[Cite as State v. Westbrook, 2012-Ohio-6292.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

SCIOTO COUNTY 

STATE OF OHIO, : Case No. 11CA3455 

 : 

Plaintiff-Appellee, : 

: DECISION AND 

v. : JUDGMENT ENTRY

 : 

JOEY WESTBROOK, : 

 : RELEASED 10/31/12 

 : 

 Defendant-Appellant. : 

______________________________________________________________________ 

APPEARANCES: 

Bryan Scott Hicks, Lebanon, Ohio, for appellant. 

Mark E. Kuhn, Scioto County Prosecutor, and Pat Apel, Scioto County Assistant 

Prosecutor, Portsmouth, Ohio, for appellee. 

______________________________________________________________________ 

Harsha, J. 

{¶1} Joey Westbrook was convicted of various drug offenses and sentenced to 

16 years imprisonment. His appointed appellate counsel filed a brief under Anders v. 

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), advising us that he has 

reviewed the record and can find no meritorious claims. As a result he has moved to 

withdraw from this case. We agree with counsel that the proposed assignment of error 

has no arguable merit and grant his motion to withdraw. Furthermore, after 

independently reviewing the record we find that no arguably meritorious issues exist. 

Accordingly, we affirm the trial court's judgment. 

I. FACTS 

{¶2} Joey Westbrook was convicted of various drug offenses and filed a direct 

appeal with this court. Accordingly, the trial transcripts in this case were forwarded to 
Scioto App. No. 11CA3455 2

the court on June 9, 2009. We reversed the trial court’s judgment in part and remanded 

the case for resentencing. Upon remand, the trial court sentenced Westbrook to 16 

years. 

{¶3} On June 23, 2011, Westbrook filed a motion for relief from judgment under 

Civ.R. 60(B), urging the trial court to reconsider its 16 year sentence. However, the trial 

court construed Westbrook’s motion as a petition for post-conviction relief under R.C. 

2953.21 and Crim.R. 35. The court found that the motion was untimely because it was 

filed more than 180 days after the trial transcripts were filed with this court. 

Consequently, the trial court overruled his motion. This appeal followed. 

II. PROPOSED ASSIGNMENT OF ERROR 

{¶4} “In Anders, the United States Supreme Court held that if counsel 

determines after a conscientious examination of the record that the case is wholly 

frivolous, counsel should so advise the court and request permission to withdraw. 

Counsel must accompany the request with a brief identifying anything in the record that 

could arguably support the appeal. Counsel also must furnish the client with a copy of 

the brief and request to withdraw and allow the client sufficient time to raise any matters 

that the client chooses. Once these requirements have been satisfied, the appellate 

court must then fully examine the proceedings below to determine if any arguably 

meritorious issues exist. If the appellate court determines that the appeal is frivolous, it 

may grant counsel’s request to withdraw and dismiss the appeal without violating 

federal constitutional requirements or it may proceed to a decision on the merits if state 

law so requires. Alternatively, if the appellate court concludes that any of [the] legal 

points are arguable on their merits, it must afford the appellant the assistance of 
Scioto App. No. 11CA3455 3

counsel to argue the appeal.” (Citations omitted.) State v. Ross, 4th Dist. No. 10CA31, 

2011-Ohio-1136, ¶ 3. 

{¶5} Here, Westbrook’s appointed counsel has satisfied the requirements set 

forth in Anders and Westbrook has filed a pro se brief. Consequently, we will examine 

appointed counsel’s proposed assignment of error, the pro se assignments of error and 

the entire record to determine if this appeal has arguable merit. 

{¶6} Appointed counsel raises one proposed assignment of error for our 

review: 

{¶7} 1. “MR. WESTBROOK’S MOTION WAS IMPROPERLY DENIED.” 

III. LAW AND ANALYSIS 

{¶8} Appointed counsel proposes that the trial court erred by construing 

Westbrook’s motion filed under Civ.R. 60(B) as a motion for post-conviction relief and 

applying the time bar for that procedure. Counsel argues that because the criminal 

rules provide no express mechanism to allow a court to reconsider its sentence, Civ.R. 

60(B) and its procedure were controlling here. Counsel claims the trial court incorrectly 

denied the motion as untimely under the criminal rule and R.C. 2953.21. 

{¶9} Crim.R. 57(B) states, “If no procedure is specifically prescribed by rule, the 

court may proceed in any lawful manner not inconsistent with these rules of criminal 

procedure, and shall look to the rules of civil procedure and to the applicable law if no 

rule of criminal procedure exists.” 

{¶10} Under Civ.R. 60(B), the court may relieve a party from a final judgment for: 

“(1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered 

evidence which by due diligence could not have been discovered in time to move for a 
Scioto App. No. 11CA3455 4

new trial under Rule 59(B); (3) fraud * * * misrepresentation or other misconduct of an 

adverse party; (4) the judgment has been satisfied, released or discharged, or a prior 

judgment upon which it is based has been reversed or otherwise vacated, or it is no 

longer equitable that the judgment should have prospective application; or (5) any other 

reason justifying relief from the judgment.” 

{¶11} “[T]he plain language of Crim.R. 57(B) permits a trial court in a criminal 

case to look to the Rules of Civil Procedure for guidance when no applicable Rule of 

Criminal Procedure Exists.” State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 

N.E.2d 431, ¶ 10. However, “[c]ourts may recast irregular motions into whatever 

category necessary to identify and establish the criteria by which the motion should be 

judged.” Id. at ¶ 12. 

{¶12} The Supreme Court of Ohio has held that when a defendant files a Civ.R. 

60(B) motion “subsequent to his direct appeal, claim[ing] a denial of constitutional 

rights, and s[eeking] reversal of the judgment rendered against him,” the criminal rules 

provide a procedure for seeking that relief, a petition for post-conviction relief under 

Crim.R. 35. Schlee at ¶ 12. “Thus, it is not necessary to look to the Civil Rules or other 

applicable law for guidance in the way Crim.R. 57(B) intends, because a procedure 

‘specifically prescribed by rule’ exists, i.e., Crim.R. 35.” Id. Crim.R. 35 sets forth the 

procedure by which criminal defendants can file petitions for post-conviction relief. Id. at 

¶ 11. 

{¶13} Here, the trial court was free to “recast” Westbrook’s Civ.R. 60(B) motion 

as a motion for post-conviction relief under Crim.R. 35 because he claims a violation of 

his constitutional Due Process rights and seeks to modify his 16 year sentence. In fact, 
Scioto App. No. 11CA3455 5

Westbrook concludes that his sentence should be modified based on the “constitutional 

questions” raised in his motion. Accordingly, the trial court appropriately construed 

Westbrook’s motion as a petition for post-conviction relief. And because Westbrook 

filed the motion more than 180 days after the trial transcripts were filed with this court, it 

was untimely. See R.C. 2953.2(A)(2). 

{¶14} In his pro se motion, Westbrook raises issues that could have been raised 

in his direct appeal, as they are all matters that were contained within the original 

record.1

 He argues that: (1) his convictions are against the weight of the evidence and 

not supported by sufficient evidence; (2) the trial court allowed inadmissible hearsay; (3) 

his Due Process rights were violated; (4) the court abused its discretion; (5) his civil 

rights have been violated; and (6) “the offenses” are allied offenses of similar import. In 

fact on direct appeal, Westbrook argued that several of his convictions should have 

merged for sentencing because they were allied offenses of similar import and we 

reversed his sentence in part on this basis. State v. Westbrook, 4th Dist. No.

09CA3277, 2010-Ohio-2692, ¶ 64. 

{¶15} If a petitioner alleges errors that he raised on direct appeal or could have 

raised on direct appeal, then the doctrine of res judicata bars the claim for postconviction relief. State v. Bradley, 4th Dist. No. 98CA2592, 1999 WL 198773 (Mar. 30, 

1999), *5. “[T]he doctrine serves to preclude a defendant who has had his day in court 

from seeking a second on that same issue. In so doing, res judicata promotes the 

principles of finality and judicial economy by preventing endless relitigation of an issue 

 

1

 Westbrook filed an Application for Reopening under App. R. 26(B) on April 19, 2012. Because his 

appeal was still pending, we denied the application but deemed it his pro se response to counsel’s 

Anders brief. 
Scioto App. No. 11CA3455 6

on which a defendant has already received a full and fair opportunity to be heard.” State 

v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 18. Because 

Westbrook had a prior opportunity to litigate the claims that he sets forth in his pro se 

arguments, they are also barred under the doctrine of res judicata. State v. Perry, 10 

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

{¶16} In conclusion, we find no arguable merit in appellate counsel’s proposed 

assignment of error and grant his motion to withdraw. Likewise, there is no arguable 

merit in Westbrook’s pro se assignments either. And after reviewing the record for other 

potential errors, we can find no arguably meritorious issues for appeal. Accordingly, we 

affirm the trial court’s judgment. 

JUDGMENT AFFIRMED. 
Scioto App. No. 11CA3455 7

JUDGMENT ENTRY

 It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the 

costs. 

 The Court finds there were reasonable grounds for this appeal. 

 It is ordered that a special mandate issue out of this Court directing the Scioto 

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

 IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS 

BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is 

temporarily continued for a period not to exceed sixty days upon the bail previously 

posted. The purpose of a continued stay 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 continued by this entry, it will terminate at the earlier of the expiration of the 

sixty day period, or the failure of the Appellant to file a notice of appeal with the 

Supreme Court 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 terminate as 

of the date of such dismissal. 

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

the Rules of Appellate Procedure. Exceptions. 

Abele, P.J. & Kline, J.: Concur in Judgment and Opinion. 

 For the Court 

 BY: ________________________ 

 William H. Harsha, Judge 

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final judgment 

entry and the time period for further appeal commences from the date of filing 

with the clerk.