[Cite as State v. Bear , 2021-Ohio-1539.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT GALLIA COUNTY STATE OF OHIO, : : Plaintiff-Appellant, : Case No. 20CA9 : vs. : : DECISION AND SAMUEL E. BEAR, : JUDGMENT ENTRY : Defendant-Appellee. :

_____________________________________________________________ APPEARANCES: Samuel E. Bear, Caldwell, Ohio, Appellant, pro se. Jason Holdren, Gallia County Prosecuting Attorney, and Jeremy F isher, Assistant Prosecuting Attorney, Gallipolis, Ohio, for Appellee.

_____________________________________________________________ Smith, P.J. {¶1} Appellant, Samuel Bear, appeals the trial court’s judgment entry denying his motion to vacate or se t aside judgment. On appeal, Bear raises two assignments of error contending that 1) the trial court lacked jurisdiction to enter a judgment in his case; and 2) there was a lack of factual basis regarding the element of force in the record to support his guilty pleas to rape. Be cause we have characterized Bear’s underlying motion as an untimely-filed pet ition for postconviction relief, we conclude the trial court lacked jurisdict ion to entertain the constitutional claims raised in the petition and should not hav e addressed them onGallia App. No. 20CA9 2

the merits. Thus, these claims should have been dismissed rathe r than denied. Further, because the non-constitutional claims were barred by r es judicata and were further waived by Bear’s guilty pleas, we affirm the trial court’s denial of

these claims. {¶2} Thus, the judgment of the trial court is affirmed as to th e nonconstitutional claims; but the judgment is modified as to the c onstitutional claims in order to reflect that they should have been dismissed for la ck of jurisdiction. 1 Accordingly, the judgment of the trial court is affirmed as mod ified.

FACTS {¶3} Bear currently appeals the trial court’s denial of his mo tion to vacate or set aside judgment. However, th is is not the first time this C ourt has considered matters related to Bear’s underlying convictions. The record b efore us indicates that although Bear did not file a direct appeal of his convicti ons and sentences, he filed a petition for post-conviction relief on November 6, 2017 . The trial court denied the petition and this Court affirmed the trial court’s d ecision on February 8,

2019. State v. Bear , 4th Dist. Gallia No. 18CA8, 2019-Ohio-466. In our prior decision, we set forth the facts regarding this matter as follo ws: A Bill of Information alleging Appellant committed two acts of rape in violation of R.C. 2907.02(A)(2), felonies of the first degree, was filed with the Gallia County Clerk of Courts on Jun e

1 This procedural remedy is consistent with the remedy applied i n State v. Brown , 4th Dist. Scioto No. 16CA3770, 2017-Ohio-4063, ¶ 9.Gallia App. No. 20CA9 3 27, 2017. The allegations involved two different child victims , John Doe 1 and John Doe 2. On that same date, Appellant, in open court and with the assistance of legal counsel, pleaded guilty to both counts. The record reveals Appellant is a Mennonite. The counts stem from criminal acts which occurred to John Doe 1 and John Doe 2 when Appellant's sister, also a Mennonite, provided child car e to them in 2009 and 2010 in Gallia County, Ohio. Several years later, Appellant wrote a letter to the children's mother confes sing his actions and asking forgiveness. In April 2016, the childre n's mother notified the proper authorities and assisted the Ohio Bureau of Criminal Investigation in obtaining a recorded statement. On the advice of Appellant's friends, Appellant thereafter obtained an attorney. It appears the Gallia County authorities took no action in the matter for approximately one year. Appellant was represented by Attorney Jeff Finley. The record indicates Appellant and his attorney had several discussions in person at Attorney Finley's office, and over the telephone, regarding a plea agreement offered by the prosecutor's office a nd later accepted on June 27, 2017. At the plea hearing, Appellan t waived various rights including his right to a grand jury. He a lso executed a written waiver of right to a jury trial. The trial court's journal entry dated June 27, 2017 found that Appellant was afforded all rights pursuant to Criminal Rules 11 and 32; and that Appellant's plea was knowingly, intelligently, and voluntarily made with a full awareness of the possible consequences of his plea. The court ordered a pre-sentence investigation report to be completed. Appellant's sentencing wa s continued to July 6, 2017. On July 6, 2017, Appellant was sentenced to a stated prison ter m of eight years on each count. The trial court ordered the sentences be served concurrently. The trial court's Sentencing Entry dated July 10, 2017 reflects that Appellant entered an agreed guilty plea with a recommended sentence.Gallia App. No. 20CA9 4 Appellant did not pursue a direct appeal. On November 6, 2017, Appellant filed a Petition for Post-Conviction Relief.[] On Jun e 4, 2018, the trial court entered the journal entry denying Appellant's petition and other various motions. This timely appeal followed.

State v. Bear at ¶ 2-7. {¶4} After this Court affirmed the trial court’s denial of Bea r’s petition,

Bear went on to file several more motions in the trial court le ading up to the current motion that was filed on February 26, 2020. In his mot ion, Bear argued the trial court lacked jurisdictio n to accept his guilty pleas and sentence him for the two counts of rape by force contained in the bill of informatio n, and he also argued that the record lacked a factual basis to support his guilty pl eas. The trial court

denied his motion on March 10 , 2020. It is from this judgment that Bear now appeals, setting forth two assignments of error for our review.

ASSIGNMENTS OF ERROR

I. “LACK OF JURISDICTION.”

II. “LACK OF FACTUAL BASIS.” {¶5} In his first assignment of error, Bear contends “[t]he tr ial court did not follow statutory mandates to the extent that it lacked authorit y and statutory power to enter a judgment in [his] case.” More specifically, Bear ar gues that Crim.R. 5(A)(4) was violated because he was not informed of, nor did he waive in writing, his right to a preliminary hearing. He also argues that the ri ght to a preliminaryGallia App. No. 20CA9 5 hearing may only be extinguished by indictment, and that becaus e he was prosecuted under a bill of information rather than an indictmen t, he was deprived of his right to a preliminary hearing. He further argues that the trial court lacked jurisdiction to accept his guilt y plea and sentence him under C rim.R. 7(A) and R.C. 2941.021 because the “potential punishment” for the conduct tha t was alleged to have occurred (rape of a child und er the age of 13) was punisha ble by life in prison, and that an offense punishable with a life sentence may only be prosecuted by indictment, not a bill of information. Bear explains that h e did not realize he could have been sentenced to life in prison for the alleged off enses until the Supreme Court of Ohio affirmed the denial of his application fo r a writ of habeas corpus on March 20, 2019, which was after he filed his prior pe tition for postconviction relief in the lower court. 2 He claims this fact “is grounds for relief in this successive petition.” Finally, Bear argues that these def ects, aside from constituting statutory and rule violations, deprived him of his constitutional right to due process in that he was not afforded his right to be heard. {¶7} In his second assignment of error, Bear contends there is a “lack of factual basis for the element of ‘force[]’ ” in the record. He also contends there is

2 The Supreme Court of Ohio expressly held that “[t]he trial cou rt had jurisdiction over that offense [R.C. 2907.02(A)(2)] regardless of the age of the victims.” Bear v. Buchanan at ¶ 11. The court further commented that “age with respect to that crime affects only the sentence that may be imposed.” Id. However, a review of the statute reveals that the age of the victim only affects the sentence im posed for a violation of R.C. 2907.02(A)(1)(b) and Bear was not charged under that section of the statute.Gallia App. No. 20CA9 6 no evidence in the record that he received any sexual stimulati on or satisfaction during the alleged incident. Thus, he argues that his “conduct did not amount to fellatio and there is a lack of factual basis to support a conv iction for rape.” He further argues that his counsel did not inform him that these e lements were required to prove the offense of rape and that he would not hav e pled guilty had he known. He claims that “Defense Counsel’s presumptions blinded him and prevented him from fairly representing Defendant when he failed to investigate and there was no factual basis for the charge, rendering his servic es ineffective.” {¶7} For ease of analysis, we will address Bear’s assignments of error in conjunction with one another, separating them between constitut ional and nonconstitutional claims.

LEGAL ANALYSIS A. Characterization of Irregular Motion {¶8} In order to review the denial of Bear’s “Motion to Vacate or Set Aside Judgment,” we must first determine how to characterize the moti on. See State v.

Brown , 4th Dist. Scioto No. 16CA3770, 2017-Ohio-4063, ¶ 18. As expl ained in

Brown , “ ‘ “[c]ourts may recast irregular motions into whatever cate gory necessary to identify and establish the criteria by which the motion shou ld be judged.” ’ ” Id. , quoting State v. Burkes , 4th Dist. Scioto No. 13CA3582, 2014-Ohio-3311, ¶ 11, inGallia App. No. 20CA9 7 turn quoting State v. Schlee , 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12. {¶9} The Supreme Court of Ohio has held as follows regarding w hen irregular motions may meet the definition of petitions for post -conviction relief: “[w]here a criminal defendant, subsequent to his or her direct appeal, files a motion seeking vacation or correction of his or her sentence on the basis that his or her constitutional rights hav e been violated, such a motion is a petition for post-conviction relief as defined in R.C. 2953.21.”

Brown at ¶ 19, quoting State v. Reynolds , 79 Ohio St.3d 158, 679 N.E.2d 1131, syllabus (1997). {¶10} Thus, an irregular motion may meet the definition of a pe tition for post-conviction relief set forth in R.C. 2953.21(A)(1), if the motion was “ ‘(1) filed subsequent to [defendant's] direct appeal, (2) claimed a denial of constitutional rights, (3) sought to render the judgment void, and (4) asked f or vacation of the judgment and sentence.’ ” Brown at ¶ 19, quoting State v. Reynolds at 160. {¶11} “ ‘[P]ost-conviction relief petitions are used to assert claims that there was a denial or infringement of the person's rights as to rende r the judgment void

or voidable under the Ohio or United States Constitutions.’ ” Brown at ¶ 20, quoting State v. Kelly , 4th Dist. Scioto No. 14CA3637, 2014-Ohio-5840, ¶ 4. “ ‘It

is a means to resolve constitutional claims that cannot be addr essed on direct appeal because the evidence supporting the claims is not contai ned in the record.’ ”Gallia App. No. 20CA9 8

Brown at ¶ 20, quoting Kelly at ¶ 5, citing State v. Shaffer , 4th Dist. Lawrence No. 14CA15, 2014-Ohio-4976, ¶ 9; State v. Knauff , 4th Dist. Adams No. 13CA976, 2014-Ohio-308, ¶ 18. {¶12} Here, much like in Brown , supra , the constitutional claims set forth in Bear’s “Motion To Vacate Or Set Aside Judgment” meet the defini tion of a petition for post-conviction relief pursuant to R.C. 2953.21. Bear filed the “Motion To Vacate Or Set Aside Judgment” after expiration of th e time for filing a direct appeal. He also claimed in part that his constitutional rights had been violated by the trial court. Additionally, Bear sought to rend er the judgment void and he asked for vacation of the judgment and sentence. B. Standard of Review for Petition for Post-Conviction Relief {¶13} A trial court's decision granting or denying a post-conv iction petition filed pursuant to R.C. 2953.21 is reviewed for an abuse of disc retion and a reviewing court should not overrule the trial court's finding o n a petition for postconviction relief that is supported by competent, credible evid ence. See State v. Bennington , 4th Dist. Adams No. 12CA956, 2013-Ohio-3772, ¶ 8, citing State v.

Gondor , 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 45. The term “abuse of discretion” connotes more than an error of judgment; it implies the court's attitude is unreasonable, arbitrary, or unconscionable. Id ., citing State v.

Adams , 623 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).Gallia App. No. 20CA9 9

C. Bear’s “Motion To Vacate Or Set Aside Judgment” was an Untimely Post-Conviction Relief Petition and was also Barred by the Doctrine of Res Judicata; thus, the Trial Court did not have Jurisdiction to Decide the Merits of the Motion as to the Constitutional Claims {¶14} Initially, we note that limitations exist with respect t o the filing of a post-conviction relief petition. A petition for post-convictio n relief is subject to strict filing requirements. Former R.C. 2953.21(A)(2) required a petition for postconviction relief to be filed “no later than one hundred eighty 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 or adjudication * * *. If no appeal is taken * * * the petition shall be filed no later than one hundred eighty days a fter the expiration of the time for filing the appeal.” On March 26, 2015, HB 663 too k effect and extended the time for filing a petition for post-conviction rel ief to (1) 365 days from the date on which the trial transcript was filed in the co urt of appeals in the direct appeal of the judgment of conviction or (2) 365 days aft er the expiration of the time for filing the notice of appeal, if no direct appeal i s taken. R.C. 2953.21(A)(2). {¶15} If a defendant fails to file his petition within the pre scribed period, the trial court may entertain the petition only if: (1) the petiti oner shows either that he was unavoidably prevented from discovery of the facts upon whic h he must rely to present the claim for relief or that the United States Supreme Court recognized a new federal or state right that applies retroactively to him; a nd (2) the petitionerGallia App. No. 20CA9 10 shows by clear and convincing evidence that no reasonable factf inder would have found him guilty but for constitutional error at trial. See R.C. 2953.23(A)(1); see also State v. McManaway , 4th Dist. Hocking No. 16CA8, 2016-Ohio-7470, ¶ 13- 16 (trial court lacks jurisdiction to entertain an untimely pet ition for postconviction relief unless the untimeliness is excused by statute ). {¶16} In addition to dismissing a petition as being untimely, a trial court may also dismiss a petition when the claims are barred by the d octrine of res judicata. See State v. Boler , 4th Dist. Athens No. 18CA2, 2018-Ohio-3722, ¶ 19, citing State v. Szefcyk , 77 Ohio St.3d 93, 671 N.E.2d 233, syllabus (1996). The doctrine of res judicata is applicable in all post-conviction r elief proceedings and provides that: “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 the trial, which resulted in th at judgment of conviction, or on an appeal from that judgment.”

Boler at ¶ 19, quoting Szefcyk at 95. {¶17} Here, it is clear from the record that Bear has filed an untimely petition for post-conviction relief. The final order from his underlying rape convictions was filed on July 10, 2017. As stated, he had 30 d ays to file a direct appeal of his convictions and sentences, but he did not. He di d not file his most recent petition for po st-conviction relief until February 26, 2 020. Thus, it was filedGallia App. No. 20CA9 11 well beyond the time limit. Fur thermore, because Bear has fail ed to argue and establish the applicability of either exception set forth in R. C. 2953.23(A), we find that the trial court lacked jurisdiction to entertain the motio n. Brown at ¶ 25. {¶18} Because the trial court lacked jurisdiction to consider Bear’s petition for post-conviction relief, “[t]he trial court technically erre d by addressing the merits of [the] motion.” See Id . Instead, Bear’s motion, at least with respect to the constitutional claims, should have been dismissed for lack of j urisdiction. Id. We find, however, that Bear has not been prejudiced by this error because the outcome

remains the same. Bear’s constitutional claims would have fail ed regardless because the claims were untimely. Further, to the extent some of Bear’s arguments are premised upon the trial court’s lack of jurisdiction, which he claims can be raised at any time, directly or collaterally, and are not barre d by the doctrine of res judicata, we find they would have failed on the merits even if they had not been time-barred. Thus, contrary to Bear’s arguments on appeal, we find the arguments contained in Bear’s underlying petition were also barred by the doctrine of res judicata.

1. Failure to Afford a Preliminary Hearing or Probable Cause Determination Through Indictment Rather Than Bill of Information Did Not Affect the Trial Court’s Jurisdiction or Render Bear’s Convictions and Sentences Void (Lack of Jurisdiction Argument)Gallia App. No. 20CA9 12 {¶19} Bear initially contends he was not informed of his right to a preliminary hearing and that because he was never informed of t he right, he never waived it. He further argues that the offenses for which he wa s charged carried a potential punishment of life in prison and, as such, it was err or to allow the charges to be prosecuted by a bill of information rather than by indict ment by a grand jury. He cites Crim.R. 5 and 7 in support of his arguments and conten ds that these alleged rule violations resulted in constitutional violations a s well, specifically to his right to due process. He also relies on R.C. 2941.021 in s upport of his

arguments. {¶20} A review of the record before us reflects that Bear’s ca se did not originate with the filing of a criminal complaint in the munici pal court. Because a criminal complaint was never filed in municipal court, Bear’s c ase did not go through the process of initial arraignment followed by either apreliminary hearing or waiver thereof and bindover to the grand jury for indictment in the court of common pleas. Instead, it appears that Bear’s counsel was invo lved in negotiations with the prosecutor’s office early on in the inves tigation and worked with the prosecutor to proceed with the filing of a bill of inf ormation charging two counts of rape by force in violation of R.C. 2907.02(A)(2), rat her than seeking an

indictment.Gallia App. No. 20CA9 13 {¶21} This agreement was very advantageous to Bear because had his case gone before the grand jury, he may have been indicted for two c ounts of rape of a child under the age of 13, in violation of R.C. 2907.02(A)(1)(b ), which carry sentences of life in prison. As it stands, however, Bear was n ever charged with violations of R.C. 2907.02(A)(1)(b), either in juvenile court o r municipal court, nor was he ever indicted on those offenses. Nonetheless, Bear appe ars to argue that because the conduct in which he engaged could have been charged as rape of a child under the age of 13 and could have been punished with lif e in prison, allowing him to be prosecuted through a bill of information rat her than by indictment was error which deprived the trial court of jurisdic tion over his case. For the following reasons, we disagree. {¶22} As argued by Bear, Crim. R. 5(A)(4) provides for “the rig ht to a preliminary hearing in a felony case, when the defendant's init ial appearance is not pursuant to indictment.” Additionally, as argued by Bear, Crim .R. 7(A) provides, in pertinent part, as follows: A felony that may be punished by death or life imprisonment shall be prosecuted by indictment. All other felonies shall be prosecuted by indictment, except that after a defendant has bee n advised by the court of the nature of the charge against the defendant and of the defendant's right to indictment, the defendant may waive that right in writing and in open court. Where an indictment is waived, the offense may be prosecuted by information * * *Gallia App. No. 20CA9 14 {¶23} Likewise, R.C. 2941.021 states as follows regarding the u se of a bill

of information: Any criminal offense which is not punishable by death or life imprisonment may be prosecuted by information filed in the common pleas court by the prosecuting attorney if the defendant , after he has been advised by the court of the nature of the cha rge against him and of his rights under the constitution, is represented by counsel or has affirmatively waived counsel by waiver in writing and in open court, waives in writing and in open court prosecution by indictment. {¶24} First and foremost, as we have already explained, Bear was never actually charged with offenses that were punishable by death or life imprisonment. He was charged with two violations of rape by force in violatio n of R.C. 2907.02(A)(2), which carried maximum prison terms of eleven yea rs each. Thus, Crim.R. 7(A) and R.C. 2941.021 were not violated here. Second, and importantly, Bear was represented by counsel below and signed a written waiv er, in open court, of his “right to have an indictment by way of a grand jury.” I n doing so, Bear also consented to being prosecuted by a bill of information. This C ourt has held that where a defendant waives his right to prosecution through an in dictment and agrees to be charged through a bill of information, he or she i s not entitled to

confront his or her ac cuser at a preliminary hearing and thus, there is no need for a preliminary hearing. See State v. Dotson , 4th Dist. Washington No. 03CA53, 2004-Ohio-2768, ¶ 8, citing State v. Girt , Stark No. 2002-CA-00174, 2002-Ohio-Gallia App. No. 20CA9 15 6407, ¶ 31 (once defendant waives his right to prosecution thro ugh indictment, there is no need for a preliminary hearing). {¶25} Accordingly, we find no merit to Bear’s arguments that t he manner in which the charges were brought against him resulted in statutor y and rule violations which resulted in constitutional violations. Thus, Bear cannot demonstrate that any of these alleged errors deprived the trial court of jurisdiction or rendered the trial court’s judgment void. Consequently, we conclude Bear’s petition was time-barred and there is no jurisdictional defect which insulates it from the application of the doctrine of res judicata.

2. Trial Counsel did not Render Ineffective Assistance and his Performance did not Render Bear’s Guilty Plea Invalid (Lack of Factual Basis Argument) {¶26} Although Bear made ineffective assistance of counsel cla ims in his first petition for post-conviction relief, he alleged another c laim of ineffective assistance of counsel in the current petition and continues tha t argument on appeal. As set forth above, Bear contends that his counsel did not info rm him that force and sexual stimulation/satisfaction were elements that were req uired to prove the offense of rape. He further argues that he would not have pled guilty had he known. In response to Bear’s allegations of ineffective assist ance of counsel in his first petition for post-conviction relief, we held as follows:Gallia App. No. 20CA9 16 Appellant asserts that his legal counsel (1) colluded with the prosecution; (2) ignored the fact Appellant was allegedly a juvenile; and (3) coerced the Appellant to sign the plea agreement. However, Appellant has failed to provide any credible evidence outside of the record to support these contentions. Furthermore, “[a] claim of ineffective assistance of counsel is * * * waived by a guilty plea, unless the ineffectiv e assistance of counsel precluded the defendant from knowingly, intelligently, and voluntarily entering a guilty plea.” [ State v. Betts , 4th Dist. Vinton No. 18CA710, 2018-Ohio-2720, ¶ 26, quoting State v. Grove , 8th Dist. Cuyahoga No. 103042, 2016- Ohio-2721, ¶ 26; State v. Guerra , 2nd Dist. Miami No. 2015- CA-28, 2016-Ohio-5647, ¶ 18. See generally Katz, Martin, Lipton, Giannelli, and Crocker, Baldwin's Ohio Criminal Law, Section 43:20 (3rd Ed.2014). Appellant could have raised an ineffective assistance of counsel claim with regard to the informed and voluntary nature of his plea on a direct appeal bu t did not do so. Consequently, he is barred by res judicata from raising it now. State v. Bear, supra , at ¶ 24. {¶27} Thus, we found all of Bear ’s ineffective assistance of c ounsel claims to be barred by res judicata and we further found that his clai ms of ineffective assistance were waived by his guilty plea. In so holding, we n oted that an exception exists when a defendant claims the ineffective assist ance precluded him from knowingly, intelligently, and voluntarily entering a guilt y plea. Interestingly, Bear now argues that this particular exception applies and that he would not have pled guilty but for co unsel’s ineffective assistance. However, it appears that in making his argument, Bear confuses the statutory definitions of “sexual contact”

and “sexual conduct.”Gallia App. No. 20CA9 17 {¶28} Bear was charged with and pled guilty to two counts of r ape in violation of R.C. 2907.02(A)(2) , which provides as follows: (A)(1) No person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of t he offender but is living separate and apart from the offender, wh en any of the following applies: * * * (2) No person shall engage in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force. {¶29} “Sexual conduct” for purposes of rape is defined in R.C. 2907.01

as follows: * * * vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardle ss of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, o r other object into the vaginal or anal opening of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse. {¶30} Thus, sexual stimulation or satisfaction, as argued by Be ar, is not a required element that must be proven. “Sexual contact” on the other hand, is defined in R.C. 2907.01, which provides as follows: * * * any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexuall y arousing or gratifying either person. {¶31} However, sexual contact, which includes a purpose to sexu ally arouse or gratify, is not an element of the crime for which Bear was c harged or convicted.Gallia App. No. 20CA9 18 Accordingly, we reject Bear’s argument that his trial counsel f ailed to inform him that sexual stimulation or satisfaction were elements required to be proven by the State had he decided to go to trial rather than plead guilty. {¶32} Next, we find Bear’s argument that his counsel failed to inform him that force was an element that was required to be proven to be disingenuous. First, the word “force” was expressly us ed in the bill of information. For example, the bill of information charged Bear with two counts of rape in vio lation of R.C. 2907.02(A)(2) and expressly alleged that Bear did “knowingly en gage in sexual conduct with another when the offender purposely compels the ot her person to submit by force or threat of force.” Further, to the extent Be ar argues that counsel misled him on the record, Bear has failed to provide this Court with the transcripts of the proceedings below, despite his duty to do so. State v. Whitaker , 4th Dist. Scioto No. 10CA3349, 2011-Ohio-6923, ¶ 10. Thus, we are unable to determine what may have been expressly discussed on the record during thi s plea hearing. Further, in such situations we must presume the regularity of t he proceedings

below. See Id. at ¶ 1. Moreover, Appellant has pointed to no evidence outsid e the record indicating that his counsel misinformed him regarding th e element of force contained in the charges to which he pled guilty. {¶33} As such, we find no merit to Bear’s arguments nor any ca use to prevent the application of res judicata or the general waiver o f claims associatedGallia App. No. 20CA9 19 with his guilty pleas. State v. Bear , supra , at 18, citing State v. Betts , supra , at ¶ 20, in turn citing State v. Spangler , 4th Dist. Lawrence No. 16CA1, 2016-Ohio8583, ¶ 16-18; State v. Brunner , 4th Dist. Ross No. 1654, 1991 WL 99669, *2 (June 4, 1991). (A guilty plea is a complete admission of guil t and removes all issues of factual guilt from a case). Accordingly, as we have found no jurisdictional defect regarding the trial court’s ability to de cide Bear’s case, both of these legal principles serve as a bar to his current claim of i neffective assistance of

counsel.

D. Res Judicata Bars all other Non-Constitutional Claims 1. Lack of Jurisdiction Argument {¶34} This Court has recently explained as follows regarding n onconstitutional claims raised in a petition for post-conviction relief: “Generally, a petitioner can not raise, for purposes of postconviction relief, an error that could have been raised on direct appeal. In other words, if a petitioner fails to bring an appeal as of right, he cannot raise in a petition for postconvi ction relief those issues that should have been raised in a direct appeal.” (Citations omitted.) State v. Brown , supra , at ¶ 34. {¶35} Additionally, as further explained in Brown : “Res judicata is applicable in all postconviction relief proceedings. * * * ‘ “[P]ublic policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest, and that matters once tried shall be considered forever settled as between the parties.”Gallia App. No. 20CA9 20 [Citation omitted.] We have stressed that “[the] doctrine of r es judicata is not a mere matter of practice or procedure inherite d from a more technical time than ou rs. It is a rule of fundament al and substantial justice, ‘of public policy and of private peace ,’ which should be cordially regarded and enforced by the courts. * * *” [Citation omitted.]’ ”

Brown at ¶ 34, quoting State v. Szefcyk , supra , at 95, citing Federated Dept. Stores,

Inc. v. Moitie , 452 U.S. 394, 401, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981). {¶36} Here, as already stated , Bear failed to file a direct ap peal. In addition to raising constitutional claims, Bear’s “Motion To Vacate Or S et Aside Judgment” raised non-constitutional claims that he could have r aised in a timely direct appeal. For example, in his first assignment of error, he argues that the trial court failed to comply with Crim.R. 5(A)(4) and Crim.R. 7(A). Above, we

discussed the fact that Bear claimed that the trial court’s fai lure to comply with these rules resulted in a violation of his constitutional right to due process. We further reasoned that to the extent Bear argued these alleged v iolations resulted in constitutional violations, they were barred from being consider ed as his petition for post-conviction relief was untimely filed, and he did not satis fy any exception that would permit him to have filed beyond the deadline. However, t o the extent these arguments simply allege statutory and rule violations, as oppos ed to constitutional violations, they are barred by res judicata because these argum ents could have been raised in a direct appeal.Gallia App. No. 20CA9 21 {¶37} Bear contends, however, that these violations precluded the trial court from having jurisdiction to accept his guilty plea and sentence him. Thus, he essentially argues his plea is invalid and his convictions and sentences are void. He further argues that lack of jurisdiction can be raised at an y time, is not barred by res judicata, and that this Court has a duty to vacate a voi d conviction and sentence. We rejected these arguments in the context of our an alysis of Bear’s constitutional claims above. Further, the Supreme Court of Ohi o has determined, albeit in the context of reviewing the denial of a petition for habeas corpus, that “[t]he manner by which an accused is charged with a crime, whet her by indictment returned by a grand jury or by information filed by the prosecu ting attorney, is procedural rather than jurisdictional.” State ex rel. Beaucamp v. Lazaroff , 77 Ohio St.3d 237, 238, 1997-Ohio-277, 673 N.E.2d 1273, citing Wells v. Maxwell , 174 Ohio St. 198, 200, 148, 188 N.E.2d 160, 161 (1963); Ex parte Stephens , 171 Ohio St. 323, 324, 170 N.E.2d 735, 737 (1960). The Court further de termined that “a judgment on an information also binds the defendant as long as the trial court has jurisdiction to try the defendant for the crime in which he was convicted and

sentenced.” Beaucamp at 238. {¶38} Moreover, the record before us reveals that Bear waived his right to a grand jury, consented to be prosecuted by a bill of information , and pled guilty to the charges contained in the bill of information. Beaucamp further provides that aGallia App. No. 20CA9 22 defendant’s “plea of guilty to the offenses waive[s] any claime d right to an

indictment.” Beaucamp at 238. Also, and importantly, Bear’s arguments are based upon the mistaken premise that he could have been sentenc ed to life in prison for the charges at issue. As we have already explained, while the alleged conduct, rape of a child under the age of 13, technically could have been charged under the R.C. 2907.02(A)(1)(b) portion of the statute which ca rries a potential life sentence, Bear was instead charged with rape by force, in viola tion of R.C. 2907.02(A)(2), which is not punishable by life in prison. {¶39} We conclude there was simply no error in the manner in w hich Bear was prosecuted. In fact, although he raised a different substa ntive argument in his prior petition for a writ of habeas corpus, the Supreme Court o f Ohio previously determined that the trial court had jurisdiction to hear and de cide Bear’s underlying

case. See Bear v. Buchanan , 156 Ohio St.3d 348, 2019-Ohio-931, 126 N.E.3d 1115, ¶ 11 (rejecting Bear’s argument that the bill of informat ion was defective because it either did not identify or misstated the ages of the victims and finding that the trial court had jurisdiction over the offense of rape in violation of R.C. 2907.02(A)(2) regardless of the age of the victims). Thus, we further conclude that Bear’s argument that being prosecuted through a bill of informa tion prevented the trial court from acquiring jurisdiction over his case or having authority to imposeGallia App. No. 20CA9 23 sentence upon him under R.C. 2941.021 and Crim.R. 5 and 7 fails on the merits. Accordingly, it is overruled. 2. Lack of Factual Basis Argument {¶40} Bear also raises a non-constitutional claim in his secon d assignment of error. More specifically, Bear argues that there was a lack of factual basis in the record to support his guilty pleas to rape by force. This argu ment has already been discussed above to the extent that his argument can be construe d as a claim that he was deprived of his constitutional right to the effective assis tance of counsel. However, to the extent this argument simply argues that there w as insufficient evidence of force, sexual stimulation or sexual satisfaction in the record to support his convictions, he has waived any such argument by pleading gu ilty to the offenses and the argument is also barred by res judicata becaus e it could have been raised on direct appeal. See State v. Bear , supra , at ¶ 18 (“Having entered a guilty plea and received an agreed sente nce, Appellant waived the righ t to contest the state’s evidence or his guilt”). Thus, to the extent this argu ment raises nonconstitutional claims that could have been raised on direct app eal, they are barred by the doctrine of res judicata as well as waived by Bear’s gui lty pleas. {¶41} Therefore, we find that all of Bear’s arguments fail. H aving found that Bear’s constitutional claims were brought as part of an un timely filed and successive petition for post-conv iction relief, they are time-b arred and furtherGallia App. No. 20CA9 24 barred by the doctrine of res judicata. As such, the trial cou rt lacked jurisdiction to consider these claims and rather than denying them, the trial c ourt should have dismissed them. Therefore, under the authority of App.R. 12(A) (1)(a), the judgment of the trial court is modified to reflect dismissal of Bear’s constitutional claims. The rest of the trial court’s judgment shall remain in tact with respect to the

non-constitutional claims which we have determined to be barred by res judicata. Accordingly, we affirm the judgment with the modification. See State v. Brown ,

supra , at ¶ 39, citing State v. Brewer , 2nd Dist. Montgomery No. 24910, 2012- Ohio-5406, ¶ 10; State v. Griffin , 1st Dist. Hamilton Nos. C-150258 and 150005, 2016-Ohio-782, ¶ 13.

JUDGMENT AFFIRMED AS MODIFIED.Gallia App. No. 20CA9 25

JUDGMENT ENTRY

It is ordered that the JUDGMEN T BE AFFIRMED AS MODIFIED and costs be assessed to Appellant. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court d irecting the Gallia County Common Pleas Court to carry this judgment into ex ecution. IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRA NTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exc eed sixty days upon the bail previously posted. The purpose of a continued st ay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is contin ued by this entry, it will terminate at the earlier of the expiration of the sixty-da y period, or the failure of the Appellant to file a notice of appeal with the Supreme Co urt of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will ter minate as of the date of such dismissal. A certified copy of this entry shall constitute the mandate pu rsuant to Rule 27 of the Rules of Appellate Procedure. Hess, J. & Wilkin, J. concur in Judgment and Opinion. For the Court,

_____________________________ Jason P. Smith Presiding Judge NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a fin al judgment entry and the time period for further appeal commences from the date of filing with the clerk.