (June 4, 1991). (A guilty plea is a complete admission of guilt and removes all
    issues of factual guilt from a case). Accordingly, as we have found no
    jurisdictional defect regarding the trial court’s ability to decide Bear’s case, both of
    these legal principles serve as a bar to his current claim of ineffective assistance of
    counsel.
    D. Res Judicata Bars all other Non-Constitutional Claims
    1. Lack of Jurisdiction Argument
    {¶34} This Court has recently explained as follows regarding non-
    constitutional claims raised in a petition for post-conviction relief:
    “Generally, a petitioner cannot raise, for purposes of
    postconviction relief, an error that could have been raised on
    direct appeal. In other words, if a petitioner fails to bring an
    appeal as of right, he cannot raise in a petition for postconviction
    relief those issues that should have been raised in a direct
    appeal.”
    (Citations omitted.) State v. Brown, 
    supra, at ¶ 34
    .
    {¶35} Additionally, as further explained in Brown:
    “Res judicata is applicable in all postconviction relief
    proceedings. * * * ‘ “[P]ublic policy dictates that there be an
    end of litigation; that those who have contested an issue shall be
    bound by the result of the contest, and that matters once tried
    shall be considered forever settled as between the parties.”
    Gallia App. No. 20CA9                                                                20
    [Citation omitted.] We have stressed that “[the] doctrine of res
    judicata is not a mere matter of practice or procedure inherited
    from a more technical time than ours. It is a rule of fundamental
    and substantial justice, ‘of public policy and of private peace,’
    which should be cordially regarded and enforced by the courts. *
    * *” [Citation omitted.]’ ”
    Brown at ¶ 34, quoting State v. Szefcyk, supra, at 95, citing Federated Dept. Stores,
    Inc. v. Moitie, 
    452 U.S. 394
    , 401, 
    101 S.Ct. 2424
    , 
    69 L.Ed.2d 103
     (1981).
    {¶36} Here, as already stated, Bear failed to file a direct appeal. In addition
    to raising constitutional claims, Bear’s “Motion To Vacate Or Set Aside
    Judgment” raised non-constitutional claims that he could have raised in a timely
    direct appeal. For example, in his first assignment of error, he argues that the trial
    court failed to comply with Crim.R. 5(A)(4) and Crim.R. 7(A). Above, we
    discussed the fact that Bear claimed that the trial court’s failure to comply with
    these rules resulted in a violation of his constitutional right to due process. We
    further reasoned that to the extent Bear argued these alleged violations resulted in
    constitutional violations, they were barred from being considered as his petition for
    post-conviction relief was untimely filed, and he did not satisfy any exception that
    would permit him to have filed beyond the deadline. However, to the extent these
    arguments simply allege statutory and rule violations, as opposed to constitutional
    violations, they are barred by res judicata because these arguments could have been
    raised in a direct appeal.
    Gallia App. No. 20CA9                                                                  21
    {¶37} Bear contends, however, that these violations precluded the trial court
    from having jurisdiction to accept his guilty plea and sentence him. Thus, he
    essentially argues his plea is invalid and his convictions and sentences are void.
    He further argues that lack of jurisdiction can be raised at any time, is not barred
    by res judicata, and that this Court has a duty to vacate a void conviction and
    sentence. We rejected these arguments in the context of our analysis of Bear’s
    constitutional claims above. Further, the Supreme Court of Ohio has determined,
    albeit in the context of reviewing the denial of a petition for habeas corpus, that
    “[t]he manner by which an accused is charged with a crime, whether by indictment
    returned by a grand jury or by information filed by the prosecuting attorney, is
    procedural rather than jurisdictional.” State ex rel. Beaucamp v. Lazaroff, 
    77 Ohio St.3d 237
    , 238, 
    1997-Ohio-277
    , 
    673 N.E.2d 1273
    , citing Wells v. Maxwell, 
    174 Ohio St. 198
    , 200, 148, 
    188 N.E.2d 160
    , 161 (1963); Ex parte Stephens, 
    171 Ohio St. 323
    , 324, 
    170 N.E.2d 735
    , 737 (1960). The Court further determined that “a
    judgment on an information also binds the defendant as long as the trial court has
    jurisdiction to try the defendant for the crime in which he was convicted and
    sentenced.” Beaucamp at 238.
    {¶38} Moreover, the record before us reveals that Bear waived his right to a
    grand jury, consented to be prosecuted by a bill of information, and pled guilty to
    the charges contained in the bill of information. Beaucamp further provides that a
    Gallia App. No. 20CA9                                                                 22
    defendant’s “plea of guilty to the offenses waive[s] any claimed right to an
    indictment.” Beaucamp at 238. Also, and importantly, Bear’s arguments are
    based upon the mistaken premise that he could have been sentenced to life in
    prison for the charges at issue. As we have already explained, while the alleged
    conduct, rape of a child under the age of 13, technically could have been charged
    under the R.C. 2907.02(A)(1)(b) portion of the statute which carries a potential life
    sentence, Bear was instead charged with rape by force, in violation of R.C.
    2907.02(A)(2), which is not punishable by life in prison.
    {¶39} We conclude there was simply no error in the manner in which Bear
    was prosecuted. In fact, although he raised a different substantive argument in his
    prior petition for a writ of habeas corpus, the Supreme Court of Ohio previously
    determined that the trial court had jurisdiction to hear and decide Bear’s underlying
    case. See Bear v. Buchanan, 
    156 Ohio St.3d 348
    , 
    2019-Ohio-931
    , 
    126 N.E.3d 1115
    , ¶ 11 (rejecting Bear’s argument that the bill of information was defective
    because it either did not identify or misstated the ages of the victims and finding
    that the trial court had jurisdiction over the offense of rape in violation of R.C.
    2907.02(A)(2) regardless of the age of the victims). Thus, we further conclude that
    Bear’s argument that being prosecuted through a bill of information prevented the
    trial court from acquiring jurisdiction over his case or having authority to impose
    Gallia App. No. 20CA9                                                              23
    sentence upon him under R.C. 2941.021 and Crim.R. 5 and 7 fails on the merits.
    Accordingly, it is overruled.
    2. Lack of Factual Basis Argument
    {¶40} Bear also raises a non-constitutional claim in his second assignment
    of error. More specifically, Bear argues that there was a lack of factual basis in the
    record to support his guilty pleas to rape by force. This argument has already been
    discussed above to the extent that his argument can be construed as a claim that he
    was deprived of his constitutional right to the effective assistance of counsel.
    However, to the extent this argument simply argues that there was insufficient
    evidence of force, sexual stimulation or sexual satisfaction in the record to support
    his convictions, he has waived any such argument by pleading guilty to the
    offenses and the argument is also barred by res judicata because it could have been
    raised on direct appeal. See State v. Bear, supra, at ¶ 18 (“Having entered a guilty
    plea and received an agreed sentence, Appellant waived the right to contest the
    state’s evidence or his guilt”). Thus, to the extent this argument raises non-
    constitutional claims that could have been raised on direct appeal, they are barred
    by the doctrine of res judicata as well as waived by Bear’s guilty pleas.
    {¶41} Therefore, we find that all of Bear’s arguments fail. Having found
    that Bear’s constitutional claims were brought as part of an untimely filed and
    successive petition for post-conviction relief, they are time-barred and further
    Gallia App. No. 20CA9                                                               24
    barred by the doctrine of res judicata. As such, the trial court lacked jurisdiction to
    consider these claims and rather than denying them, the trial court should have
    dismissed them. Therefore, under the authority of App.R. 12(A)(1)(a), the
    judgment of the trial court is modified to reflect dismissal of Bear’s constitutional
    claims. The rest of the trial court’s judgment shall remain intact with respect to the
    non-constitutional claims which we have determined to be barred by res judicata.
    Accordingly, we affirm the judgment with the modification. See State v. Brown,
    
    supra, at ¶ 39
    , citing State v. Brewer, 2nd Dist. Montgomery No. 24910, 2012-
    Ohio-5406, ¶ 10; State v. Griffin, 1st Dist. Hamilton Nos. C-150258 and 150005,
    
    2016-Ohio-782
    , ¶ 13.
    JUDGMENT AFFIRMED AS MODIFIED.
    Gallia App. No. 20CA9                                                                 25
    JUDGMENT ENTRY
    It is ordered that the JUDGMENT BE AFFIRMED AS MODIFIED and
    costs be assessed to 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
    Gallia 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 sixty 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 sixty-day period, or the failure
    of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the
    forty-five 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 sixty days, the stay will terminate as of the date of
    such dismissal.
    A certified copy of this entry shall constitute the mandate pursuant to Rule
    27 of the Rules of Appellate Procedure.
    Hess, J. & Wilkin, J. concur in Judgment and Opinion.
    For the Court,
    _____________________________
    Jason P. Smith
    Presiding Judge
    NOTICE TO COUNSEL
    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.