[Cite as State v. Robinson, 2014-Ohio-397.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100077
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
KENNETH ROBINSON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-446184
BEFORE: E.A. Gallagher, J., Jones, P.J., and Stewart, J.
RELEASED AND JOURNALIZED: February 6, 2014
ATTORNEY FOR APPELLANT
Walter T. Madison
The Malone Bldg., Suite 201
209 S. Main Street
Akron, OH 44308
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Mary H. McGrath
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
EILEEN A. GALLAGHER, J.:
{¶1} Kenneth Robinson appeals the trial court’s denial of his motion to vacate a
void sentence. Robinson challenges the constitutionality of Ohio’s postconviction relief
statute, arguing that R.C. 2953.23 is unconstitutional and his convictions are for allied
offenses thus entitling him to be resentenced. Finding no merit to the instant appeal, we
affirm the decision of the trial court.
{¶2} In May 2004, Robinson entered into a plea agreement with the state of
Ohio whereby he pleaded guilty to felonious assault, as a lesser included offense of
aggravated murder, involuntary manslaughter as a lesser included offense of aggravated
murder, and kidnapping. In exchange, the state deleted all the attached specifications
and dismissed the remaining count of the indictment. As part of the plea negotiations,
the parties stipulated that all counts were to run consecutively, and the trial court
sentenced Robinson to a total prison term of 28 years.
{¶3} In May 2013, Robinson petitioned the court to vacate and correct his void
sentence. The trial court denied Robinson’s petition and he appealed raising the
following assignments of error:
The trial court erred and abused its judicial discretion when not applying
the Johnson and Williams decisions retroactively via the collateral-attack
doctrine and in accord with principles set forth in Fiore, Bunkley, and
Agee, violating the Due Process and Equal Protection Clauses of the
United States and Ohio Constitutions.
The trial court erred and abused judicial discretion when refusing to
adjudicate that an application of Ali v. State of Ohio would be in direct
violation of the Supremacy, Due Process and Equal Protection Clauses of
the United States and Ohio Constitutions.
The trial court erred and abused judicial discretion when refusing to
adjudicate that the double jeopardy claim and challenge to the
constitutionality of Ohio Rev. Code 2953.23(A)(1)(a) were not barred
under the doctrine of res judicata, and that its application violates the Due
Process and Equal Protection Clauses of the United States and Ohio
Constitutions.
The trial court erred and abused judicial discretion when refusing to
adjudicate that Ohio Rev. Code section 2953.23(A)(1)(a) is
unconstitutional upon its face and in its operation because such provides no
provision to bring a claim under the principles set forth in Fiore, Bunkley,
and Agee, violating the Due Process and Equal Protection Clauses of the
United States and Ohio Constitutions.
The trial court erred and abused judicial discretion when refusing to
adjudicate the fact Appellant’s convictions and sentences are in violation
of the Double Jeopardy Clauses of the United States and Ohio
Constitutions, including Ohio Rev. Code section 2941.25(A) according to
Johnson and Williams.
{¶4} Robinson’s five assignments of error consist of one claim and, as such they
will be addressed together.
{¶5} In State v. Kelly, 8th Dist. Cuyahoga No. 97673, 2012-Ohio-2930, this
court stated the following: “[c]laims that offenses are allied invoke the protections of the
Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and
Section 10, Article I of the Ohio Constitution.” State v. Underwood, 124 Ohio St.3d
365, 2010-Ohio-1, 922 N.E.2d 923. Ohio’s postconviction statute, R.C.
2953.21(A)(1)(a), specifically applies to any person who has been convicted of a
criminal offense and claims a denial or infringement of his rights “as to render the
judgment void or voidable under the Ohio Constitution or the Constitution of the United
States.” Kelly.
A motion to correct an illegal sentence is “an appropriate vehicle for
raising the claim that a sentence is facially illegal at any time.” [State v.]
Harris, 132 Ohio St.3d 318, 2012-Ohio-1908, 972 N.E.2d 509. “Where 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
postconviction relief as defined in R.C. 2953.21.” State v. Reynolds, 79
Ohio St.3d 158, 1997-Ohio-304, 679 N.E.2d 1131.
Kelly, supra.
{¶6} Although not captioned a petition for postconviction relief, Robinson’s
petition to the trial court was such a petition. Accordingly, he must comply with the
jurisdictional time limits on a postconviction petition for relief. State v. Johns, 8th Dist.
Cuyahoga No. 93226, 2010-Ohio-162. A petition for postconviction relief that claims a
violation of a constitutional right must be filed no later than 180 days after the expiration
of the time for filing the appeal. R.C. 2953.21(A)(2). An exception to the time limit
exists if it can be shown that (1) petitioner was unavoidably prevented from discovering
the facts relied on in the claim for relief or that the United States Supreme Court
recognized a new federal or state right that applies retroactively to persons in the
petitioner’s situation, and the petition asserts a claim based on that right; and (2) there is
clear and convincing evidence that but for the constitutional error at trial no reasonable
trier of fact would have found the petitioner guilty of the offense. R.C. 2953.23(A)(1).
{¶7} In the present case, Robinson filed his motion to correct an illegal sentence,
treated by this court as a petition for postconviction relief, in 2013 — nearly nine years
after the expiration of the time for filing the appeal. More than 180 days elapsed so his
petition for postconviction relief was facially untimely. Kelly.
{¶8} Further, none of the exceptions of R.C. 2953.23(A)(1) apply to extend the
time requirement. Although Robinson argues that he had been unavoidably prevented
from raising the issue of allied offenses in his direct appeal because State v. Johnson, 128
Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, had not yet been decided, he could
not establish the second exception to the time limit because an alleged sentencing error
would have no effect on his guilt or innocence on the charged offenses. State v. Rivers,
12th Dist. Warren No. CA2006-OH-092, 2007-Ohio-2442; Kelly.
{¶9} In Kelly, this court dealt with the same issue raised by Robinson in this
present appeal: that his convictions were allied offenses based upon the Ohio Supreme
Court’s decision in State v. Johnson, which established the test as “whether it is possible
to commit one offense and commit the other with the same conduct[.]” Id. However, as
stated in Kelly, Robinson’s conviction predated Johnson — the test in place at the time of
Robinson’s conviction was that set forth in State v. Rance, 95 Ohio St.3d 632,
1999-Ohio-291, 710 N.E.2d 699. “Rance required the courts to compare the elements
of each offense in the abstract, with no reference to the particular facts of the case, to
determine whether the commission of one offense would necessarily result in the
commission of the other offense.” Kelly. In Kelly, this court determined that Kelly
cannot rely on Johnson as support for his argument when it was the Rance test in place at
the time of his conviction. Id. The same rationale applies in the instant case.
{¶10} As such, we find no merit to Robinson’s argument.
{¶11} Lastly, we overrule Robinson’s argument that R.C. 2953.23 is
unconstitutional. This court, as well as other Ohio appellate courts have consistently
held that R.C. 2953.23 is constitutional.
Courts throughout this State have repeatedly found that R.C. 2953.23(A)(2)
is constitutional and does not violate the Supremacy Clause, the Doctrine
of Separation of Powers, the “due course of law” or “open courts”
provisions of the Ohio Constitution.
{¶12} Accordingly, Robinson’s first, second, third, fourth and fifth assignments of
error are overruled.
{¶13} The judgment of the trial court is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
lower court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
LARRY A. JONES, SR., P.J., and
MELODY J. STEWART, J., CONCUR