[Cite as State v. Bates, 2012-Ohio-4360.]
COURT OF APPEALS
GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. Patricia A. Delaney, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellee : Hon. Julie A. Edwards, J.
:
-vs- :
: Case Nos. 2012-CA-06
BRYAN BATES : 2012-CA-10
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeals from the Guernsey County
Court of Common Pleas, Case No. 07-CR-
117
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 24, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DANIEL G. PADDEN BRYAN BATES PRO SE
Guernsey County Prosecuting Attorney #577218
139 West 8th Street Box 5500
Box 640 Chillicothe, OH 45601
Cambridge, OH 43724
[Cite as State v. Bates, 2012-Ohio-4360.]
Gwin, J.
{¶1} Defendant-appellant Bryan Bates appeals two judgments of the Court of
Common Pleas, of Guernsey County, Ohio which we have consolidated. Appellant
assigns three errors:
{¶2} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW, ABUSED ITS
DISCRETION WHEREAS,THE TRIAL COURT FAILED TO CONDUCT AN IN CAMERA
INSPECTION TO DETERMINE IF INCONSISTENT STATEMENTS WERE PROVIDED
TO THE GRAND JURY IN COMPARISON WITH THE TESTIMONY PROVIDED AT
TRIAL.
{¶3} “II. THE TRIAL COURT ABUSED ITS DISCRETION BY DETERMINIING
THAT HOUSE BILL 86 IS NOT RETROACTIVE.
{¶4} “III. THE TRIAL COURT ERRED AS A MATTER OF LAW WHEREAS,
THE COURT DENIED APPELLANT’S PETITION FOR POST CONVICTION RELIEF
PURSUANT TO ORC 2953.21.”
{¶5} The record indicates on June 29, 2007, appellant was indicted on twelve
counts of pandering sexually oriented material involving a minor in violation of R.C.
2907.322 and thirty counts of illegal use of a minor in nudity oriented material or
performance in violation of R.C. 2907.323. The charges arose after an international
investigation involving the United States and Canada into child pornography on the
Internet.
{¶6} A jury convicted appellant of all charges, and on April 18, 2008, the trial
court sentenced appellant to an aggregate term of thirteen years in prison.
Guernsey County, Case No. 2012-CA-06 and 2012-CA-10 3
{¶7} On direct appeal, appellant challenged the denial of his motion to
suppress testimony of the State’s expert in computer forensics, and raised the issues of
ineffective assistance of counsel, and manifest weight and sufficiency of the evidence.
This court affirmed appellant’s convictions in State v. Bates, Fifth District No. 08CA15,
2009-Ohio-275 (Bates I).
{¶8} On April 26, 2011, appellant filed a motion to correct his sentence
pursuant to Crim. R. 32 (C). On May 23, 2011, the trial court amended the judgment
entry of sentence to specify appellant was convicted by a jury of his peers. Two weeks
later, appellant filed a motion to correct the amended judgment entry to comport with
Crim. R. 32 (C). The trial court directed appellant to submit a proposed draft for an
entry of clarification.
{¶9} While the above motion to correct the sentence was pending, appellant
filed another motion to correct the sentence, arguing the charges were allied offenses of
similar import. The court overruled that motion, finding it could have been or should
have been raised on direct appeal.
{¶10} Subsequently appellant filed a proposed draft of the entry for clarification
as directed by the trial court. The court filed a judgment entry of sentence pursuant to
Civ. R. 60 (A), again sentencing appellant to thirteen years in prison. The trial court
overruled appellant’s motion for reconsideration of the allied offenses issue.
{¶11} On November 21, 2011, appellant filed a motion for a hearing to correct
the sentence pursuant to R.C. 2929.14 and 2929.41 and State v. Foster, 109 Ohio St.
3d 1, 2006-Ohio-857. The trial court overruled the motion.
Guernsey County, Case No. 2012-CA-06 and 2012-CA-10 4
{¶12} From the above appellant filed three appeals, which this court addressed
collectively in State v. Bates, 5th Dist. Nos. 11-CA-000016, 11-CA-000026, and 11-CA-
000033, 2012-Ohio-1080 (Bates II). Appellant raised a total of nineteen assignments of
error in the three appeals. This court affirmed all the trial court’s judgments, and noted
that some of the errors appellant raised were res judicata because appellant could have
raised the arguments in his direct appeal. However, we addressed appellant’s
assignments of error regarding his sentence, finding that the judgment entries complied
with Crim. R. 32 (C) and State v. Baker, 119, Ohio St. 3d. 197, 2008-Ohio-3330, 893
N.E.2d 163.
{¶13} While the three appeals were pending before this court, appellant filed a
motion for reconsideration and to correct the sentence in the trial court, which the court
overruled. The court also overruled a later motion to correct the sentence. Appellant
filed a notice of appeal on February 23, 2012, taken from the court’s overruling of his
most recent motion to correct the sentence.
{¶14} On February 29, 2012, appellant filed a petition to vacate or set aside the
judgment or conviction or sentence. On March 5, 2012, we filed our opinion in Bates II.
The trial court overruled the petition to vacate or set aside the judgment of conviction or
sentence on March 14, 2012. In April 2012, appellant filed a notice of appeal from that
decision, which was originally assigned the case number 12-CA-10, but which we
subsequently consolidated with case number 12-CA-06. Those matters are before us
now.
Guernsey County, Case No. 2012-CA-06 and 2012-CA-10 5
I.
{¶15} In his first assignment of error, appellant argues the trial court abused its
discretion in not conducting an in-camera inspection of the transcripts of the evidence
presented to the grand jury in his criminal case to determine whether the testimony
before the grand jury was inconsistent with testimony presented at trial.
{¶16} Crim. R. 6(E) provides deliberations of the grand jury and the vote of the
grand jurors is not to be disclosed but disclosure of other matters occurring before the
grand jury may be disclosed if the court directs. The Rule provides matters may be
disclosed preliminarily to or in connection with a judicial proceeding, or when the
defendant has shown grounds may exist for a motion to dismiss the indictment because
of matters occurring before the grand jury.
{¶17} In United States v. Proctor & Gamble Co., 356 U.S. 667, 78 Sup. Ct. 983,
2 L.Ed. 2d 1077 (1958), the United States Supreme Court found a trial court has
discretion to release grand jury transcripts when a defendant demonstrates a
particularized need such that the secrecy of the proceedings should be discretely and
limitedly lifted. In State v. Greer, 66 Ohio St. 2d 139, 420 N.E. 2d 982 (1981), the Ohio
Supreme Court found the defendant has demonstrated a particularized need when,
after a consideration of all the surrounding circumstances, the court finds it is probable
that failure to disclose the grand jury testimony will deprive the defendant of a fair
adjudication of the allegation placed at issue in the testimony presented at trial. Courts
have applied the same “particularized need” test for post-verdict requests for grand jury
transcripts as for requests made prior to or during trial. See, e.g., State v. Miller, 3d Dist.
No. 4-93-24, 1995 WL 9395 (January 11, 1995).
Guernsey County, Case No. 2012-CA-06 and 2012-CA-10 6
{¶18} Our standard of reviewing the trial court’s judgment is the abuse of
discretion standard. State v. Gondor, 112 Ohio St. 3d 377, 2006-Ohio-6679,860 N.E.2d
77. The Supreme Court has frequently held the term abuse of discretion indicates the
court’s attitude is unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio
St. 2d 151, 404 N.E. 2d 144 (1980). Appellant directs us to the testimony of Agent
Cameron Bryant, Detective John Davis, and Detective Ron Pollock, arguing portions of
the testimony the officers variously gave in the affidavit submitted in support of the
search warrant, at the suppression hearing, and at trial are internally inconsistent, giving
rise to a particularized need to review their testimony before the grand jury.
{¶19} Appellant argues Agent Bryant testified at trial regarding how images are
sent and received through the Internet and how an image is saved on a computer’s hard
drive. Appellant asserts the testimony is not only inconsistent but also false and
misleading. Appellant raised the issue of the accuracy of the testimony in the context of
the motion to suppress in his direct appeal, Bates I at ¶¶ 23-55. He raised the issue
again in Bates II, which we found was res judicata. Bates II, ¶ 34. We find the present
question of the accuracy of the testimony is res judicata as well.
{¶20} Appellant also argues Agent Bryant’s testimony was inconsistent
regarding the origin of the images. Agent Bryant testified he believed the images
originated from the Internet. Thereafter, he testified the images came either from a
website or from someone who sent the images with the consent of the user, by which
he meant appellant. Agent Bryant testified he could not determine whether the images
were downloaded from a website or received from another user.
Guernsey County, Case No. 2012-CA-06 and 2012-CA-10 7
{¶21} This issue is arguably res judicata as well because appellant could have
included it in his challenge to the affidavits supporting the search warrant and to the
manifest weight in Bates I. Assuming arguendo the matter is not res judicata, we find
Agent Bryant’s testimony is not internally inconsistent.
{¶22} Detective Pollock testified at the suppression hearing about how the
affidavit in support of the request for the search warrant was generated. Detective
Pollock testified he and Agent Bryant provided the information to the prosecutor so the
prosecutor’s office could draft the affidavit. Officer Pollock testified Detective Davis was
in court at the time and did not attend the prosecutor’s conference. At trial he testified
that the search warrant was obtained “with the assistance” of Detective Davis. We find
this testimony is not contradictory. Detective Davis could provide assistance in
obtaining the information for the search warrant without actually being present with the
prosecutor when the affidavit was discussed and prepared.
{¶23} Detective Davis testified at the suppression hearing and at trial. Detective
Davis testified he did not meet with the prosecutor to prepare the affidavit because he
had a court case and also another investigation. Davis testified he and Detective
Pollock were partners and on most cases they either worked together or shared
information about a particular case. Detective Davis specifically testified he was not
present during the preparation of the search warrant. At trial, Davis testified he, Bryant,
and Pollock “put together” the information for a search warrant.
{¶24} The State maintains it is clear the prosecutor actually drafted the affidavit
for the search warrant. Detective Davis did not testify at trial that he was actually
Guernsey County, Case No. 2012-CA-06 and 2012-CA-10 8
present. He did participate in the investigation and helped gather the information later
used to obtain the search warrant.
{¶25} The questions regarding the affidavit in support of the search warrant are
res judicata. Assuming arguendo that the question of consistency between the affidavit
and the trial testimony is not res judicata, we find the testimony presented at the various
stages of the proceedings is consistent.
{¶26} Finally, appellant argues there was a question as to who testified at the
grand jury hearing and what was presented. The computer forensic report was not
completed until after the indictment was issued. Appellant argues the indictment states
facts which could only have been retrieved using computer forensic procedures.
Appellant argues the question of how the facts were presented before the grand jury
must be answered. We do not agree. There is no showing that the information
contained in the indictment must have been gleaned by an expert computer forensic
examiner.
{¶27} We find appellant has not demonstrated a particularized need for the
grand jury transcripts, and the trial court did not abuse its discretion in denying
appellant’s request for grand jury transcripts.
{¶28} The first assignment of error is overruled.
II.
{¶29} In his second assignment of error, appellant argues the trial court erred in
finding the provisions of House Bill 86 were not retroactive and did not apply to
appellant’s sentencing procedures.
Guernsey County, Case No. 2012-CA-06 and 2012-CA-10 9
{¶30} Appellant argues the United States Supreme Court’s case of Oregon v.
Ice, 555 U.S. 160, 129 Sup. Ct. 711, 172 L. Ed. 2d 517, (2009), and the Supreme
Court’s decision in State v. Hodge, 128 Ohio St. 3d 1, 2010-Ohio-6320, 941 N.E. 2d 768
effectively reversed the Ohio Supreme Court’s decision in State v. Foster, supra. In
Hodge, the Supreme Court held Ice does not revive the disputed statutory provisions
the Foster decision invalidated, and that defendants sentenced by the trial judges who
did not apply those provisions are not entitled to re-sentencing. Hodge ¶ 5.
{¶31} The Supreme Court agreed the General Assembly was no longer
constrained by Foster’s holdings and could, pursuant to Ice, enact statutory provisions
previously disapproved in Foster. ¶ 6. The General Assembly did reenact the provisions
after appellant’s sentencing. This court has found the provisions are not retroactive.
See, e.g., State v. Hobby, Fifth District No. 11COA41, 2012-Ohio-2420, citing State v.
Kalish, 120 Ohio St. 3d 23, 2008-Ohio-4912, 896 N.E. 2d 124 and Hodge, supra.
{¶32} Furthermore, in Bates II this court found the August 26, 2011 judgment
entry of sentencing complied with Crim. R. 32(C) and Baker, supra. Bates II at ¶42.
Because the judgment entry complied with the law in effect at the time of sentencing,
the court did not err in refusing to correct the sentence in accord with H.B. 86.
{¶33} The second assignment of error is overruled.
III.
{¶34} In his third assignment of error, appellant argues the trial court erred as a
matter of law in overruling his petition for post-conviction relief filed February 29, 2012.
{¶35} R.C. 2953.21 provides a petition for post-conviction relief must be filed no
later than 180 days after the date on which the trial transcript is filed in the Court of
Guernsey County, Case No. 2012-CA-06 and 2012-CA-10 10
Appeals in the direct appeal, or if no appeal is taken, no later than 180 days after the
expiration of the time for filing the appeal. Appellant pursued his direct appeal in 2008.
His petition was filed approximately three years later.
{¶36} A trial court has no jurisdiction to hear an untimely petition for post-
conviction relief unless the movant meets requirements set out in R.C. 2953.23(A).
State v. Walker, 5th Dist. No. 12-CAA-020010, 2012-Ohio-3095, citing State v.
Demastry, 5th Dist. No. 05CA-14, 2005-Ohio-4962 ¶ 15. The exception set out in R.C.
2953.23 provides an untimely petition may be heard if the petitioner can show he was
unavoidably prevented from discovering the facts upon which the petition is based, and
also that but for Constitutional errors at trial, no reasonable fact finder would have found
the petitioner guilty.
{¶37} Appellant argues the trial court omitted the phrase nunc pro tunc when
correcting the 2008 sentence on August 26, 2011. He asserts this gives rise to a new
right of appeal, noting that the judgment contains language stating it is a final
appealable order.
{¶38} A trial court has specific limited jurisdiction to enter a corrected entry, but
not to enter a new sentencing entry unless directed to do so after appeal. The trial
court’s judgment entry must either be treated as a nunc pro tunc entry or a complete
nullity because the court lacked jurisdiction to enter a new judgment.
{¶39} In State v. Lester, 130 Ohio St. 3d 303, 2011-Ohio-5204, 958 N.E. 2d
142, the Ohio Supreme Court held a nunc pro tunc judgment entry issued for the sole
purpose of complying with the rule governing contents of a judgment of conviction by
correcting a clerical omission in a final judgment entry is not a new final order from
Guernsey County, Case No. 2012-CA-06 and 2012-CA-10 11
which a new appeal may be taken. Lester held when the substantive provisions of the
governing Rule are contained in judgment of conviction, the trial court's omission of how
the defendant's conviction was effected, i.e., the “manner of conviction,” does not
prevent the judgment of conviction from being an order that is final and subject to
appeal. Syllabi by the court, paragraphs 1, 2, and 3. The Supreme Court explained the
absence of the language required by Crim. R. 32 (C) indicating how the conviction was
effected does not deprive the appellant of any opportunity to appeal the conviction or
sentence. Id., at paragraph 17.
{¶40} Appellant has not been deprived of the opportunity to appeal his
conviction and sentence, as evidenced by the fact these are his fifth and sixth appeals
to this court.
{¶41} We find despite the language in the entry that it constitutes a final
appealable order, the sentencing entry to correct the sentence to reflect the
requirements of Crim. R. 32(C) does not constitute a new final appealable order.
{¶42} We find appellant’s petition for post-conviction relief was not filed within
the statutory time and contained no showing the exception to the time limitation applied.
The trial court did not err in dismissing the petition.
{¶43} The third assignment of error is overruled.
Guernsey County, Case No. 2012-CA-06 and 2012-CA-10 12
{¶44} For the foregoing reasons, the judgment of the Court of Common Pleas of
Guernsey County, Ohio, is affirmed.
By Gwin, J.,
Delaney, P.J., and
Edwards, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. JULIE A. EDWARDS
WSG:clw 0822
[Cite as State v. Bates, 2012-Ohio-4360.]
IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
BRYAN BATES :
:
:
Defendant-Appellant : CASE NOS. 2012-CA-06
2012-CA-10
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Court of Common Pleas of Guernsey County, Ohio, is affirmed. Costs to appellant.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. JULIE A. EDWARDS
State v. Bates
Combined Opinion