State v. Williams

[Cite as State v. Williams, 2014-Ohio-1608.]

STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 27101

Appellee

v. APPEAL FROM JUDGMENT
ENTERED IN THE
CAMERON D. WILLIAMS COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 07 08 2540

DECISION AND JOURNAL ENTRY

Dated: April 16, 2014

BELFANCE, Presiding Judge.

{¶1} Defendant-Appellant Cameron D. Williams appeals from the trial court’s

September 30, 2013 entry issued pursuant to R.C. 2929.191. For the reasons set forth below, we

affirm.

I.

{¶2} This case has a long procedural history which has been discussed in varying

amounts of detail by this Court and the Supreme Court of Ohio. See State ex rel. Williams v.

Hunter, Slip Opinion No. 2014-Ohio-1022; State v. Williams, 9th Dist. Summit No. 26353,

2012-Ohio-4140; State v. Williams, 9th Dist. Summit No. 25879, 2011-Ohio-6141; State v.

Williams, 9th Dist. Summit No. 24169, 2009-Ohio-3162. For purposes of this appeal, we

reiterate only portions of it.

{¶3} “A jury convicted [Mr.] Williams in March 2008 of a number of offenses,

including two counts of aggravated murder with capital specifications.” State ex rel. Williams at
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¶ 3. The trial court merged the aggravated-murder convictions and an additional murder

conviction and sentenced Mr. Williams to a total sentence of life in prison with parole eligibility

after 69 years. Id. On direct appeal, we reversed a conviction for violating a protection order,

but otherwise affirmed. See Williams, 2009-Ohio-3162, at ¶ 55, 61. The trial court denied Mr.

Williams’ initial petition for post-conviction relief while his direct appeal was pending. State ex

rel. Williams at ¶ 3.

{¶4} The Supreme Court summarized Mr. Williams’ post-conviction filings as follows:

[Mr.] Williams then filed a number of motions, including one for a new trial and
one to dismiss an aggravated-burglary count, both of which were denied. He did
not appeal the order denying the motion for a new trial, and his appeal of the
order denying the motion to dismiss was dismissed when he failed to file a brief.
He also filed a motion for resentencing, arguing that he had been improperly
sentenced on allied offenses of similar import. That motion was denied. The
court of appeals affirmed the denial on the basis that the motion was in fact an
impermissible successive post[-]conviction petition.

In August and December 2011, [Mr.] Williams filed additional motions for
resentencing and for a final, appealable order, which were denied as barred by res
judicata and by the prohibition against successive petitions for post[-]conviction
relief. The court of appeals affirmed.

(Internal citations omitted.) Id. at ¶ 4-5.

{¶5} Mr. Williams continued to file various motions, including one in December 2012

entitled “Petition to Vacate or Set Aside Judgment of Conviction or Sentence” and another in

April 2013 entitled “Motion to Correct an Illegal Sentence Pursuant to[] R.C. 2967.28(B), R.C.

2953.08(G)(2)(b), R.C. 2929.191[.]” On May 30, 2013, the trial court issued an entry denying

Mr. Williams’ motion for a final, appealable order and petition to vacate or set aside judgment of

conviction or sentence but granting his motion to correct an illegal sentence “only as it relates to

the imposition of post-release control.” The trial court concluded that it was required to hold a
 3

resentencing hearing to correct the post-release control notifications. Mr. Williams did not

appeal from the trial court’s May 30, 2013 entry.

{¶6} Mr. Williams continued to file various motions in the trial court, including July

2013 motions for de novo resentencing, for waiver of prosecution costs, to correct illegal

sentences, and for a new trial. In August 2013, he filed a motion “requesting a ‘plain error’

analysis pursuant to Criminal Rule 52(B), and hearing scheduled to correct post-release control

error.” In September 2013, he filed another motion for resentencing.

{¶7} The trial court conducted a hearing on September 10, 2013, “to correct

notification to [Mr. Williams] of his post-release control requirements.” That entry was

journalized on September 30, 2013. Additionally, on September 30, 2013, the trial court denied

Mr. Williams’ motion for plain error analysis and motion for a new trial. On October 8, 2013,

Mr. Williams filed a notice of appeal from the trial court’s “judgment and sentence” of

September 30, 2013. The only entry attached to the docketing statement was the trial court’s

September 30, 2013 entry correcting post-release control notification.

{¶8} Mr. Williams has appealed pro se, raising nine assignments of error for our

review.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT’S ENTRY DATED SEPTEMBER 30, 2013, DOES NOT
COMPLY WITH CRIM.R. 32(C) BECAUSE IT FAILS TO REFLECT THE
VERDICT, CONVICTION OR SENTENCES INCLUDING THE
“DISPOSITION OF THE CAPITAL SPECIFICATIONS” AND IS SIGNED BY
A JUDGE OTHER THAN THE PRESIDING JUDGE.

{¶9} Mr. Williams asserts in his first assignment of error that the September 30, 2013

entry failed to comply with Crim.R. 32(C) and, thus, is not final and appealable. We do not
 4

agree. We note that Mr. Williams has only appealed from the trial court’s September 30, 2013

entry which was entered pursuant to R.C. 2929.191 to correct erroneous post-release control

notification.

{¶10} The Supreme Court of Ohio has held that, “when a judge fails to impose

statutorily mandated post[-]release control as part of a defendant’s sentence, that part of the

sentence is void and must be set aside.” (Emphasis in original.) State v. Fischer, 128 Ohio St.3d

92, 2010-Ohio-6238, ¶ 26; see State v. Clay, 9th Dist. Summit No. 25743, 2011-Ohio-5370, ¶ 7-

8 (applying Fischer to a case involving a sentence that occurred after the effective date of R.C.

2929.191). “For criminal sentences imposed on and after July 11, 2006, in which a trial court

failed to properly impose post[-]release control, trial courts shall apply the procedures set forth in

R.C. 2929.191.” State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, paragraph two of the

syllabus. “The hearing contemplated by R.C. 2929.191(C) and the correction contemplated by

R.C. 2929.191(A) and (B) pertain only to the flawed imposition of post[-]release control. R.C.

2929.191 does not address the remainder of an offender’s sentence.” Id. at ¶ 24. “Thus, the

General Assembly appears to have intended to leave undisturbed the sanctions imposed upon the

offender that are unaffected by the court’s failure to properly impose post[-]release control at the

original sentencing.” Id.; see also Fischer at paragraphs two and three of the syllabus.

Accordingly, “[t]he scope of an appeal from a resentencing hearing in which a mandatory term

of post[-]release control is imposed is limited to issues arising at the resentencing hearing.”

Fischer at paragraph four of the syllabus. Moreover, “res judicata still applies to other aspects of

the merits of a conviction, including the determination of guilt and the lawful elements of the

ensuing sentence.” Id. at paragraph three of the syllabus.
 5

{¶11} Both Fischer and R.C. 2929.191 anticipate that errors in post-release control

notification will be corrected via a limited resentencing hearing focused solely on post-release

control. See Fischer at paragraph two of the syllabus; Singleton at ¶ 24; R.C. 2929.191.

R.C. 2929.191 provides that trial courts may, after conducting a hearing with
notice to the offender, the prosecuting attorney, and the Department of
Rehabilitation and Correction, correct an original judgment of conviction by
placing on the journal of the court a nunc pro tunc entry that includes a statement
that the offender will be supervised under R.C. 2967.28 after the offender leaves
prison and that the parole board may impose a prison term of up to one-half of the
stated prison term originally imposed if the offender violates post[-]release
control.

Singleton at ¶ 23.

{¶12} If the Supreme Court viewed R.C. 2929.191 as requiring trial courts to reissue the

original sentencing entry along with the post-release control notification, it could have so

specified. Given the language in Singleton, quoted above, and the language from Fischer which

anticipates defendants being able to appeal from entries issued following limited resentencing

hearings, Fischer at paragraph four of the syllabus, we conclude that the entry Mr. Williams has

appealed from is a final, appealable order. See also State v. Terry, 2d Dist. Drake No.

09CA0005, 2010-Ohio-5391, ¶ 17 (concluding that an entry denying a defendant relief under

R.C. 2929.191 was final pursuant to R.C. 2505.02(B)(2) as being entered in a special proceeding

and affecting a substantial right); State ex rel. Beard v. Zaleski, 9th Dist. Lorain No.

10CA009836 (dismissing the matter concluding “[n]othing in Singleton, Section 2929.191, or

Rule 32(C), required Judge Zaleski to issue an entirely new sentencing entry[,]” and, thus, Mr.

Beard failed to demonstrate a clear legal right to a new sentencing entry). Mr. Williams has not

pointed to any post-Singleton or post-Fischer case law which holds otherwise.

{¶13} Nonetheless, because R.C. 2929.191 anticipates the trial court issuing the

corrective entry via a nunc pro tunc and there is nothing in the entry to suggest that it was issued
 6

as a nunc pro tunc, we remand the matter so that the trial court can correct the entry to reflect the

same.1 Mr. Williams’ first assignment of error is overruled.

ASSIGNMENT OF ERROR III

THE TRIAL COURT ABUSED IT[S] DISCRETION WHEN IT FAILED TO
INFORM DEFENDANT OF NOTIFICATION OF RIGHT TO APPEAL AND
DENIED APPOINTMENT OF APPELLATE COUNSEL.

{¶14} Mr. Williams asserts in his third assignment of error that the trial court abused its

discretion in failing to inform him of his right to appeal and denying him appointed counsel for

his appeal at his resentencing hearing.

{¶15} To the extent Mr. Williams is asserting that he was not notified of his right to

appeal and denied appointed counsel at his September 30, 2013 resentencing hearing, we also

find no merit in that argument. Even assuming, the premise of his argument had merit, he has

not provided this Court with a transcript of his resentencing hearing. Accordingly, as the

transcript is necessary to evaluate the merits of his assignment of error, and it was his burden to

provide the relevant portions of the record, we are required to presume regularity in the trial

court’s proceedings. See State v. Carter, 9th Dist. Summit No. 21622, 2003-Ohio-7170, ¶ 7-8.

Mr. Williams’ third assignment of error is overruled.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ABUSED IT[S] DISCRETION WHEN IT FAILED TO
INFORM DEFENDANT OF THE JURY VERDICTS BEFORE IMPOSING
SENTENCES.

1
We note that, because the trial court has already held a hearing pursuant to R.C.
2929.191, there would be no need upon remand to hold any further hearings prior to issuing the
nunc pro tunc correction.
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ASSIGNMENT OF ERROR IV

THE TRIAL COURT ABUSED IT[S] DISCRETION BY FAILING TO
SENTENCE DEFENDANT PURSUANT TO: STATE V. JOHNSON WHICH
CONSTITUTES PLAIN ERROR.

ASSIGNMENT OF ERROR V

THE TRIAL COURT COMMITTED “PLAIN ERROR” WHEN IT FAILED TO
INSTRUCT THE JURY ON SECOND-DEGREE KIDNAPPING.

ASSIGNMENT OF ERROR VI

THE TRIAL COURT ABUSED IT[S] DISCRETION BY IMPOSING
SENTENCES THAT ARE “UNAUTHORIZED BY LAW.”

ASSIGNMENT OF ERROR VII

THE PROSECUTOR COMMITTED MISCONDUCT BY WITHHOLDING
EXCULPATORY EVIDENCE AND NOT CORRECTING PERJURED
TESTIMONY.

ASSIGNMENT OF ERROR VIII

THE TRIAL COURT ABUSED IT[S] DISCRETION BY DENYING
DEFENDANT’S PETITION TO VACATE OR SET ASIDE JUDGMENT OF
CONVICTION OR SENTENCE.

{¶16} In Mr. Williams’ second, fourth, fifth, sixth, seventh, and eighth assignments of

error he raises issues not arising from his resentencing pursuant to R.C. 2929.191. Instead, the

majority of his arguments arise from his issues related to his original trial and sentencing. Mr.

Williams’ eighth assignment of error challenges the trial court’s denial of his petition to vacate

or set aside judgment of conviction or sentence. That motion was denied May 30, 2013, and was

not part of Mr. Williams’ resentencing pursuant to R.C. 2929.191. Mr. Williams did not appeal

the May 30, 2013 entry.

{¶17} As noted above, “[t]he hearing contemplated by R.C. 2929.191(C) and the

correction contemplated by R.C. 2929.191(A) and (B) pertain only to the flawed imposition of

post[-]release control.” Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, ¶ 24. “[R]es judicata
 8

still applies to other aspects of the merits of a conviction, including the determination of guilt

and the lawful elements of the ensuing sentence.” Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238,

at paragraph three of the syllabus. “The scope of an appeal from a resentencing hearing in which

a mandatory term of post[-]release control is imposed is limited to issues arising at the

resentencing hearing.” Id. at paragraph four of the syllabus.

{¶18} Thus, as Mr. Williams’ second, fourth, fifth, sixth, seventh, and eighth

assignments of error do not relate to issues that would have arisen at the hearing held pursuant to

R.C. 2929.191,2 they are outside the scope of this appeal and are barred by res judicata. Id. at

paragraphs three and four of the syllabus; see also State v. Knuckles, 9th Dist. Summit No.

26830, 2013-Ohio-4024, ¶ 7-8.

ASSIGNMENT OF ERROR IX

TRIAL AND APPELLATE COUNSEL WERE INEFFECTIVE FOR FAILING
TO ADDRESS ERRORS TWO, FOUR, FIVE, SIX, SEVEN, AND EIGHT.

{¶19} Mr. Williams asserts in his ninth assignment of error that trial and appellate

counsel were ineffective for failing to raise the arguments in his second, fourth, fifth, sixth,

seventh, and eighth assignments of error. He asserts that trial counsel should have objected to

“these” issues and his appellate counsel should have raised them in his direct appeal. He has not

otherwise developed these arguments. See App.R. 16(A)(7).

{¶20} Mr. Williams has only appealed from the September 30, 2013 entry issued

pursuant to R.C. 2929.191. Just as the arguments raised in the above listed assignments of error

2
Again we note that we do not possess a transcript of the resentencing hearing; however,
the corrective entry states the hearing was conducted pursuant to R.C. 2929.191, and, absent a
transcript, we must presume that it was. See Carter, 2003-Ohio-7170, at ¶ 7-8. Thus, we
likewise presume that only post-release control was addressed at the hearing.
 9

do not relate to Mr. Williams’ resentencing, neither does this assignment of error. Mr. Williams

could have raised claims concerning trial counsel’s ineffectiveness in his direct appeal and could

have raised issues pertaining to appellate counsel’s ineffectiveness via a motion to reopen his

direct appeal. This argument is likewise outside the scope of this appeal and barred by res

judicata. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, at paragraphs three and four of the

syllabus.

III.

{¶21} In light of the foregoing, we overrule Mr. Williams’ assignments of error, but

remand the matter to the trial court to correct the September 30, 2013 entry to reflect that it is a

nunc pro tunc entry.

Judgment affirmed,
and cause remanded.

There were reasonable grounds for this appeal.

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.
 10

Costs taxed to Appellant.

EVE V. BELFANCE
FOR THE COURT

CARR, J.
HENSAL, J.
CONCUR.

APPEARANCES:

CAMERON D. WILLIAMS, pro se, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.