[Cite as State v. Osco, 2015-Ohio-45.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2014-P-0010
- vs - :
KODY M. OSCO, :
Defendant-Appellant. :
Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2012 CR
00702.
Judgment: Affirmed.
Victor V. Vigluicci, Portage County Prosecutor, and Kristina Drnjevich, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Kody M. Osco, pro se, PID: A640-807, Richland Correctional Institution, P.O. Box
8107, 1001 Olivesburg Road, Mansfield, OH 44905 (Defendant-Appellant).
THOMAS R. WRIGHT, J.
{¶1} Appellant, Kody Osco, appeals two judgments issued in his criminal case.
In the first judgment, dated February 21, 2014, the trial court denied appellant’s motion
to declare his sentencing order void. In the second judgment, dated March 12, 2014,
the trial court overruled Osco’s motion for findings of fact and conclusions of law
regarding the first judgment. Appellant asserts that his sentence must be vacated
because the state did not abide by the terms of the plea agreement.
{¶2} Two separate criminal cases were brought against appellant within a sixty-
day period in late 2012. In the first case, Portage C.P. No 2012 CR 00584, appellant
was indicted on one count of felonious assault and two counts of escape. In the second
case, Portage C.P. No. 2012 CR 00702, he was indicted on one count of burglary and
two counts of receiving stolen property.
{¶3} The two cases were not consolidated but were assigned to the same trial
judge. Furthermore, the proceedings in both cases followed similar paths. In January
2013, appellant and the state reached a plea agreement covering both cases. In
exchange for the dismissal of the other four counts, appellant agreed to plead guilty to
felonious assault in case number 00584 and burglary in case number 00702, both
second-degree felonies. The state further agreed to “stand silent” at sentencing. A
copy of the written plea agreement was entered on the record in both cases.
{¶4} After accepting the guilty plea, the trial court ordered the preparation of a
presentencing investigative report. On March 18, 2013, a sentencing hearing was held
regarding both cases. During this proceeding, despite agreeing to stand silent, the
assistant prosecutor recommended two concurrent seven-year terms. Appellant and his
trial counsel did not object to the recommendation which was consistent with the
presentencing report. At the end of the hearing, the trial court adopted the sentencing
recommendation and also ordered appellant to pay restitution.
{¶5} Three days after the sentencing hearing, the trial court issued sentencing
judgments in both cases. Consistent with the oral pronouncement, the court sentenced
appellant to two concurrent seven-year terms. Appellant did not appeal either of the
sentencing judgments.
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{¶6} Approximately two months later, in May 2013, appellant filed a motion to
withdraw his guilty pleas in both cases. In an affidavit attached to the motion, he
asserted two arguments in support: (1) the assistant prosecutor breached the plea
agreement by making a sentencing recommendation; and (2) he was denied effective
assistance of counsel during the combined trial proceedings. Before the state filed a
response, and without hearing, the trial court overruled the motions to withdraw. Again,
appellant did not pursue an appeal of this judgment.
{¶7} Eight months later, in February 2014, appellant moved the trial court to
declare the sentencing judgments in both cases void. Although the argumentation in
these motions were more elaborate, they primarily reasserted the two basic points that
formed the basis of the motion to withdraw the guilty plea; i.e., he again maintained that
his seven-year sentence could not stand because the plea agreement was breached
and he was denied effective assistance. The trial court issued a one-sentence
judgment in both cases overruling the request to declare the sentencing judgments void.
{¶8} Within twenty days of the ruling on the foregoing motion, appellant moved
for findings of fact and conclusions of law. As the basis for the latter motion, he
asserted that the denial of his motion to declare the sentencing judgments void would
remain interlocutory until factual findings and legal conclusions were issued. One day
after the submission of the request for findings and conclusions, the trial court again
rendered a one-sentence judgment in both cases that denied the motion without any
discussion of its merits.
{¶9} Appellant appeals the trial court’s February 21, 2014 and March 12, 2014
orders. He raises a single assignment of error for review:
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{¶10} “The trial court improperly denied the defendant-appellant’s Kody Osco,
motion to have his criminal sentence declared void, and/or invalid, due to the
prosecuting attorney, Mr. Victor Vigluicci, breaching the written, and signed, plea
contract agreement that was accepted by the judge and signed. There shall have been
a hearing held by the trial court, or facts, findings, or conclusions, and/or an appealable
order provided.”
{¶11} As the wording of the assignment establishes, appellant’s brief essentially
reasserts the substance of his two motions at the trial level. For the following reasons,
this court concludes that, in ruling upon the motion to declare the sentencing judgments
void, the trial court was not obligated to render findings of facts and conclusions of law.
We further conclude that the merits of the “void” motion are not properly before us in
this appeal.
{¶12} As noted above, the motion to declare the sentencing judgments void was
predicated upon two arguments: (1) the state failed to comply with the terms of the plea
agreement; and (2) he was denied effective assistance when his trial counsel failed to
object to the breach during the sentencing hearing. Before both the trial court and this
court, appellant contends that both arguments are constitutionally based. First, he
asserts that the breach of the “sentencing” term violated his constitutional rights to due
process. Second, he maintains that his trial counsel’s actions resulted in a violation of
his Sixth Amendment rights.
{¶13} When a post-judgment motion in a criminal case seeks the vacation of the
imposed sentence on the grounds that a constitutional violation occurred during the trial
proceedings, the defendant’s motion will be deemed a petition for postconviction relief.
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State v. Timmons, 10th Dist. Franklin No. 11AP-895, 2012-Ohio-2079, ¶6, quoting State
v. Reynolds, 79 Ohio St.3d 158, 160 (1997). Therefore, although appellant captioned
his first submission as a motion to declare the sentencing judgments void, it constitutes
a petition for postconviction relief under R.C. 2953.21.
{¶14} Pursuant to R.C. 2953.21(C) and (G), a trial court is statutorily mandated
to compose and issue findings of fact and conclusions of law on each claim stated in a
postconviction petition. See State v. Dilley, 8th Dist. Cuyahoga No. 99680, 2013-Ohio-
4480, ¶7. However, this duty does not apply if the petition is subject to dismissal on the
basis that it was untimely filed. State ex rel. James v. Coyne, 114 Ohio St.3d 45, 2007-
Ohio-2716, ¶5.
{¶15} R.C. 2953.21(A)(2) provides that, if a defendant does not pursue a direct
appeal of his conviction, his petition for postconviction relief must be submitted within
180 days after the expiration of the thirty-day period for filing the appeal. This time limit
for filing the postconviction petition is considered jurisdictional. Dilley, ¶10. Thus, a trial
court loses its authority to rule upon the merits of a petition when it is untimely filed. Id.
{¶16} In each of appellant’s criminal actions, the final sentencing judgment was
filed on March 21, 2013; accordingly, the last day he could have filed a direct appeal of
either of his convictions was April 22, 2013. The record further shows that appellant did
not file his postconviction petition; i.e., his motion to declare the sentencing judgments
void, until February 18, 2014. Hence, he did not comply with the statutory time limit for
filing his petition because 301 days elapsed between the end of the “appeal” period and
the date he submitted his petition.
{¶17} In his “void” motion, appellant did not contend that the running of the 180
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day time limit had been tolled for one of the permissible reasons listed in R.C. 2953.23.
Therefore, the denial of appellant’s motion was justified on the basis that, as a petition
for postconviction relief, it was not timely filed. In turn, the trial court had no obligation
to issue findings of fact and conclusions of law in support of its decision.
{¶18} Moreover, even if appellant’s motion to declare the sentencing judgments
void had been timely filed, the doctrine of res judicata would have barred the trial court
from reviewing the merits of the two constitutional arguments. As to the application of
the doctrine in a criminal case, the Supreme Court of Ohio has stated:
{¶19} “Under the doctrine of res judicata, a final judgment of conviction bars a
convicted defendant who was represented by counsel from raising and litigating in any
proceeding, except an appeal from that judgment, any defense or any claimed lack of
due process that was raised or could have been raised by the defendant at the trial,
which resulted in that judgment of conviction, or on an appeal from that judgment.”
State v. Szefcyk, 77 Ohio St.3d 93, syllabus, following State v. Perry, 10 Ohio St.2d 175
(1967), paragraph nine of the syllabus.
{¶20} According to appellant’s own assertions, the state’s alleged breach of the
plea agreement and trial counsel’s alleged ineffective assistance took place during the
sentencing hearing. Given that the entire sentencing hearing was recorded and a
transcript of that proceeding exists, appellant could have advanced the alleged
constitutional errors on direct appeal. Because appellant did not appeal either of the
sentencing judgments rendered in the two underlying cases, the doctrine of res judicata
would bar him from asserting his constitutional arguments in any type post-judgment
motion.
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{¶21} Alternatively, if appellant needed additional evidence from outside the
record to show the alleged constitutional violations, one appropriate way to assert his
arguments would have been a postconviction petition. However, when the alleged
errors in a trial proceeding pertain to a guilty plea, the defendant can also use a motion
to withdraw the guilty plea as a means of presenting evidence outside the record. See,
e.g., State v. Woody, 8th Dist. Cuyahoga No. 99774, 20014-Ohio-302, ¶13, citing State
v. Smith, 17 Ohio St.3d 98, 101 (1985), fn. 1.
{¶22} In each of the underlying actions, appellant moved to withdraw his guilty
plea approximately sixty days after the sentencing judgments were issued. The bases
for the motion to withdraw were the same two arguments he raised in his subsequent
motion to have the sentencing judgments declared void. After the trial court overruled
the motion to withdraw, appellant did not appeal that ruling to this court. Hence, again,
since appellant had a full opportunity to litigate the “breach” and “ineffective assistance”
issues, the doctrine of res judicata bars him from asserting those issues again in a
subsequent post-judgment motion or petition. Woody, at ¶12, quoting State v.
Montgomery, 8th Dist. Cuyahoga No. 99452, 2013-Ohio-4193, ¶42.
{¶23} Regarding the “breach” issue, appellant contends that the actions of the
assistant prosecutor deprive the trial court of subject matter jurisdiction over the cases,
thereby rendering the sentencing judgments void. Although not expressly argued in his
brief, appellant’s position appears to be that, since the breach affected the trial court’s
authority to proceed, it can be asserted at any time in the proceedings. But, even if it is
assumed, solely for the sake of this argument, that the state’s breach of a plea bargain
can deprive a trial court of jurisdiction to proceed, an issue relating to a court’s subject
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matter jurisdiction “can be waived when it is fully considered at the trial level and no
timely appeal is taken from the trial court’s ruling * * *.” Citimortgage, Inc. v. Oates, 11th
Dist. Trumbull No. 2013-T-0011, 2013-Ohio-5077, ¶24. Therefore, appellant’s failure to
appeal the trial court’s denial of his motion to withdraw the guilty plea bars him from
raising the “breach” issue again in a subsequent post-judgment motion.
{¶24} Although the trial court did not state the grounds for its decision to overrule
appellant’s motion to declare the sentencing judgments void, the foregoing discussion
demonstrates that valid reasons to deny his request for relief existed. Furthermore,
because appellant’s motion was subject to dismissal as an untimely petition for
postconviction relief, the trial court had no duty to issue findings of fact and conclusions
of law. Thus, as the trial court did not err in its disposition of the motions to declare the
sentencing judgments void and for findings of fact and conclusions of law, appellant’s
sole assignment of error is without merit.
{¶25} The judgments of the Portage County Court of Common Pleas are hereby
affirmed.
TIMOTHY P. CANNON, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.
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