[Cite as State v. Cortez, 2014-Ohio-3814.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff - Appellee : Hon. Sheila G. Farmer, J.
: Hon. Craig R. Baldwin, J.
:
-vs- :
:
JOHN F. CORTEZ : Case No. 13-CA-121
:
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County
Court of Common Pleas, Case No.
07 CR 00751
JUDGMENT: Affirmed
DATE OF JUDGMENT: September 3, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant- Pro Se
Licking County Prosecuting Attorney JOHN F. CORTEZ
20 South Second Street, 4th Floor CCI #A596-827
Newark, OH 43055 PO Box 5500
Chillicothe, OH 45601
Licking County, Case No. 13-CA-121 2
Baldwin, J.
{¶1} Appellant John F. Cortez appeals a judgment of the Licking County
Common Pleas Court dismissing his “motion to present plain errors pursuant to Crim. R.
52(B).” Appellee is the State of Ohio.
STATEMENT OF FACTS AND CASE
{¶2} On January 9, 2009, appellant pled guilty to 23 counts of unlawful sexual
conduct with a minor (R.C. 2907.04(A)) and one count of corrupting another with drugs
(R.C. 2925.02(A)(4)(a)). He was convicted and sentenced to an aggregate term of
incarceration of 16 years. He was also classified as a Tier II sexual offender.
{¶3} On August 5, 2013, appellant filed a petition to invalidate his sex offender
classification and a motion to present plain errors pursuant to Crim. R. 52(B). Appellant
argued that his trial counsel was ineffective, his sentence was excessive and the court
did not make proper findings for the imposition of consecutive sentences, and the
offenses were allied offenses of similar import.
{¶4} The court found that appellant was improperly classified under the Adam
Walsh Act pursuant to State v. Williams, 129 Ohio St. 3d 344 (2011), and that his
classification was therefore void. The court found that Crim. R. 52(B) does not provide
appellant any post-trial right to review, converted his motion to a petition for
postconviction relief, and dismissed the petition as untimely and barred by res judicata.
{¶5} Appellant assigns three errors on appeal:
{¶6} “I. THE TRIAL COURT ERRED IN DISMISSING DEFENDANT’S
MOTION TO CORRECT AN ILLEGAL SENTENCE.”
Licking County, Case No. 13-CA-121 3
{¶7} “II. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
DEFENDANT WHEN IT ONLY FOUND A PORTION OF THE CONVICTION AND
SENTENCE TO BE VOID.”
{¶8} “III. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
DEFENDANT BY DENYING THE PLAIN ERRORS AND DEFECTS OF INEFFECTIVE
ASSISTANCE OF COUNSEL.”
I.
{¶9} In his first assignment of error, appellant argues that the court erred in
converting his motion to correct an illegal sentence into a petition for postconviction
relief.
{¶10} A motion to correct or vacate a sentence, despite its caption, meets the
definition of a motion for postconviction relief set forth in R.C. 2953.21(A)(1), if it was (1)
filed subsequent to direct appeal, (2) claims a denial of constitutional rights, (3) seeks to
render the judgment void, and (4) asks for vacation of the judgment and sentence.
State v. Reynolds, 79 Ohio St. 3d 158, 160, 679 N.E.2d 1131 (1997). Appellant’s
motion met this definition, and the trial court therefore did not err in treating his motion
as a petition for postconviction relief.
{¶11} The first assignment of error is overruled.
II.
{¶12} Appellant argues that the court erred in finding only his sex offender
classification void. He argues that the plea proceeding was flawed, thereby rendering
his entire sentence void.
Licking County, Case No. 13-CA-121 4
{¶13} As noted by the trial court, only the classification portion of appellant’s
judgment is rendered void by Williams, supra; the conviction and sentence are valid.
State v. Bates, 5th Dist. Guernsey No. 13 CA 9, 2013-Ohio-4768. Appellant’s challenge
to his plea was in the nature of a petition for postconviction relief. As such, the petition
had to be filed no later than 180 days after the time for appeal had expired pursuant to
R.C. 2953.21(A)(2). Appellant filed his petition over four years after the time for his
appeal had expired. Further, issues concerning the plea proceeding could have been
raised on direct appeal, and therefore are barred by res judicata. State v. Perry, 10
Ohio St.2d 175, 226 N.E.2d 104 (1967).
{¶14} The second assignment of error is overruled.
III.
{¶15} Appellant argues that the court erred in denying his claim of ineffective
assistance of counsel. As discussed earlier in this opinion, appellant’s motion was in
the nature of a petition for postconviction relief. As such, it was untimely pursuant to
R.C. 2953.21(A)(2). Further, ineffective assistance of counsel could have been raised
on direct appeal, and therefore is barred by res judicata. Perry, supra.
Licking County, Case No. 13-CA-121 5
{¶16} The third assignment of error is overruled. The judgment of the Licking
County Common Pleas is affirmed. Costs are assessed to appellant.
By: Baldwin, J.
Gwin, P.J. and
Farmer, J. concur.
State v. Cortez
Combined Opinion