[Cite as State v. Dudley, 2014-Ohio-826.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION

No. 99952

 

STATE OF OHIO 

PLAINTIFF-APPELLEE 

vs. 

EDDIE DUDLEY

 DEFENDANT-APPELLANT

JUDGMENT:

AFFIRMED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case Nos. CR-500587, CR-500881, CR-530921, and CR-532408 

BEFORE: Stewart, J., Blackmon, P.J., and McCormack, J. 

RELEASED AND JOURNALIZED: March 6, 2014 
FOR APPELLANT

Eddie Dudley, Pro Se 

Inmate No. 582-483 

Lorain Correctional Institution 

2075 South Avon Belden Road 

Grafton, OH 44044 

ATTORNEYS FOR APPELLEE 

Timothy J. McGinty 

Cuyahoga County Prosecutor 

BY: James M. Price 

Assistant County Prosecutor 

The Justice Center 

1200 Ontario Street, 9th Floor 

Cleveland, OH 44113 
MELODY J. STEWART, J.: 

{¶1} In March 2010, the court sentenced defendant-appellant Eddie Dudley in four 

separate cases: in three of those cases Dudley pleaded guilty; in the fourth case a jury 

found him guilty after a trial. In March 2012, Dudley filed an identical motion in all four 

cases asking the court to vacate his sentences because he was not informed in court at the 

time of sentencing that he was obligated to pay court costs. The court denied those 

motions, and Dudley did not appeal. In April 2013, Dudley refiled the same motion to 

vacate in all four cases. The court denied those motions, and Dudley appeals, arguing 

that the trial court erred by doing so. We find no error for several reasons. 

{¶2} First, the motions to vacate the sentences were barred by principles of res 

judicata because the cost issues contained in those motions could have been, but were not, 

raised on direct appeal from the jury trial and the three guilty pleas. See State v. Threatt, 

108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, ¶ 23 (“[A]n indigent defendant 

must move a trial court to waive payment of costs at the time of sentencing. If the 

defendant makes such a motion, then the issue is preserved for appeal and will be 

reviewed under an abuse-of-discretion standard. Otherwise, the issue is waived and 

costs are res judicata.”). 

{¶3} Second, even if not res judicata because they were not raised on direct appeal, 

the cost issues are nonetheless untimely in a way that deprived the court of jurisdiction to 

hear them. A motion to vacate or correct a sentence filed after a direct appeal is treated 
as a petition for postconviction relief under R.C. 2953.21. See State v. Schlee, 117 Ohio 

St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12; State v. Ali, 8th Dist. Cuyahoga No. 

99062, 2013-Ohio-2696, ¶ 7. Although Dudley only appealed from one of his four 

convictions (State v. Dudley, 8th Dist. Cuyahoga No. 94972, 2011-Ohio-726), the time 

for filing an appeal in the other three cases had long since expired, so we consider the 

motions to vacate the sentences in the three cases that were not appealed to be 

postconviction petitions. That being the case, the motions to vacate sentence had to be 

filed within 180 days after the expiration of the time for filing an appeal or, in the case 

where an appeal was filed, within 180 days after the date on which the trial transcript was 

filed in the court of appeals in the direct appeal of the judgment of conviction or 

adjudication. See R.C. 2953.21(A)(2). In none of the four cases being appealed from 

did Dudley file his motion to vacate sentence in a timely manner, so the court lacked 

jurisdiction to consider those motions. State v. Johns, 8th Dist. Cuyahoga No. 93226, 

2010-Ohio-162, ¶ 8. 

{¶4} Finally, even if we could view the motions to vacate sentence as being timely 

filed and not res judicata because the issues in those motions were not raised on direct 

appeal, they were nonetheless res judicata for a different reason: Dudley did not appeal 

when the court denied his first set of motions in March 2012. Instead, Dudley waited 

just over one year and then refiled the same motions. It was only after the court denied 

those motions a second time in May 2013 that Dudley appealed. So apart from all of the 

other defects with his motions, Dudley’s failure to file an appeal in March 2012, like his 
failure to raise the issue on direct appeal, rendered the cost issues res judicata. State v. 

Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 59, citing State v. Perry, 

10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus. 

{¶5} Judgment affirmed. 

It is ordered that appellee recover of appellant its costs herein taxed. 

It is ordered that a special mandate issue out of this court directing the Cuyahoga 

County Court of Common Pleas to carry this judgment into execution. A certified 

copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of 

Appellate Procedure. 

 

 

MELODY J. STEWART, JUDGE 

PATRICIA ANN BLACKMON, P.J., and 

TIM McCORMACK, J., CONCUR