rs^^

11',4 7117 SUPP.R4E COURT OF OHIO

STATF, OF OHIO

Plai.n tiff /Appe l lee

CASE NO: i3 - Oi 44

_V,.

P.(}BERT E. JONES

I}efendant/Appell.ant

f)n a,ppeal from the LickingCounty Court of Anpaa1.s FifthAppellate District

C.A. CASE: 2012 CA 00062

NOTICE OF APPEAL OF APP^UANT POBERT JONES

ROBERT E. JC?-NES (202105)Post 4£fice Box 5500Chil.l.icathe, Ohio 45601

DPFEDrDANT/APPFLLANT

EARL L. FROST (0069328)20 south Secc^nd Street, 4th FloorNewark, Ohio 43055

COUNSEL FOR APPELLEE, STATE OF OHIO

FDn' EG"E^V ^10JAN 2 4 2013

CLERK OF COURTSUPREME COURT OF OHIO

PLED^^^^ ^ ^ ? 10 13

CLERK O^ COURTREME COIJRT CF OH!®

NOTICF, OF ^.'PEAL. OF APPELLAff Rt^BER'T JONES

P;r^^^allant Robert Jones hereby gives notice of ;a-)Deal to the Supreme

Court of Chio from the judgment of the Lieking County Court of Appeals,

Fifth Appellate District, entered Ln Court of Appeals Case No. 12( A0061 on

December 24, 2012, date of denial.

This case raises a substantial constitutional question, imrolves a

^elony, and is of -pu..blic or ^^eat general interest.

Pe^^e^^ ' ully ^^bmitted,

a rt esPost ®ffiee Box 5500Chillicothe, Ohio 45601

DE^ ,NPAV'T/.APPELI-AN']:'

IN Z'HE SUPR.FME COt.TRT OF OHIO

STATE OF OHIO

Plaintiff/Appellee

-V-

ROBERT E. JONF'S

Defendant/Appellant

CASE NO:

t)n appeal from the LickingCounty court of Appeals FifthAppellate District

C.A. CkSE: 2012 CA 00061

MMRANDtIM IN SUPPORT OF 3tJP.ISLIGTIONOF APPELt,AiNT ROBERT JONES

ROBERT E. JONES (202105)Post Offzce Box 5500Chillicothe, Ohio 45^0-1

DEFENDA.NT/APPELLANT

F.ARL L. FROST (0069328)20 South Second Street, 4th FloorNewark, Chia 43055

COUNSEL FOR APPELLEE, STATF OF OHIO

TABLE OF CQITM?TS

PAGE(S)

EXPLANATION OF WHY THIS IS A CASE OF PUBLIC OPa GR^"^^T ^ENTRAI. 2INTFREaT AND INVOLVES A SI7BST:ANTIAL CONSTITUTIONAL QTJ7-STICN

STAT7s 777 OF THE CASE AND FACTS 3

PROPOSITION OF LAW T 4

PROPOSITION OF LAW IS 4/5

COtICLUSICN 5

CERTIFICATE OF SERVICE 6

APPENDIX

JU,r`GMFT,l7C E]TRY AND OPINION, COUPT OF APPEALS, FIFTH DISTRICT, LICKING Ct)tNNDEFIEr, DF-C-FM'?FR 3, 2012

MO'ITON FOR RECONSIDERATION DENIED DEC"ER 24, 2012

-i..

EXPL.WAT^^^ OF b°TUY THIS IS A CASE OF PUBLIC OR GRFM Gr IT1'AL11.MF1;F,ST AND SNVOLVES A SUBST,`IAL CONSTITUTION' 0117TSTTONT

In the early ^rt of 2010, this Honorable Court 'revisited Chapter

§2941.25, otherwise knoivm as the Allied Offense statute, as defined by this

Court in State v. Johnson. Prior to your ruling, the courts were misapplying

or ignoring the application of Al1.ied. Offenses of Similar IrnT>ort.The

legislative intent of t'^R statute was given rrorn- clarity and the duty of the

courts to give effect of the words used and not ignore the plain and

un,im*i. ;uaus l.an^-,va-,e under the guise of judicial interpretation.

Morosvpr, I:ais Court corr-luded that '^jai,n error" under Crim.R. 52(B)

exits ^^hera there is an obvious deviation from a Zegal rule which affected

the outcome of the proceeding.

This Coa.irt's railing upholds the tenets of the Eighth Amendment of the

United States Constitution, which prohibits multiple punishments for the

same crime.

Appellant herein respectfully requests this Court aceept Jurisdic.tion

r . _' d' ." the ^a^4`'^ and s„^":^' a?^^^'^tin-^ nfand find ^^1^^ ^^^' `^C^u^^11 4::e,`7itq.,' 9t^:zaw.^. ^ei^^ai..^ ^:nw.a."`"^,^.,:^^..^^

analysis in effectuating the merger statute.

Pg. 2

STATEMM OF THE CASE AND T14E FACTS

On or about March, 1988, Robert Jones, hereinafter Appi-llant, by and

through counsel, pled to three counts of ra.-pe, which starnrr:ed fr(xn a sin^Ie

occurrence involving a window of time of seventeen minutes. Th-- n--gotiatad

plea consisted of the assurances of serving no less tl^uan ten years of

imprasoment, and more importantly, serving no more than twenty-five years

for all eoun ts.

On or about May, 2012, Appellant filed a motion to the trial. court to

marge his sentences in cc,mplianc.e with the statute and as clarified by this

Court in State v. Johnson.

On or about Septernber, 2012, ^^allant timely filed notice of ar)Daa.1 to

the Fifth Appellate District for its di ^^^tion to sua sponte eonsi^,:^r tli,a

tri.al court' s plain P-rror.

On December 3, 2012, the Fifth Appellate District rendered their

opinion and affirmed t1he judgmant of the trial coLirt.

On, Decembe^.̂ - 10, 2012, Appellant timely filed a Motion for

Reconsideration for the obvious errors in their opinion and dissp-nt in the

case sub judice.

On December 24, 2012, the Fifth Appellate District denied said review

and Appellant now respectfully submits his iMemarandum in Sua^art of

Jurisdiction for this Court's determination as justice so requires.

Pg.3

PROPOSITION OF LAW I

qiether the courts abused their discretionin t^p-ir application of res judicata

As the record concurs, and misapplying State v. Schlee-, 117 Ohio St.3d

153 (2008), the Fif. t̂ h ApT)allate District construed Appellants mat^^^ as a

motion for past-canvic^ tion relief pursuant to R.C. §2953. 21(,4) ( 2 ). 11^ ^3ever,

the citation of authority relied upon does not override the 1 , 71 l.ata.,ve

pellant the right --a appealprovisions of R.C. §2953.08 vjhi^^ clearly gave Ap

a sentenca contrary to law at any time.

As this Court ruled In Taylor v. Ernst & Young, L.L.P., 130 Ohio St.3d

411, 426, 2011-Ohio-5262, 958 N.E.2d 1203, 1218, a decision as set fart^. by

this Court averrtiling a farrer de^.isian is retraspective in its operation,

and the effect is not that the forrnar [deca.sfon3 was bad law, but that it

never was the law.

The doctrine of res judicata has been r^ctifip-d by this Court as this

doctrine is not applacable where no statutory auttiority exists to supWrt

the judgment or to any ^e-iltence or Judgment that is vaia'. State v. i^^^ey,

kins,pFranklin App. No. 06AP-20006245, 2006-Ohio-6429, quating State v. Sim

i.d @ q13, 884 N.E.2d. 568.

PROPOSITION OF I.^.A,^4 II

tsb^ther the courts abused their discretionin their failure to merge all counts

In abandoning the abstract inquiry as previously held in State v. Rance

(1999), 85 Ohio St.3d 632, 710 N.E. 2d 699, this Court held in plurality,

the a-pplicati:an of the legal elements to provide a context for exanining

Pg.4

the of:fanier's conduct in relation to the offenses. In State v. Johnson, 128

Ohin St.3d 153, 2010-Chio-6314, 942 N.E.2d 1061, t'ha- requisite test did not

oompl^^ely eliminate consideration of tln^ elements; it simply made the

offender's con^luW^ the lynr:^^pln of the ^ina1ysis. This abandoment of the

abstract cempari mns, prior judicial cletermzn^tions that offenses are allied

may be helpful, but are no longer da.spos:i.tivp. State v. McCullough, Favet^^

App. No(s). CA2014-04-006 and CA2010--04-008, 2011-Chio-•992.

In erni-Aoyin^ the Joh analysis, it is ^ opyi n: n;ly clear that the

offenses wsre comi.tted, with the same wntinuous cond;rtci; perfonne:l with a

single state of mind and MUSA be Tler^ed. This rluty is mandatory, not

discretionary.

CONat1SION

For ^^e above stated reasons, this Court should accept jurisdiction.

Res-pectfully^

^ s^.^,tted,^ ; A.- ^-r i^.

Ro: . rt Jo(YesPost Office Box 5500Chillicothe, Ohio 45601

D =,,^'^AN T/APPMANT

Pg,.5

CERTIFICATE OF SERVICE

I hereby certify t'Liat the faarego:i.ng Notice of Appeal and Memorandum inSupoort of Jurisdiction was fcarcvarded by rp-gular U,S. mail to Earl &Qst, 20So. 5e: ond Street, 4th Floor, Newark, Ohio 43055 on tha.^,2A day of January,2013.

-`_^obatt Jones

Dff FNIP^.̂ °'I/APPEL?LANT

Pg.6

IN THE ,UPRF)ME COURT OF OHIO

t' ACE WtJ •w sSTATE OF OHIO

P1.aa.ntiff/ApPe7.lee

_VI

On appeal from the LickingCounty Court of Appeals FifthAppellate District

P4VBP,+.L E. JONESi l,,,i+t1r ^lL,:.+°a LAI^ ^„aL"^'4'VLJS

Defendant/Appellant APPENDIX TO

MEWRANDLM IN SUPPORT 0-F "ISDTCTIflNOF APPELLAra POB^.'T JONES

t ^^

^ --^,COURT OF APPEALS s ^ r T

LICKING COUNTY, OHIO ^ ^. _FIFTH APPELLATE DISTRICT 2`^12 AM 55

r F: C`r! T

• ^=; ^

STATE OF OHIO

PEaintiff-Appeflee

JUDGES:Hon. Patricia A. Delaney, P.J.Hon. John W. Wise, J.Hon. Sheila G. Farmer, J.

-vs-

ROBERT E. JONES

Defendant-Appellant

CHARACTER OF PROCEEDING:

Case No. 12CA0061

OPINION

Appeal from the Court of CommonPleas, Case No. 87CR16767

JUDGMENT:

DA T E OF JUDGMENT:

APPEARANCES:

For Plaintiff-Appellee

EARL L. FROST20 South second Street4th FloorNewark, OH 43055

Affirmed

For Defendant-Appellant

ROBERT E. JONES, PRO SEP.O. Box 5500Chillicothe, OH 45601

40/ i3?

Licking County, Case No. 12CA0061 2

Farmer, J.

{¶1} On March 17, 1988, appellant, Robert Jones, pled guilty to three counts of

izs h-viviattom-oi R.-.-29-0 .

filed same date, the trial court sentenced appellant to an indeterminate term of ten to

twenty-five years on each count, to be served consecutively.

{¶2} On March 13, 2012, appellant filed a motion for resentencing, claiming his

three rape convictions should have been merged for sentencing. By judgment entry

filed June 20, 2012, the trial court treated the motion as a motion for postconviction

relief, and denied the motion as untimely and barred by the doctrine of res judicata.

{¶3} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

{¶4} "WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN

APPLYING THE DOCTRINE OF RES JUDICATA."

11

r^z^} "XnvHETHEI? Tul= TRIAI COURT ABUSED ITS DISCRETION INtn ,,^ •

SENTENCING APPELLANT TO CONTRARIAN LAW."

III

{¶6} "WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING

TO MERGE SENTENCES."

I, II, III

{¶7} Appellant claims the trial court erred in denying his motion for

resentencing. We disagree.

13^

i_.Icking County, Case No. 12CA0061 3

{T8} On March 17, 1988, appellant pled guilty to three counts of rape and was

sentenced to an indeterminate term of ten to twenty-five years on each count, to be

rved- consecutiveCy.-Appelia-n

{¶9} On March 13, 2012, appellant filed a motion for resentencing, claiming his

three rape convictions should have been merged for sentencing. By judgment entry

filed June 20, 2012, the trial court treated the motion as a motion for postconviction

relief pursuant to State v. Schlee, 117 Ohio St.3d 153 (2008), and State v. Williams, 9th

Dist. No. 25879, 2011-Ohio-6141. The trial court denied the motion as untimely and

barred by the doctrine of res judicata

{¶10} R.C. 2953.21 governs petition for postconviction relief. Subsection (A)(2)

states the following:

{¶11 } 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 one hundred eighty days after the date on which the trial transcript is

r:___r :... tt_,^ ^,.^ ...+ ,..F ^ .,I^, in +h . .-l;r.^.•+ - appeal̂I r,f +ho ii i A nmont nfI I^CC.! fl I q IC I.VUI l VI appeals II 1 LI Ic u11 ^t,l QpNectl vi the j u'.ayri rvi it vi

conviction or adjudication or, if the direct appeal involves a sentence of

death, the date on which the trial transcript is filed in the supreme court. If

no appeal is taken, except as otherwise provided in section 2953.23 of the

Revised Code, the petition shall be filed no later than one hundred eighty

days after the expiration of the time for filing the appeal.

139

LEcking County, Case No. 12CA0061 4

{¶12} Appellant filed his motion almost twenty-four years after the expiration of

the time for filing an appeal, and has not met any of the requirements for untimely filing

^ 9 appeltat^

motion was untimely.

{¶13} In addition, appellant's arguments are barred by the doctrine of res

judicata. As stated by the Supreme Court of Ohio in State v. Perry, 10 Ohio St.2d 175

(1967), paragraphs eight and nine of the syllabus, the doctrine of res judicata is

applicable to petitions for postconviction relief. The Perry court explained the doctrine

at 180-181 as follows:

{¶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 any claimed lack of due process that was raised or could have

been raised by the defendant at trial, which resulted in that judgment of

..V.... : t:,. .. .. r .. - .. - ,. Y 1 4- +4,. + ;. „d`.r,,.^.'+cvt rvrc:utrt i , vi, vi i ai i aNpe

^.ai rr vl i iLr iaL Juuyi iIUi rL.

{¶15} In reviewing appellant's motion for resentencing, we find the arguments

therein could have been raised on direct appeal.

{¶16} Upon review, we find the trial court did not err in denying appellant's

motion for resentencing.

{¶17} Assignments of Error I, II, and III are denied.

No

Llcking County, Case No. 12CA0061 5

{%18} The judgment of the Court of Common Pleas of Licking County, Ohio is

hereby affirmed.

By Farmer, J.

Delaney, P.J. and

Wise, J. concur.

-^-^-

JUDGES

SGF/db 1120

^4^

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

1 LE DFIFTH APPELLATE DISTRICT

20 it O`C 2u A 8: 552

STATE OF OHIO^:;,L; K OF COURTS

OF APPEALS4lCKINC COUN7YOH

G A RY R. WALTMPlaintiff-Appellee

V.

ROBERT E. JONES

Defendants-Appellant

JUDGMENT ENTRY

^

CASE NO 12CA0061

This matter is before this court upon appellant's motion for reconsideration of this

court's decision entered December 3, 2012.

The test generally applied upon the filing of a motion for reconsideration in the court

of appeals is whether the motion calls to the attention of the court an obvious error in its

decision, or raises an issue for consideration that was either not considered at all or was

not fully considered by the court when it should have been. Matthews v. Matthews, 5 Ohio

App.3d 140 ( 10th Dist. 1981).

Upon review, we do not find an obvious error or an issue that was not considered or

was not fully considered.

Appellant's motion is denied.

3t-0

P^ ^ ^, a