State v. Jackson

[Cite as State v. Jackson, 2021-Ohio-3115.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 29001
:
v. : Trial Court Case No. 2010-CR-1126
:
DENNIS DEVONE JACKSON : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:

...........

OPINION

Rendered on the 10th day of September, 2021.

...........

MATHIAS H. HECK, JR., by JAMIE J. RIZZO, Atty. Reg. No. 0099218, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee

DENNIS DEVONE JACKSON, #A645-759, Southeastern Correctional Institution, 5900
B.I.S. Road, Lancaster, Ohio 43130
Defendant-Appellant, Pro Se

.............

DONOVAN, J.
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{¶ 1} Defendant-appellant Dennis Devone Jackson appeals from orders of the

Montgomery County Court of Common Pleas, which denied his Motion to Correct an

Illegal/Void Sentence and his Motion for New Trial/Motion to Dismiss. Jackson filed

timely notices of appeal on January 5, 2021.

{¶ 2} We set forth the history of the case in State v. Jackson, 2d Dist. Montgomery

No. 24430, 2012-Ohio-2335 ( “Jackson I”) and repeat it herein in pertinent part:

On the night of March 19, 2010, someone entered Unit 4716 in the

Deer Creek apartment complex, shot Antoine West, and robbed him. Two

other people who were in the apartment at the time, Thomas Horn and

Kimberly Carl, were unharmed. Carl was unable to identify the shooter, and

Horn later gave conflicting statements about whether he could identify the

shooter.

An investigation by the Trotwood Police Department led the

detectives to believe that Jackson had been the assailant, that Jackson shot

West with a gun Jackson had borrowed from an acquaintance, Dion Sims,

and that Jackson had taken a large sum of money from West.

Jackson was indicted on the following offenses: murder (as a

proximate result of aggravated burglary); aggravated burglary (deadly

weapon); murder (as a proximate result of aggravated robbery); aggravated

robbery (deadly weapon); murder (as a proximate result of a felonious

assault); felonious assault (deadly weapon); felonious assault (serious

harm); aggravated burglary (physical harm); and aggravated robbery
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(serious harm). The indictment also contained a firearm specification on

each count.

Before trial, Jackson filed a motion to suppress photo identification

evidence and statements he made to the police during the investigation.

After a hearing, his motion to suppress was overruled.

The case was set for trial on August 30, 2010. On that date, however,

the State informed the court that it had been unable to locate Horn, who

was a key witness. The State requested a continuance and asked the court

to issue a material witness warrant for Horn. The trial court granted the

State's request for a continuance, issued a material witness warrant for

Horn, and reset the trial for three weeks later.

The first trial began on September 20, 2010. At that time, the State

still had not located Horn. Jackson requested a mistrial, however, when one

of the State's witnesses, Dion Sims—who, in Jackson's estimation, was an

alternate suspect—revealed during his testimony that he had taken a lie

detector test. Jackson's motion for a mistrial was granted.

Thereafter, Jackson argued to the court that his right not to be placed

in double jeopardy and his right to a speedy trial had been violated, and he

asked that the charges against him be dismissed. The trial court overruled

the motion to dismiss, and a second trial was scheduled for December

2010. Meanwhile, Thomas Horn was located in October 2010 and was

arrested pursuant to the material witness warrant. Horn's deposition was

taken, in accordance with Crim.R. 15, before he was released from custody;
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he was also served with a subpoena for trial before he was released.

Jackson's second trial was held on December 3 and December 6-

10, 2010. Horn did not appear at trial and could not be located by the police.

The trial court declared Horn unavailable, and his deposition was played for

the jury. In his deposition testimony, Horn claimed not to recall the identity

of the shooter, but he admitted and was cross-examined by the State about

prior statements in which he identified Jackson as the shooter.

The State also presented evidence at trial that Sims had loaned a

gun to Jackson on the day of the shooting and that forensic evidence linked

that gun to the shooting. The State offered testimony from a neighbor of the

victim that a man running from the building after the shooting had worn a

multi-colored jacket, testimony and surveillance video showing that Jackson

had worn a similar jacket earlier in the day, and testimony that the victim

had been in possession of a large sum of cash at the time of the shooting.

No cash was found on the victim's body, and his pants' pockets had been

turned inside out. The State also offered evidence to discredit Jackson's

statements to the police about where he had been at the time of the

shooting, including cell phone records and testimony from the people with

whom he claimed to have been.

The defense did not call any witnesses.

The jury found Jackson guilty on all counts.

The trial court merged the counts of murder and felonious assault

into one count of murder, and sentenced Jackson to fifteen years to life for
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that offense. The trial court also merged the two counts of aggravated

burglary and the two counts of aggravated robbery; the court sentenced

Jackson to ten years for aggravated burglary and ten years for aggravated

robbery, to be served concurrently to one another, but consecutively to the

sentence for murder. All of the firearm specifications were also merged, and

Jackson was sentenced to three additional years of actual incarceration on

the firearm specification.

Id. at ¶ 2-13. Jackson’s aggregate sentence was 28 years to life in prison. Id. at ¶ 1.

Jackson appealed his convictions, and we affirmed the judgment of the trial court in

Jackson I. Id. at ¶ 143.

{¶ 3} Several years later, Jackson filed a motion for new trial, a motion to dismiss,

and a supplemental motion to dismiss in December 2017 and January 2018. Later still,

on April 16, 2020, Jackson filed a motion to correct an illegal/void sentence, which he

also later sought to supplement in May 2020. On December 11, 2020, the trial court filed

two separate entries in which it overruled Jackson’s motion to correct an illegal/void

sentence and his motion for new trial/motion to dismiss. In both entries, the trial court

construed Jackson’s motions as petitions for postconviction relief, and it denied the

petitions as untimely and barred by res judicata.

{¶ 4} As previously stated, Jackson filed a timely notice of appeal of the trial court’s

orders. Jackson filed his merit brief on February 19, 2021, and the State filed its

responsive brief on April 30, 2021. On May 10, 2021, Jackson filed a motion requesting

leave to supplement his brief with an additional assignment of error contained in the

motion. On June 9, 2021, we granted Jackson’s motion to supplement his original brief,
 -6-

and the State filed its response to Jackson’s additional assignment of error the following

day. On June 24, 2021, Jackson filed a reply to the State’s response to his motion

requesting leave to supplement his brief with an additional assignment of error.

{¶ 5} Jackson’s appeals, pro se. Because they are interrelated, we will discuss

all six of Jackson’s assignments of error together as follows:

DID JUDGE PARKER ERR, AND ABUSE HIS DISCRETION WHEN

HE FOUND APPELLANT’S MOTION TO CORRECT ILLEGAL/VOID

SENTENCE WAS BARRED BY RES JUDICATA?

WAS JUDGE PARKER IN ERR [sic] WHEN HE FOUND THE

LANGUAGE IN R.C. 2929.14(B)(1)(G) DID NOT APPLY AT THE TIME OF

APPELLANT’S SENTENCING HOLDING JUDGE TUCKER THEREFORE

DID NOT ACT WITHOUT AUTHORITY, OR CONTRARY TO LAW WHEN

HE APPLIED R.C. 2929.14(D)(1)(B)?

WAS JUDGE PARKER IN ERR [sic] WHEN HE FOUND THAT TO

LENGTHEN APPELLANT’S SENTENCE AN ADDITIONAL 3 YRS.

(FIREARM SPECIFICATION) WOULD VIOLATE THE EX POST FACTO

CLAUSE?

JUDGE PARKER ABUSED HIS AUTHORITY WHEN HE ALLEGED

APPELLANT MADE CONSTITUTIONAL DUE PROCESS CLAIM IN HIS

MOTION FOR LEAVE TO SUPPLEMENT MOTION TO CORRECT

ILLEGAL / VOID SENTENCE? [sic]

DID TRIAL COUNSEL’S FAILURE TO PROVIDE EFFECTIVE

ASSISTANCE OF COUNSEL AT EVERY STAGE OF TRIAL
 -7-

PROCEEDINGS PREVENT AN EFFECTIVE RECORD DURING

APPELLANT’S DIRECT APPEAL FROM CONVICTION ALLOWING HIS

SPEEDY TRIAL RIGHTS PURSUANT [TO] O.R.C. 2945.71-73 FROM

BEING FAIRLY ADDRESSED?

DID THE TRIAL COURT ERR WHEN IT HELD TRIAL JUDGE /

COURT’S UNAUTHORIZE [sic] [AND] UNLAWFUL ACTS OF IMPOSING

SENTENCE OUTSIDE OF OHIO’S STATUTORY MANDATES WERE

VOIDABLE, AND NOT VOID, AND WERE REQUIRED TO BE

CHALLENGE[D] ON DIRECT APPEAL?

{¶ 6} In his first, second, third, and sixth assignments of error, Jackson contends

that the trial court erred when it merged a three-year sentence for a firearm specification

into his aggregate sentence of 28 years to life in prison rather than sentencing him to an

additional three years in prison. In his fourth and fifth assignments of error, Jackson

argues that his speedy trial rights were violated and that he received ineffective

assistance of counsel when his attorney failed to raise the issue prior to his second trial

in 2010.

{¶ 7} Postconviction relief is governed by R.C. 2953.21. The statute provides, in

pertinent part, that:

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
 -8-

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.

R.C. 2953.21(A)(1)(a).

{¶ 8} “A postconviction proceeding is not an appeal of a criminal conviction, but,

rather, a collateral civil attack on the judgment.” State v. Stefen, 70 Ohio St.3d 399, 410,

639 N.E.2d 67 (1994); see also State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679,

860 N.E.2d 77, ¶ 48. To prevail on a petition for postconviction relief, the defendant must

establish a violation of his constitutional rights which renders the judgment of conviction

void or voidable. R.C. 2953.21.

{¶ 9} The postconviction relief statutes do “not expressly mandate a hearing for

every post-conviction relief petition and, therefore, a hearing is not automatically

required.” State v. Jackson, 64 Ohio St.2d 107, 110, 413 N.E.2d 819 (1980). Rather, in

addressing a petition for postconviction relief, a trial court plays a gatekeeping role as to

whether a defendant will receive a hearing. Gondor at ¶ 51. A trial court may dismiss a

petition for postconviction relief without a hearing “where the petition, the supporting

affidavits, the documentary evidence, the files, and the records do not demonstrate that

petitioner set forth sufficient operative facts to establish substantive grounds for relief.”

State v. Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905 (1999), paragraph two of the

syllabus; Gondor at ¶ 51.

{¶ 10} We review the trial court's denial of a petition for postconviction relief for an

abuse of discretion. Gondor at ¶ 52. An abuse of discretion suggests the trial court's

decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5
 -9-

Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 11} Initially, we agree with the trial court that Jackson’s motions were the

functional equivalent of petitions for postconviction relief, which were untimely because

they were not filed within 365 days after the trial transcript was filed with this court in his

direct appeal. See R.C. 2953.21(A)(2). Additionally, none of the statutory exceptions for

filing untimely petitions applied here. See R.C. 2953.23(A).

{¶ 12} The arguments raised in Jackson’s motions established, at most, that his

sentence was voidable. Jackson did not argue that his sentence was not in conformity

with statutorily mandated terms, that it was not provided for by law, or even that it failed

to comply with the formal requirements of R.C. 2941.25. See State v. Parson, 2d Dist.

Montgomery No. 24641, 2012-Ohio-730, ¶ 9. At best, Jackson's sentence was voidable;

thus he was barred by the doctrine of res judicata from challenging his sentence on these

grounds collaterally through his petition for postconviction relief, as he could have raised

the issue regarding the trial court’s failure to sentence him to an additional consecutive

three-year prison term for the second firearm specification in his direct appeal. See State

v. Videen, 2d Dist. Montgomery No. 27479, 2017-Ohio-8608, ¶ 20, citing State v. Russell,

10th Dist. Franklin No. 04AP-1149, 2005-Ohio-4063, ¶ 6-7 (finding res judicata barred

appellant from raising issues in his motion for new trial that could have been raised in his

direct appeal).

{¶ 13} In State v. Reid, 2d Dist. Montgomery No. 25790, 2014-Ohio-1282, we

stated the following:

“Pursuant to the doctrine of res judicata, a valid final judgment on the

merits bars all subsequent actions based on any claim arising out of the
 -10-

transaction or occurrence that was the subject matter of the previous

action.” State v. Collins, 2d Dist. Montgomery No. 25612, 2013-Ohio-3645,

¶ 9, citing Grava v. Parkman Twp., 73 Ohio St.3d 379, 382, 653 N.E.2d 226

(1995). Moreover, “[a]rguments challenging the imposition of a sentence

that is voidable are barred by the doctrine of res judicata if not raised on

direct appeal.” State v. Simons, 2d Dist. Champaign No. 2013 CA 5, 2013-

Ohio-3654, ¶ 42, citing State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-

1197, 884 N.E.2d 568, ¶ 30. (Other citation omitted.) In other words,

“defendants with a voidable sentence are entitled to re-sentencing only

upon a successful challenge on direct appeal.” Id. at ¶ 40, quoting State v.

Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 30.

“[A] voidable judgment is one rendered by a court that has both

jurisdiction and authority to act, but the court's judgment is invalid, irregular,

or erroneous.” Id., quoting Simpkins at ¶ 12.

Reid at ¶ 7-8.

{¶ 14} Furthermore, Jackson’s argument with respect to the trial court’s failure to

sentence him to an additional consecutive three-year prison term for the second firearm

specification is without merit because the error, if any, was harmless. Ordinarily, the

court is forbidden from imposing sentence on multiple firearm specifications for “felonies

committed as part of the same act or transaction.” See former R.C. 2929.14(D)(1)(b), now

R.C. 2929.14(B)(1)(b). However, that section applies only to the extent that former R.C.

2929.14(D)(1)(g) (now R.C. 2929.14(B)(1)(g)) does not apply. Former R.C.

2929.14(D)(1)(g) stated:
 -11-

If an offender is convicted of or pleads guilty to two or more felonies, if one

or more of those felonies are aggravated murder, murder, attempted

aggravated murder, attempted murder, aggravated robbery, felonious

assault, or rape, and if the offender is convicted of or pleads guilty to a

specification of the type described under division (B)(1)(a) of this section in

connection with two or more of the felonies, the sentencing court shall

impose on the offender the prison term specified under division (B)(1)(a) of

this section for each of the two most serious specifications of which the

offender is convicted or to which the offender pleads guilty and, in its

discretion, also may impose on the offender the prison term specified under

that division for any or all of the remaining specifications.

(Emphasis added.)

{¶ 15} Here, the trial court’s failure to impose an additional three-year consecutive

prison term for the second firearm specification benefitted Jackson, because he will

ostensibly serve fewer years in prison. Accordingly, none of Jackson’s substantial rights

were violated, and he suffered no prejudice.

{¶ 16} Finally, Jackson’s arguments in regard to a violation of his speedy trial rights

and his counsel’s failure to raise the issue in the trial court were barred by res judicata.

Initially, we note that we found in Jackson I that Jackson’s speedy trial rights had not been

violated when the trial court denied his motion to dismiss on speedy trial grounds. Thus,

any issue with respect to Jackson’s speedy trial rights has already been litigated, and we

need not address it here. Additionally, “[a]ny ineffective assistance claim relating to

matters contained within the record should be brought through a direct appeal.” State v.
 -12-

Lane, 2d Dist. Greene No. 2014-CA-54, 2015-Ohio-2712, ¶ 13, citing State v. Wilson, 2d

Dist. Montgomery No. 23129, 2013-Ohio-180, ¶ 47-48. “ ‘If an alleged constitutional

error [such as ineffective assistance of counsel] could have been raised and fully litigated

on direct appeal, the issue is res judicata and may not be litigated in a postconviction

proceeding.’ ” Id., quoting State v. Franklin, 2d Dist. Montgomery No. 19041, 2002-Ohio-

2370, ¶ 9, citing State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967).

{¶ 17} In light of the foregoing, Jackson’s six assignments of error are overruled.

{¶ 18} The judgments of the trial court are affirmed.

.............

HALL, J. and WELBAUM, J., concur.

Copies sent to:

Mathias H. Heck, Jr.
J. Joshua Rizzo
Dennis D. Jackson
Hon. Gerald Parker