[Cite as State v. Butler, 2018-Ohio-3558.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 2018CA00034
JAMES CURTIS BUTLER, JR.
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 87-7548
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 4, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO JAMES CURTIS BUTLER, JR., PRO SE
PROSECUTING ATTORNEY #207-638
STARK COUNTY, OHIO Marion Correctional Institution
P.O. Box 57
By: RONALD MARK CALDWELL Marion, Ohio 43301
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2018CA00034 2
Hoffman, J.
{¶1} Defendant-appellant James Curtis Butler, Jr. appeals the February 26, 2018
Judgment Entry entered by the Stark County Court of Common Pleas, which denied his
Motion for Issuance of a Final Appealable Order and Motion for Shock Probation. Plaintiff-
appellee is the state of Ohio.
STATEMENT OF THE CASE AND FACTS1
{¶2} In 1987, then 15 year old Appellant was charged with delinquency by reason
of committing the crime of aggravated murder. The charge arose from the stabbing death
of 74 year old Helen Crawford on August 5, 1987. The Court of Common Pleas, Juvenile
Division, relinquished jurisdiction and bound the case over to the General Division for
prosecution of Appellant as an adult. Appellant waived his right to have the case
presented to a grand jury. After a competency evaluation, Appellant entered a plea of
guilty to one count of aggravated murder.
{¶3} The court sentenced Appellant to a term of life imprisonment with parole
eligibility after 20 years. Appellant appealed, specifically challenging the juvenile court’s
order relinquishing jurisdiction. This Court affirmed the juvenile court’s order. State v.
Butler, 5th Dist. Stark App. No. 7494 (Dec. 12, 1988). Appellant appealed the decision to
the Ohio Supreme Court, which accepted the case for review, and affirmed this Court’s
decision. State v. Butler (1990), 48 Ohio St.3d 78, 549 N.E.2d 516.
{¶4} On February 21, 2001, the trial court conducted a R.C. 2950.09
classification hearing to determine Appellant's status as a sex offender. At the hearing,
1 A full Statement of the Facts is not necessary for our disposition of this Appeal.
Stark County, Case No. 2018CA00034 3
the State introduced several exhibits and presented the testimony of three of the police
officers who investigated the death of Helen Crawford, as well as the father of the female
classmate Appellant had apparently sexual assaulted approximately one month prior to
the Crawford homicide. Based upon this evidence, the trial court found by clear and
convincing evidence Appellant had committed the aggravated murder of Crawford “with
a purpose to gratify [his] sexual needs or desires”, and adjudicated him a sexual predator
pursuant to R.C. 2950.09. Appellant appealed the classification to this Court, which
affirmed. State v. Butler, 5th Dist. No.2001 CA00069, 2002-Ohio-774. The Ohio Supreme
Court accepted jurisdiction, but subsequently dismissed Appellant’s appeal as
improvidently granted. State v. Butler, 98 Ohio St. 3d 1218, 2003-Ohio-2017.
{¶5} On October 24, 2016, Appellant filed a pleading captioned “Motion for
Issuance of a Final Appealable Order and Motion for Shock Probation”. The State
responded, urging the trial court to treat the motion as a petition for post-conviction relief
and arguing such should be summarily dismissed. Via Judgment Entry filed February 26,
2018, the trial court denied the motion. The trial court found, despite the caption, the
motion constituted a petition for post-conviction relief. The trial court found the motion to
be untimely and barred by the doctrine of res judicata.
{¶6} It is from this judgment entry Appellant appeals, raising the following
assignments of error:
I. WHEN A TRIAL COURT DISREGARDS STATUTORY
REQUIREMENTS WHEN IMPOSING A SENTENCE, TWO FATAL
RESULTS OCCUR: (1) THE JUDGMENT IS RENDERED VOID, State v,
Stark County, Case No. 2018CA00034 4
Beasley, (1984), 14 Ohio St. 3d 74, *75; AND, (2) THE DOCTRINE OF RES
JUDICATA IS INAPPLICABLE AS A MATTER OF LAW AND FACT. SEE
State v. Simpkins, 117 Ohio St. 3d 420, at: *23; and *30.
II. WHETHER THE RECHARACTERIZATION OF A PRO SE
DEFENDANT’S MOTION CHALLENGING A SENTENCE THAT IS VOID
ON PURELY STATUTORY GROUNDS, AND WHERE SUCH JUDGMENT
IS ‘FACIALLY VOID’ MAY BE PROPERLY DISMISSES [SIC] AS A POST
CONVICTION RELIEF PETITION.
I, II
{¶7} We elect to address Appellant’s assignments of error together. Appellant
takes issue with the trial court’s treatment of his motion as a petition for post-conviction
relief. Appellant contends, because the motion challenges a void sentence, the trial court
erred in applying the doctrine of res judicata and dismissing the same. We agree, in part.
{¶8} Despite its caption, an appellant's pleading which (1) is filed subsequent to
the expiration of appellant's time for filing a direct appeal; (2) claims the denial of
constitutional rights; (3) seeks to render the judgment void or voidable; and (4) asks the
trial court to vacate the judgment and sentence, is a petition for post-conviction relief
pursuant to R.C. 2953.21(A)(1). State v. Reynolds (1997), 79 Ohio St.3d 158, 160; State
v. Wofford, 5th Dist. Stark No. 2016CA00087, 2016–Ohio–4628, ¶ 15.
{¶9} R.C. 2953.21 governs petitions for post-conviction relief and provides, in
pertinent part:
Stark County, Case No. 2018CA00034 5
(A)(1)(a) Any person who has been convicted of a criminal offense *
* * and who claims that there was such a denial or infringement of the
person's rights as to render the judgment void or voidable under the Ohio
Constitution or the Constitution of the United States, * * * may file a petition
in the court that imposed sentence, stating the grounds for relief relied upon,
and asking the court to vacate or set aside the judgment or sentence or to
grant other appropriate relief. The petitioner may file a supporting affidavit
and other documentary evidence in support of the claim for relief.
***
(2) Except as otherwise provided in section 2953.23 of the Revised
Code, a petition under division (A)(1) of this section shall be filed no later
than three hundred sixty-five days after the date on which the trial transcript
is filed in the court of appeals in the direct appeal of the judgment of
conviction * * *.
{¶10} In his Motion for Issuance of a Final Appealable Order and Motion for
Shock Probation, Appellant raised several challenges to his conviction. Appellant’s
primary challenge was to the validity of the burglary offense as a predicate offense to the
aggravated murder charge under R.C. 2903.01(B), claiming there was insufficient
evidence to support a conviction for burglary. Appellant also asserted the trial court
lacked jurisdiction to accept his plea based upon the Ohio Supreme Court’s holding in
State v. Parker, 95 Ohio State 524, 2002-Ohio-2833. In Parker, the Supreme Court held
Stark County, Case No. 2018CA00034 6
a “defendant charged with a crime punishable by death who has waived his right to trial
by jury must * * * have his case heard and decided by a three-judge panel even if the
state agrees that it will not seek the death penalty.” Id. Further, Appellant argued he is
eligible for shock probation.
{¶11} The trial court found Appellant's arguments regarding State v. Parker,
supra, unpersuasive as Appellant was not charged with a death penalty specification. It
found Appellant’s other arguments were barred by the doctrine of res judicata. “Res
judicata is applicable in all post-conviction relief proceedings.” State v. Szefcyk, 77 Ohio
St.3d 93, 95, 1996–Ohio–337.
{¶12} “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 that judgment of conviction or on appeal
from that judgment.” State v. Snyder, 5th Dist. Tuscarawas No.2015AP070043, 2016–
Ohio–832, ¶ 26 quoting State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967).
Further, it is well established, pursuant to res judicata, a defendant cannot raise an issue
in a motion for post-conviction relief if he or she could have raised the issue on direct
appeal. State v. Duling (1970), 21 Ohio St.2d 13, 50 O.O.2d 40, 254 N.E.2d 670.
{¶13} We agree with the trial court and find Appellant’s arguments relative to the
sufficiency of the evidence and his eligibility for shock probation are barred by the doctrine
of res judicata. We further agree Parker is inapplicable.
{¶14} However, in his Motion for Issuance of a Final Appealable Order and Motion
for Shock Probation, Appellant also argued the trial court’s use of the language he “be
Stark County, Case No. 2018CA00034 7
committed to the appropriate penal institution * * * for the remainder of his life” did not
constitute strict compliance with R.C. 2929.03, and, as a result, rendered his sentence
void.
{¶15} The trial court summarily overruled this argument, noting:
Butler also mentions language about his criminal sentence, jury
waiver, fine, and about a “binary plea” that seemingly relates to a no contest
plea. These arguments are incomplete and illogical, and are barred from
collateral review on res judicata grounds. Butler could have raised these
claims at the trial court or on direct appeal from his conviction and sentence.
February 26, 2018 Judgment Entry at 8.
{¶16} Appellant’s appeal is primarily based upon a claim his sentence is illegal;
therefore, void, because it did not mirror the statute. The State, did not address this
specific argument in its response brief. Appellant’s claim is not based upon an alleged
constitutional violation but rather a statutory violation. As such, we do not find his motion
may be treated as a post-conviction relief petition.
{¶17} “A sentence that is not in accordance with statutorily mandated terms is
void,” and “is not precluded from appellate review by principles of res judicata, and may
be reviewed at any time, on direct appeal or by collateral attack.” State v. Fischer, 128
Ohio St.3d 92, 2010–Ohio–6238, 942 N.E.2d 332, ¶ 8 and paragraph one of the syllabus.
.
Stark County, Case No. 2018CA00034 8
{¶18} Appellant was sentenced pursuant to R.C. 2929.03(A), which provides, in
relevant part:
(A) If the indictment or count in the indictment charging aggravated
murder does not contain one or more specifications of aggravating
circumstances listed in division (A) of section 2929.04 of the Revised Code,
then, following a verdict of guilty of the charge of aggravated murder, the
trial court shall impose sentence on the offender as follows:
(1) Except as provided in division (A)(2) of this section, the trial court
shall impose one of the following sentences on the offender:
(a) Life imprisonment without parole;
(b) Subject to division (A)(1)(e) of this section, life imprisonment with
parole eligibility after serving twenty years of imprisonment;
(c) Subject to division (A)(1)(e) of this section, life imprisonment with
parole eligibility after serving twenty-five full years of imprisonment;
(d) Subject to division (A)(1)(e) of this section, life imprisonment with
parole eligibility after serving thirty full years of imprisonment * * *.
R. C. 2929.03(A).
{¶19} The trial court sentenced Appellant as follows:
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that
the defendant be committed to the appropriate penal institution to be
Stark County, Case No. 2018CA00034 9
determined by the Correctional Reception Center in Orient, Ohio, for the
remainder of his life, or until otherwise pardoned, paroled or released
according to law, on Aggravated Murder, 1 Ct. (R.C. 2903.01) * * * March
22, 1988 Judgment Entry.
{¶20} Appellant asserts this language does not strictly comply with R.C. 2909.03;
therefore, his sentence is void. We disagree. We find the language of the March 22,
1988 Judgment Entry to be functionally equivalent to the statutory language, and such
does not render Appellant’s sentence illegal or void. Because Appellant’s sentence is not
illegal, he cannot collaterally attack the sentence. Accordingly, the trial court did not err
in overruling his motion on this ground, albeit for a different reason.
{¶21} Based upon the foregoing, we find the trial court properly denied Appellant’s
petition.
{¶22} Appellant’s first and second assignments of error are overruled.
{¶23} The judgment of the Stark County Court of Common Pleas is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Baldwin, J. concur