[Cite as State v. Stanley , 2013-Ohio-306.]

IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO

STATE OF OHIO : Plaintiff-Appellee : C.A. CASE NO. 2012 CA 17

v. : T.C. NO. 05CR78 LOTTIE MAE STANLEY : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

. . . . . . . . . . O P I N I O N

Rendered on the 1st day of February , 2013.

. . . . . . . . . . STEPHANIE R. HAYDEN, Atty. Reg. No. 0082881, Assistant Prosecutor, 55 Greene Street, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee LOTTIE MAE STANLEY, #06186-067, FMC Carswe ll Medical Center, P. O. Box 27137, Fort Worth, Texas 76127 Defendant-Appellant

. . . . . . . . . . DONOVAN, J. {¶ 1} This matter is before the Court on the pro se Notice of Appeal of Lottie M.2 Stanley, filed February 6, 2012. Stanley a ppeals from the December 20, 2011 denial of her “Motion to Run Terms of Imprisonment Concurre nt.” We hereby affirm the judgment of

the trial court. {¶ 2} On July 15, 2005, Stanley pled no contes t to one count of receiving stolen property, in violation of R. C. 2913.51(A), one count of thef t, in violation of R.C. 2913.01(A)(3), and two counts of forgery, in viol ation of R.C. 2913.31(A)(3 ), all felonies of the fifth degree. The plea form, signed by Stanley, provides: “In consideration of the Defendant’s pleas of no contest to the charges in the indictment, the State of Ohio would stipulate 1 year sentence to run consecutive to sentences the Defendant is currently serving in the State and Federal system.” The Judg ment Entry of Convic tion provides that “Defense counsel and the pros ecutor’s office have agreed to disposition in accordance with O.R.C. §2953.08(D).” Stanley was sentenced to 12 months. Specifically, she was sentenced to six months on each offense, with the sentences for theft and forgery to run concurrently to each other but consecutively to the six month sentence for receiving stolen property. The aggregate 12 month sentence was ordered to be served consecutively to a previously imposed federal sentence. In a direct appeal, Stanley asserted that her pleas were involuntary. However, this Court affirmed her conviction and sentence on July 21, 2006. {¶ 3} Stanely filed her “Motion to Run Terms of Imprisonment Concurrent” on December 14, 2011, asserting that “as a result of the consecutive sentence to be served in this case, Petitioner will be subject to an excessive term of incarceration which is not in the interest of justice and which woul d not be cost effective in the interest of the general public.” In its Judgment Entry, the trial court noted that the “Supreme Court of Ohio has recognized3 that a trial court lacks authority to reconsider its own valid final judgment in a criminal case, unless the sentence is void or to correct a clerical error. State, ex rel., Cruzado v. Zaleski (2004), 111 Ohio St.3d 353.” The court noted that Stanley did “not suggest the sentence is

void or that there is a clerical error.” The court concluded th at it “is without jurisdiction to

decide this motion.” {¶ 4} We initially note that the State asserts that Stanley’s appeal from the trial court’s decision is untimely. We disagree. We find that the order overruling Stanley’s “Motion to Run Terms of Imprisonment Concurre nt” to be final and appealable as it stems from a postconviction proceeding. See, e.g., State v. Reynolds , 5th Dist. Richland No. 09-CA-13, 2009-Ohio-3998. An action for postconvi ction relief is a civil proceeding.

State v. Nichols , 11 Ohio St.3d 40, 42, 463 N.E.2d 375 (1984). {¶ 5} App.R. 4(A) provides that “[a] party shall file the notice of appeal * * * within thirty days of the later of entry of the judgment or order appealed or , in a civil case, service of the notice of judgment and its entry if service is not made on the party within the three day period in Rule 58(B) of the Ohio Rules of Civil Procedure. ” (Emphasis added.) {¶ 6} Civ.R. 58(B) mandates that a trial judge direct “the clerk to serve upon all parties not in default for failure to appear notice of the judg ment and its date of entry upon the journal.” Service then becomes comple te only upon the clerk serving the parties and noting such service in the appearance docket. In the present matter, the trial court did not expressly order the clerk to serve the notice of the judgment to the parties, nor did the clerk issue notice of the order to the parties. Therefore, the time for filing a notice of appeal, pursuant to App.R. 4(A), never began to run. See In re Anderson , 92 Ohio St.3d 63, 67, 7484 N.E.2d 67 (2001). {¶ 7} Stanley’s brief does not set forth specific assigned errors. She “‘Prays’ this Honorable Court grant her State of Ohio Senten ce to run with her Federal Sentence.” R.C. 2953.08 governs appeals based on felony sent encing guidelines, and R.C. 2953.08(D)(1) provides that a “sentence imposed upon a defenda nt is not subject to review under this section if the sentence is authorized by law, has been recommended jo intly by the defendant and the prosecution in the case, and is imposed by a sentencing judge.” {¶ 8} Stanely’s sentence is authorized by law. R.C. 2929.14(A)(5). Her sentence was recommended jointly by the State and Stanley, and it was imposed by a sentencing judge. {¶ 9} Further, the Ohio Supreme Court, in State v. Perry , 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), syllabus at ¶ 9, determined: Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was repres ented by counsel from raising and litigating in any proceeding except an a ppeal 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 resu lted in that judgment of conviction, or on an appeal from that judgment. {¶ 10} Stanley did not raise any issues with respect to the stipulated sentence in her direct appeal, and her argument regarding he r sentence is barred by the doctrine of res judicata. {¶ 11} The judgment of the tr ial court is affirmed.[Cite as State v. Stanley , 2013-Ohio-306.]

. . . . . . . . . . HALL, J., dissenting: {¶ 12} I agree that the trial court’s denial of the defendant’s “Motion to Run Terms of Imprisonment Concurrent” should not be di sturbed. I write separa tely to express my opinion that the appeal is untimely and should be dismissed. {¶ 13} I would not construe the defenda nt’s “Motion to Run Terms of Imprisonment Concurrent” to be a petiti on for post-conviction relief. R.C. 2953.21(A)(1)(a) provides that “one who claims that there was su ch a denial or infringement of the person's rights as to render the judg ment 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.” {¶ 14} The defendant’s motion does not specifically raise any constitutional issue. The only reference in the motion that arguably could be construed to raise a constitutional issue is “[t]hat as a result of the consecutive sentence to be served in this case, Petitioner will be subject to an excessive term of incarceration which is not in the interest of justice and

which would not be cost effective in the in terest of the general public.” I would not construe that language to claim denial of a constitutional right to be free from cruel and unusual punishment, and I cannot conceive of any other cons titutional right that would apply. The tenor of the motion is a request to modify the sentence to make it concurrent with

the federal sentence the defendant is serving. Without any argu ed or apparent constitutional issue, I do not believe the moti on qualifies as a petition for post- conviction relief. Therefore, the time for appeal of the trial court’s deci sion began to run on the date of the decision,6 December 20, 2011, and the filing of the Notice of Appeal on February 6, 2012 was too late. That would not prevent the defendant from seek ing leave to file a delayed appeal under App. R. 5(A)(1)(a), but he has not done so. Rather than affirm, I would dismiss the appeal as untimely. {¶ 15} I am constrained to note that charact erizing a post-conviction pleading as a petition for post-conviction re lief under R.C. 2953.21 instead of some sort of criminal motion can be a delicate and, for the defendant, a disastrous determin ation. The line between a post-conviction criminal motion and an R.C. 2953.21 petition is not always clear. For instance, if a defendant’s pleading is a request to vacate his plea for reasons that are of constitutional dimension, is that a motion to withdraw his plea under Crim.R. 32.1, for which one set of rules and legal analysis applies, 1 or is that a petition for post-conviction relief for which the specific statutory procedure and analysis apply? 2 There is a myriad of

other motions that convicted defendants f ile, and some pleadings can, and should, be characterized as petitions for post- conviction relief a nd some not.

1 Crim. R. 32.1 allows the withdrawal of a plea after conviction only “to correct manifest injustice.” The defendant must establish manifest injustice, the motion is addressed to the sound discretion of the trial court, and relief is “allowable only in extraordinary cases” State v. Smith , 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977).

2 Petitions for post-conviction relief are governed by R.C. 2953.21 through R.C. 2953.23 and Crim R. 35. The petition must be filed within the later of 180 days after expiration of th e time for appeal, if there is no direct appeal, or 180 days a fter filing of the trial transcript in the court, if an appeal was taken. There are statutory exceptions to the time requirement. The petit ion is considered a collateral civil attack on the judgment. State v. Steffan , 70 Ohio St.3d 399, 410, 639 N.E.2d 67 (1994). By statute, either party may move for summary judgment. R.C. 2953.21(D).[Cite as State v. Stanley , 2013-Ohio-306.] {¶ 16} Whether a pleading is correctly characterized as a criminal motion or a petition for post-conviction relief is critical for a ppellate review. If the trial court correctly decides the defendant’s request is a criminal motion and provides a copy of its decision to both the State and the defendant at the time of filing, as is routine in this district, the time for appeal begins to run upon filing of the decisi on. If the trial court correctly decides the defendant’s request is a petition for post-conviction relie f, but the court does not include Civ.R. 58(B) language in the ruling directing the clerk to serve the parties and to note that upon the docket, as is also common but not universal in this district, then the case law in this and other districts is that the time for appeal never begins to run. 3 This result applies even if the defendant actually receives the decision because, under App. R. 4, “in a civil case” the time for appeal starts upon compliance with Civ.R. 58(B). 4 But if the trial court rules on a petition for post-conviction relie f, and includes a Civ.R. 58 order with which the clerk promptly complies, the time for appeal begins regardless of whether the defendant actually receives the decision. See Civ R. 58(B); Atkinson v. Grumman Ohio Corp. , 37 Ohio St.3d 80, 523 N.E.2d 851 (1988), paragra ph 2(c) of the syllabus; Leonard v. Delphia Consulting , 10th Dist. Franklin No. 06AP-874, 2007- Ohio-1846. That is my lament. {¶ 17} Virtually all petitions for post-convic tion relief are for the incarcerated, and

3 State v. Stevens , 2d Dist. Montgomery No.16562, 1998 WL 310739 (June 12, 1998); State v. McKinney , 3d Dist. Defiance No. 4-11-01, 2011-Ohio-3521; State v. Church , 5th Dist. Morgan No. 08 -CA-0001, 2008-Ohio-1917; State v. Taylor , 6th Dist. Erie No. E-02-045, 2003-Ohio-3682; State v Williams , 10th Dist. Franklin No. 06AP-842, 2006-Ohio-842.

4 If I were deciding the issue in the first instance, I would not apply Civ.R. 58 to a petition for post-conviction relief because of the difficulty in characterizing post-conviction pr oceedings, particularly when filed pro se, and the unfortunate collateral effect of exclusion from appellate review of many post-conviction rulings because of the vagaries of prisoner mail d elivery and a prisoner’s ability to create, mail, and file a timely notice of appeal. But the case law applying Civ.R. 58 to an R.C. 29 53.21 petition is well established.8 the vast majority are pro se. Mailing to a prisoner, even assuming that he or she remains at the same facility, can be spotty. Adding to the uncertainty is that a prisoner must create, mail, and timely file a notice of appeal in a relatively short time frame. Even when a prisoner

receives a decision late and makes all reasonabl e efforts to file an appeal, the court of appeals lacks jurisdiction to consider an appeal that may be a day or two late because it cannot extend the time for appeal. App.R. 14(B) ( “The court may not enlarge or reduce the time for filing a notice of appeal[.]”) At leas t if the proceeding is considered a criminal action, the appellant may apply for a delayed appeal under A pp.R. 5(A)(1)(a), which could be granted if the defendant dem onstrates “‘a reasonable explanation of the basis for failure to perfect a timely appeal.’” State v. Evans , 10th Dist. Franklin No. 09AP-1028, 2010-Ohio-4090, ¶5 (Citation omitted). But the Oh io Supreme Court long ago determined that App.R. 5 and the ability to request a dela yed appeal does not apply to a post-conviction relief petition. State v. Nichols , 11 Ohio St.3d 40, 42, 463 N.E.2d 375 (1984). {¶ 18} In my view, the appellate rights of incarcerated individuals dealing with constitutional issues in post-convi ction relief petitions would be be tter protected if they were permitted to seek leave to file a delayed appeal, provided they could demonstrate just cause. The case law, the Appellate Rules, or the post- conviction relief statute should be modified to

achieve this result.

. . . . . . . . . . FAIN, J. concurring: {¶ 19} I concur fully in Judge Donovan’s opini on for the court. I write separately to indicate that I agree with much of what Judge Hall has set forth in his dissent. I9 specifically agree that App.R. 5 should be am ended to include app eals from post-conviction relief decisions within the scope of pe rmissible motions for delayed appeal.

. . . . . . . . . . Copies mailed to: Stephanie R. Hayden Lottie Mae Stanley Hon. Stephen A. Wolaver