[Cite as State v. Sparks, 2014-Ohio-5017.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 27292
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
BRYAN S. SPARKS COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 02 12 3669
DECISION AND JOURNAL ENTRY
Dated: November 12, 2014
HENSAL, Judge.
{¶1} Bryan Sparks appeals a judgment of the Summit County Court of Common Pleas
that denied his motion to correct sentence. For the following reasons, this Court affirms.
I.
{¶2} Following a trial to the bench in 2004, the trial court found Mr. Sparks guilty of
two counts of rape, two counts of corruption of a minor, and one count of illegal use or
possession of drug paraphernalia. It sentenced him to life in prison and adjudicated him a sexual
predator under Revised Code Section 2950.09. This Court upheld his convictions on appeal, but
remanded for resentencing on one of the rape counts. The trial court resentenced him on that
count in June 2005.
{¶3} In January 2010, Mr. Sparks petitioned for post-conviction relief. In its brief
opposing the petition, the State pointed out that the trial court had incorrectly imposed post-
release control when it sentenced Mr. Sparks. It argued that his sentence, therefore, was void,
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which made his petition premature. In March 2010, the trial court resentenced Mr. Sparks,
correcting the post-release control error and imposing the same prison terms as before. It also
classified him as a Tier III sex offender under the Adam Walsh Act. On appeal, this Court
affirmed in part and reversed in part, explaining that, under State v. Fischer, 128 Ohio St.3d 92,
2010-Ohio-6238, the trial court did not have authority to assign Mr. Sparks a sex offender
classification. On remand, the trial court corrected its entry.
{¶4} In October 2011, Mr. Sparks petitioned for post-conviction relief, arguing that his
trial counsel was ineffective. The trial court denied his petition as untimely. Mr. Sparks moved
for reconsideration, but the trial court denied his motion. Mr. Sparks did not appeal either of the
trial court’s decisions.
{¶5} In February 2014, Mr. Sparks moved the trial court to correct his sentence, raising
multiple issues. The trial court denied his motion without a hearing. Mr. Sparks has appealed,
assigning six errors, which this Court will address together.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED WHEN IT FAILED TO STATE FINDINGS OF
FACTS AND CONCLUSIONS OF LAW VIOLATING APPELLANT’S SIXTH
AMENDMENT TO THE UNITED STATES CONSTITUTION.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED WHEN IT FAILED TO HOLD AN
EVIDENTIARY HEARING BEFORE DENYING APPELLANT’S MOTION
VIOLATING HIS DUE PROCESS RIGHTS IN ACCORDANCE TO THE
SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED WHEN IT PLACED THE APPELLANT WITHIN
THE GUIDELINES OF THE DOUBLE JEOPARDY CLAUSE IN VIOLATION
OF THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
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ASSIGNMENT OF ERROR IV
THE TRIAL COURT ERRED WHEN IT PROSECUTED, TRIED AND
CONVICTED APPELLANT OF A CRIME WHERE THE STATUTE OF
LIMITATIONS HAD EXPIRED IN VIOLATION OF HIS SIXTH
AMENDMENT OF THE UNITED STATES CONSITUTION.
ASSIGNMENT OF ERROR V
THE TRIAL COURT ERRED WHEN IT REFUSED THE APPELLANT’S
REQUEST TO FIRE HIS APPOINTED COUNSEL DURING TRIAL
DENYING HIM DUE PROCESS IN VIOLATION OF HIS SIXTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION.
ASSIGNMENT OF ERROR VI
THE TRIAL COURT ERRED WHEN IT CONVICTED APPELLANT OF
RAPE AND CORRUPTION OF A MINOR THAT WAS BASED TOTALLY
ON PERJURED, HEARSAY TESTIMONY IN VIOLATION OF HIS SIXTH
AMENDMENT OF THE UNITED STATES CONSTITUTION.
{¶6} Mr. Sparks argues that the trial court incorrectly denied his motion to correct
sentence. He also argues that the court should have held a hearing on his motion and made
specific findings of fact and conclusions of law in its journal entry.
{¶7} In his motion to correct sentence, Mr. Sparks argued that the trial court violated
his right to due process by not issuing a final appealable order. He argued that the court violated
his rights under the Fifth Amendment by imposing post-release control. He also argued that the
court imposed cruel and unusual punishment by adjudicating him a sexual predator, that it
incorrectly resentenced him for crimes for which he had already completed his prison term, and
that it unconstitutionally applied certain laws retroactively. He further argued that the court did
not have jurisdiction to try him on one of the rape offenses because the State failed to charge him
before the statute of limitations expired.
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{¶8} According to the Ohio Supreme Court, “[if] 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),
syllabus. But see State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, ¶ 10-11 (distinguishing
postsentence motions under Criminal Rule 32.1). Mr. Sparks has also admitted in his appellate
brief that his motion to correct sentence was a petition for post-conviction relief. This Court
notes that Mr. Sparks previously petitioned for post-conviction relief in 2011. The trial court
denied the petition, and Mr. Sparks did not appeal its decision.
{¶9} Revised Code Section 2953.23(A) provides that a trial “court may not entertain *
* * a second petition * * * for [post-conviction] relief” unless “the petitioner was unavoidably
prevented from discovery of the facts upon which [he] must rely to present the claim for relief or
* * * the United States Supreme Court recognized a new federal or state right that applies
retroactively to persons in the petitioner’s situation * * * ” 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. In his motion to correct sentence, Mr. Sparks did not allege,
let alone establish, that he was unavoidably prevented from discovering the facts upon which he
relied. Accordingly, the trial court had to treat the motion as a successive petition for post-
conviction relief, and it correctly determined that it did not have authority to grant the motion.
Id.; State v. Caldwell, 9th Dist. Summit No. 27003, 2014-Ohio-1032, ¶ 13. We, therefore,
conclude that the court did not err when it denied Mr. Sparks’s motion. Mr. Sparks’s third,
fourth, fifth, and sixth assignments of error are overruled.
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{¶10} Regarding Mr. Sparks’s arguments that the trial court incorrectly denied his
motion to correct sentence without issuing specific findings of fact and conclusions of law or
holding a hearing, the Ohio Supreme Court has held that a trial court “has no duty to issue
findings of fact and conclusions of law on successive or untimely petitions for postconviction
relief.” State ex rel. George v. Burnside, 118 Ohio St.3d 406, 2008-Ohio-2702, ¶ 6. The court
also had no obligation to hold a hearing on the motion. State v. Price, 9th Dist. Wayne No.
03CA0046, 2004-Ohio-961, ¶ 10. Mr. Sparks’s first and second assignments of error are
overruled.
III.
{¶11} The trial court correctly determined that it did not have authority to grant Mr.
Sparks’s motion to correct sentence. The judgment of the Summit County Court of Common
Pleas is affirmed.
Judgment affirmed.
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
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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.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
BELFANCE, P. J.
MOORE, J.
CONCUR.
APPEARANCES:
BRYAN SPARKS, pro se, Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.