[Cite as State v. Carter, 2018-Ohio-1772.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-18-06
v.
WILLIAM T. CARTER, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR 2009 0186
Judgment Affirmed
Date of Decision: May 7, 2018
APPEARANCES:
William T. Carter, Appellant
Jana E. Emerick for Appellee
Case No. 1-18-06
ZIMMERMAN, J.
{¶1} This case, having been placed on the accelerated calendar, is sua sponte
being moved to the regular calendar.
{¶2} Defendant-appellant, William T. Carter (“Carter”), appeals the January
5, 2018 judgment entry of the Allen County Common Pleas Court denying his
motion to vacate sentences. Because we find the denial was proper as set forth by
the trial court, we affirm the trial court’s decision denying appellant’s motion.
Facts and Procedural History
{¶3} In October, 2009, Carter pled guilty to one count of kidnapping, in
violation of R.C. 2905.01(A)(2), a first degree felony; and one count of aggravated
robbery, in violation of R.C. 2911.01(A)(3), a first degree felony. (Doc. 25). Both
counts carried repeat violent offender specifications pursuant to R.C. 2929.01(C)(C)
and R.C. 2941.149. (Id). Carter was sentenced to ten years on each count plus an
additional consecutive ten years (for each count) for the repeat violent offender
specifications. The trial court ordered the two counts to run concurrent to each
other, for an aggregate 20-year prison term. Carter filed a timely appeal and this
Court reversed defendant’s sentence (due to the trial court’s failure to properly
merge the two offenses prior to sentencing) and remanded the case to the trial court
for a new sentencing hearing. See State v. Carter, 3d Dist. 1-10-04 (Dec. 27, 2010),
unreported.
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{¶4} On April 6, 2011, Carter filed a motion to withdraw his guilty plea in
the trial court. (Doc. 52). On June 16, 2011, the trial court held a hearing on Carter’s
motion and subsequently denied the motion. However, pursuant to our remand
order, a new sentencing hearing was also held in the trial court on that date wherein
the State elected to proceed with sentencing on Carter’s aggravated robbery
conviction. The trial court then resentenced Carter to ten years for aggravated
robbery and ten years for the repeat violent offender specification affiliated with the
aggravated robbery. The trial court ordered the sentences to run consecutively, for
an aggregate 20-year sentence.
{¶5} On July 13, 2011, Carter appealed the trial court’s decision denying his
motion to withdraw his guilty plea. (Doc. 72). And on November 28, 2011, this
Court affirmed the trial court’s decision. (Doc. 88). See State v. Carter, 3d Dist.
Allen No. 1-11-36, 2011-Ohio-6104. On November 10, 2011, Carter filed a notice
of appeal from the trial court’s June 21, 2011 judgment entry of resentencing and
on December 27, 2011, this Court denied Carter’s motion for leave to file this
delayed appeal. (Docs. 82 and 96).
{¶6} Thereafter, on January 13, 2012, Carter filed a petition for post-
conviction relief (Doc. 93), which was denied by the trial court on January 27, 2012.
(Doc. 98). Carter appealed that decision (Doc. 100), and this Court affirmed the
trial court’s decision. (Doc. 107). See State v. Carter, 3d Dist. 1-12-06, unreported.
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{¶7} On March 21, 2013, Carter filed a second petition for post-conviction
relief (Doc. 109), which was denied by the trial court on April 4, 2013. (Doc. 110).
On May 2, 2013, Carter appealed that decision (Doc. 112) and this Court affirmed
the trial court’s decision on October 21, 2013. (Doc. 129). See State v. Carter, 3d
Dist. Allen No. 1-13-26, 2013-Ohio-4637.
{¶8} On June 20, 2013, Carter filed a “motion to vacate void RVO sentence”
(Doc. 118), which was denied by the trial court on June 25, 2013. (Doc. 120).
Carter appealed that decision and this Court dismissed the appeal. (Doc. 130).
{¶9} On May 21, 2014, Carter filed a “motion to withdraw guilty plea” in the
trial court (Doc. 132), which was denied (by the trial court) on May 30, 2014. (Doc.
134). On June 17, 2014, Carter appealed that decision (Doc. 136) and this Court
affirmed the trial court’s decision on November 24, 2014. (Doc. 144). See State v.
Carter, 3d Dist. No. 1-14-23, unreported.
{¶10} On December 27, 2017, Carter filed a “motion to vacate sentences”,
which brings us to the case currently before this court. (Doc. 146). On January 5,
2018, the trial court denied the motion ruling that Carter could have raised that issue
in a prior appeal and thus, was barred by the doctrine of res judicata. (Doc. 148).
{¶11} It is from this judgment that Carter currently appeals, raising the
following assignments of error for our review.
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Case No. 1-18-06
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED AS A MATTER OF LAW AND
TO THE PREJUDICE OF THE DEFENDANT-APPELLANT
WHEN IT TREATED HIS PROPER MOTION TO VACATE
SENTENCES AS A POST CONVICTION PETITION.
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT ERRED IN FAILING TO SENTENCE
THE APPELLANT AS STATUTORILY REQUIRED BY LAW
TO MANDATORY PRISON TERMS ON THE UNDERLYING
OFFENSE AS WELL AS THE REPEAT VIOLENT
OFFENDER SPECIFICATION AND THEREFORE IMPOSED
A SENTENCE THAT IS CONTRARY TO LAW,
UNAUTHORIZED BY LAW AND VOID IN VIOLATION OF
APPELLANT’S DUE PROCESS AND EQUAL PROTECTION
RIGHTS.
{¶12} Due to the nature of Carter’s assignments, we elect to address them
out of order.
Assignment of Error No. II
{¶13} In Carter’s second assignment of error, he contends that the trial court
erred in imposing its sentences and that such sentences (of Carter) are contrary to
law. We disagree.
Res Judicata
{¶14} 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 claimed
lack of due process that “was raised or could have been raised by the defendant at
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the trial, which resulted in that judgment of conviction, or on an appeal from that
judgment”. State v. Perry, 10 Ohio St.2d 175 (1967), paragraph nine of the syllabus.
Further, “[i]t is well-settled that, ‘pursuant to res judicata, a defendant cannot raise
an issue in a [petition] for post-conviction relief if he or she could have raised the
issue on direct appeal’ ”. State v. Lindsay, 5th Dist. Richland No. 16CA39, 2017-
Ohio-595, citing State v. Elmore, 5th Dist. Licking No. 2005-CA-32, 2005-Ohio-
5940, ¶ 21, quoting State v. Reynolds, 79 Ohio St.3d 158, 161 (1997).
Analysis
{¶15} At the outset, we find Carter’s motion to vacate sentences is a petition
for post-conviction relief. We note that due to our reversal of Carter’s first appeal
in 2010 and his subsequent resentencing in the trial court in June, 2011, the prison
sentence in question is set forth in the trial court’s June 21, 2011 entry. (Doc. 69).
We further note that Carter failed to timely appeal his resentencing and we denied
his request to file a delayed appeal. (Doc. 96). Nevertheless, Carter filed his most
recent post-conviction motion (to vacate sentences) in the trial court on December
27, 2017.
{¶16} The trial court may consider an untimely petition for post-conviction
relief pursuant to R.C. 2953.23(A), which states:
(A) Whether a hearing is or is not held on a petition filed pursuant
to section 2953.21 of the Revised Code, a court may not entertain a
petition filed after the expiration of the period prescribed in division
(A) of that section or a second petition or successive petitions for
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similar relief on behalf of a petitioner unless division (A)(1) or (2) of
this section applies:
(1) Both of the following apply:
(a) Either the petitioner shows that the petitioner was
unavoidably prevented from discovery of the facts upon
which the petitioner must rely to present the claim for relief,
or, subsequent to the period prescribed in division (A)(2) of
section 2953.21 of the Revised Code or to the filing of an
earlier petition, 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.
(b) The petitioner shows by clear and convincing evidence that,
but for constitutional error at trial, no reasonable factfinder
would have found the petitioner guilty of the offense of
which the petitioner was convicted or * * *.
(c) The petitioner was convicted of a felony, the petitioner is an
offender for whom DNA testing was performed * * * and
analyzed in the context of and upon consideration of all
available admissible evidence related to the inmate's case * *
* and the results of the DNA testing establish, by clear and
convincing evidence, actual innocence of that felony offense
* * *. R.C. 2153.23(A)
{¶17} In the case sub judice, Carter makes no claim in his motion that results
of DNA testing establish, by clear and convincing evidence, actual innocence.
Additionally, Carter has failed to show any newly-discovered evidence to support
his claim. Carter argues that his sentence is contrary to law because the trial court
imposed a non-mandatory prison term. Any errors as to this issue that were or could
have been raised on his direct appeal are barred under the doctrine of res judicata.
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“Under the doctrine of res judicata, a final judgment of conviction bars the
defendant from raising and litigating in any proceeding, except an appeal from that
judgment, any defense or any claimed lack of due process that the defendant raised
or could have raised at the trial which resulted in judgment of conviction or on
appeal from that judgment.” Perry, supra. Therefore, we cannot find that the trial
court erred by denying Carter’s claim based on the doctrine of res judicata. Thus,
Carter’s second assignment of error is not well taken and overruled due to res
judicata.
{¶18} Based on our findings in Carter’s second assignment of error, we find
that Carter’s first assignment of error is rendered moot.
{¶19} Having found no error prejudicial to the appellant herein in the
particular assignments of error, we affirm the judgment of the trial court.
Judgment Affirmed
PRESTON, J., concurs.
WILLAMOWSKI, P.J., concurring separately.
{¶20} I am writing separately because although I agree with the logic and
result of the majority opinion, I want to clarify that in my opinion res judicata would
not apply if the sentence were truly void. The Ohio Supreme Court has stated that
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since no court has authority to impose a sentence that is contrary to law, if the trial
court does so the principles of res judicata do not prevent appellate review. State v.
Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, ¶ 22. “The sentence
may be reviewed at any time, on direct appeal or by collateral attack.” Id. quoting
State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, at ¶ 30.
Thus, if the sentence were void, as is suggested by Carter, it would be subject to
appellate review.
{¶21} In this case, Carter is arguing that his sentence was void because the
judgment entry did not indicate that his prison terms were mandatory, even though
the statute mandates that they be. Carter’s argument is not supported by statute.
The failure of the court to notify the offender that a prison term
is a mandatory prison term pursuant to division (B)(3)(a) of this
section or to include in the sentencing entry any information
required by division (B)(3)(b) of this section does not affect the
validity of the imposed sentence or sentences.
R.C. 2929.19(B)(8)1. Where applicable, the statute provides a method for the trial
court to correct any error by issuing a nunc pro tunc sentencing entry. Id. Given
the statutory language, there is no basis for finding the sentence to be void.
Therefore, the doctrine of res judicata applies.
1
This statutory section refers to the version in effect at the time of the original sentencing. The current
version contains identical language which can be found at R.C. 2929.19(B)(7).
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State v. Carter
Combined Opinion