[Cite as State v. Johnson, 2016-Ohio-7731.]

COURT OF APPEALS 

DELAWARE COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : Hon. Sheila G. Farmer, P.J. 

 Plaintiff-Appellee : Hon. W. Scott Gwin, J. 

 : Hon. Patricia A. Delaney, J. 

-vs- : 

 : 

BRIAN A. JOHNSON : Case No. 16 CAA 08 0033 

 : 

 Defendant-Appellant : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Court of Common 

Pleas, Case No. 15-CRI-01-0019 

JUDGMENT: Affirmed 

DATE OF JUDGMENT: November 10, 2016 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

JAHAN KARAMALI BRIAN A. JOHNSON, Pro Se 

140 North Sandusky Street Inmate #707-245 

Third Floor Chillicothe Correctional Institution 

Delaware, OH 43015 P.O. Box 5500 

 Chillicothe, OH 45601 
Delaware County, Case No. 16 CAA 08 0033 2 

Farmer, P.J. 

{¶1} On January 17, 2014, the Delaware County Grand Jury indicted appellant, 

Brian Johnson, on four counts of rape in violation of R.C. 2907.02 and four counts of 

sexual battery in violation of R.C. 2907.03. 

{¶2} A jury trial commenced on May 20, 2014. Four of the counts were 

amended to attempted offenses and appellant was found guilty as charged. By 

judgment entry filed July 8, 2014, the trial court merged some of the offenses and 

sentenced appellant to an aggregate term of fourteen years in prison. 

{¶3} Appellant filed an appeal and this court affirmed his convictions and 

sentence. State v. Johnson, 5th Dist. Delaware No. 14CAA070039, 2015-Ohio-1676, 

appeal not accepted, 43 Ohio St.3d 1501, 2015-Ohio-4468. Appellant applied to reopen 

his appeal which the Supreme Court of Ohio declined to review on March 23, 2016. 

State v. Johnson, 145 Ohio St.3d 1425, 2016-Ohio-1173. 

{¶4} On February 26, 2015, appellant filed a petition for postconviction relief 

focusing on ineffective assistance of counsel. By a thorough and lengthy judgment 

entry filed March 12, 2015, the trial court denied the petition without a hearing. 

Appellant filed an appeal which this court dismissed for unauthorized practice of law. 

State v. Johnson, 5th Dist. Delaware No. 15 CAA 03 0027. 

{¶5} On October 21, 2015, appellant filed another petition for postconviction 

relief which the trial court denied the next day as a successive petition not meeting the 

requirements of R.C. 2953.23(A)(1). Appellant filed an appeal and this court affirmed 

the trial court's decision. State v. Johnson, 5th Dist. Delaware No. 15 CAA 11 0092, 

2016-Ohio-1213, appeal not accepted, 146 Ohio St.3d 1471, 2016-Ohio-5108. 
Delaware County, Case No. 16 CAA 08 0033 3 

{¶6} On November 25, 2015, appellant moved for appointment of counsel 

which the trial court denied on November 30, 2015. Appellant filed an appeal which this 

court dismissed for want of prosecution. State v. Johnson, 5th Dist. Delaware No. 15 

CAA 12 0096. 

{¶7} On March 3, 2016, appellant filed a motion for resentencing which the trial 

court denied on the same day. Appellant filed an appeal and this court affirmed the trial 

court's decision, but remanded the matter to the trial court to issue a nunc pro tunc 

sentencing entry stating the rape sentences are mandatory. State v. Johnson, 5th Dist. 

Delaware No. 16CAA030011, 2016-Ohio-4617. Appellant did not appeal to the 

Supreme Court of Ohio. Instead, appellant filed a motion for reconsideration which this 

court denied on October 20, 2016. 

{¶8} On June 24, 2016, the trial court issued a nunc pro tunc judgment entry as 

directed by this court. 

{¶9} On July 21, 2016, appellant filed a second motion for resentencing which 

the trial court denied the next day. 

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

consideration. Assignments of error are as follows: 

I 

{¶11} "DEFENDANT-APPELLANT'S FUNDAMENTAL AND SUBSTANTIAL 

RIGHT TO PROCEDURAL DUE PROCESS AND EQUAL PROTECTION OF THE 

LAWS, GUARANTEED BY THE 14TH AMENDMENT TO THE UNITED STATES 

CONSTITUTION, ARTICLE I, SECTIONS 2 & 16 OF THE OHIO CONSTITUTION, 

WAS VIOLATED; WHEN THE TRIAL COURT [FAILED TO COMPLY WITH 
Delaware County, Case No. 16 CAA 08 0033 4 

STATUTORILY MANDATED TERMS AND RULE REQUIREMENTS] PURSUANT TO 

CRIM.R. 32(B)(3)(a), (b); CRIM.R.32(C); R.C. 120.05(A); OHIO ADMINISTRATIVE 

CODE RULE: 120-1-03; 120-1-05; RESULTING IN [JURISDICTIONAL, 

PROCEDURAL, PREJUDICIAL, AND REVERSIBLE PLAIN ERROR], THEREBY, 

RENDERING HIS [SENTENCE & SENTENCING ENTRY], [UNAUTHORIZED BY 

LAW], [CONTRARY TO LAW], [A NULLITY AND VOID IN-PART]." 

II 

{¶12} "DEFENDANT-APPELLANT'S FUNDAMENTAL AND SUBSTANTIAL 

RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL, GUARANTEED BY THE 

6TH AMENDMENT, UNDER THE EQUAL PROTECTION AND DUE PROCESS 

CLAUSE OF THE 14TH AMENDMENT TO THE UNITED STATES CONSTITUTION; 

ARTICLE I, SECTION 2, 10 & 16, OF THE OHIO CONSTITUTION, WAS VIOLATED; 

WHEN TRIAL COUNSEL FAILED TO [OBJECT] TO THE COURT'S VOID 

IMPOSITION OF SENTENCE PURSUANT TO CRIM.R.44 (A); CRIM.R. 32(B)(3)(a),(b) 

AS WELL AS APPELLATE COUNSEL'S FAILURE TO RAISE THE ISSUE ON 

APPEAL; ALSO TRIAL COUNSEL FAILED TO COMPLY WITH R.C. 120.05 (A), (B); 

FAILING TO [INVESTIGATE] AND SUBMIT A FINANCIAL DISCLOSURE/AFFIDAVIT 

OF INDIGENCY FORM TO THE COURT FOR DETERMINATION OF INDIGENCY 

AND POSSIBLE WAIVER OF COURT COSTS, AS WELL AS APPELLANT 

COUNSELS FAILURE TO RAISE THIS ISSUE ON APPEAL; TRIAL COUNSEL ALSO, 

[FAILED TO INFORM, CONSULT, ADVISE, AND EXPLAIN] THESE 

CIRCUMSTANCES AS A POSSIBLE OUTCOME OR PENALTY IN THE EVENT OF 

CONVICTION TO APPELLANT, DURING [PRETRIAL PLEA NEGOTIATIONS]; THUS, 
Delaware County, Case No. 16 CAA 08 0033 5 

RENDERING [BOTH] COUNSEL'S PERFORMANCE CONSTITUTIONALLY 

DEFICIENT, BELOW AN OBJECTIVE STANDARD OF REASONABLENESS, 

THEREBY, RESULTING IN A [VOIDABLE CONVICTION] IN THIS REGARD, AND A 

[SUBSTANTIAL PREJUDICE SUFFERED]. 

I, II 

{¶13} Appellant once again challenges his sentence and claims ineffective 

assistance of counsel. 

{¶14} In his second motion for resentencing filed on July 21, 2016, appellant 

listed several questions for review at pages 21 and 36. In its July 22, 2016 judgment 

entry denying the motion, the trial court stated the following: 

 Because both I and the court of appeals have already addressed in 

our earlier rulings the issues surrounding the defendant's sentence that he 

now raises again, and because nothing in R.C. 2953.23(A) or any other 

statute or rule permits the defendant to continue to raise his sentencingrelated claims now, his latest request for resentencing is denied. 

{¶15} In reviewing previous motions and rulings and appellant's second motion 

for resentencing, we concur with the trial court's analysis. 

{¶16} In State v. Reynolds, 79 Ohio St.3d 158, 160, 1997-Ohio-304, the 

Supreme Court of Ohio explained despite a motion's caption, a motion meets the 

definition of a petition for postconviction relief under R.C. 2953.21 if it is (1) filed 
Delaware County, Case No. 16 CAA 08 0033 6 

subsequent to a direct appeal; (2) claims a denial of constitutional rights; (3) seeks to 

render the judgment void; and (4) asks for vacation of the judgment and sentence. 

{¶17} Accordingly, in reviewing appellant's second motion for resentencing, we 

find it to be a petition for postconviction relief as defined in R.C. 2953.21. Based upon 

appellant's past filings, the subject motion was a successive petition for postconviction 

relief. R.C. 2953.23 governs successive petitions and states the following in pertinent 

part, as subsection (A)(2) is not applicable sub judice: 

 (A) Whether a hearing is or is not held on a petition filed pursuant to 

section 2953.21 of the Revised Code, a court may not entertain a petition 

filed after the expiration of the period prescribed in division (A) of that 

section or a second petition or successive petitions for similar relief on 

behalf of a petitioner unless division (A)(1) or (2) of this section applies: 

 (1) Both of the following apply: 

 (a) Either the petitioner shows that the petitioner was unavoidably 

prevented from discovery of the facts upon which the petitioner must rely 

to present the claim for relief, or, subsequent to the period prescribed in 

division (A)(2) of section 2953.21 of the Revised Code or to the filing of an 

earlier petition, the United States Supreme Court recognized a new 

federal or state right that applies retroactively to persons in the petitioner's 

situation, and the petition asserts a claim based on that right. 

 (b) The petitioner shows by clear and convincing evidence that, but 

for constitutional error at trial, no reasonable factfinder would have found 
Delaware County, Case No. 16 CAA 08 0033 7 

the petitioner guilty of the offense of which the petitioner was convicted or, 

if the claim challenges a sentence of death that, but for constitutional error 

at the sentencing hearing, no reasonable factfinder would have found the 

petitioner eligible for the death sentence. 

{¶18} In reviewing appellant's second motion for resentencing/petition for 

postconviction relief, we find appellant did not satisfy the requirements of R.C. 2953.23. 

{¶19} In addition, appellant's arguments are barred under 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: 

 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 

conviction, or on an appeal from that judgment. 

{¶20} In reviewing appellant's second motion for resentencing/successive 

petition for postconviction relief, we find the arguments therein could have been raised 

on direct appeal. 
Delaware County, Case No. 16 CAA 08 0033 8 

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

motion/petition. 

{¶22} Assignments of Error I and II are denied. 

{¶23} The judgment of the Court of Common Pleas of Delaware County, Ohio is 

hereby affirmed. 

By Farmer, P.J. 

Gwin, J. and 

Delaney, J. concur. 

SGF/sg 926