[Cite as State v. Williams, 2015-Ohio-4576.]

COURT OF APPEALS 

DELAWARE COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : Hon. W. Scott Gwin, P.J. 

 Plaintiff - Appellee : Hon. John W. Wise, J. 

 : Hon. Craig R. Baldwin, J. 

-vs- : 

 : 

BRIAN L. WILLIAMS : Case No. 15 CAA 03 0023 

 : 

 Defendant - Appellant : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Delaware County 

Court of Common Pleas, Case No. 

08CR-I-06-0347 

JUDGMENT: Affirmed 

DATE OF JUDGMENT: November 3, 2015 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

CAROL HAMILTON O'BRIEN BRIAN L. WILLIAMS, pro se 

Prosecuting Attorney CCI, #A586-903 

 P.O. Box 5500 

By: DOUGLAS N. DUMOLT Chillicothe Correctional Institution 

Assistant Prosecuting Attorney 15802 State Route 104 North 

Delaware County Prosecutor’s Office Chillicothe, OH 45061 

140 North Sandusky Street 

Delaware, OH 43015 
Delaware County, Case No. 15 CAA 03 0023 2 

Baldwin, J. 

{¶1} Appellant Brian L. Williams appeals a judgment of the Delaware County 

Common Pleas Court dismissing his motion to present plain errors and defects. 

Appellee is the State of Ohio. 

STATEMENT OF FACTS AND CASE 

{¶2} On June 23, 2008, appellant entered a guilty plea to a Bill of Information 

charging him with two counts of sexual battery in violation of R.C. 2907.03(A)(12). 

According to information presented at the sentencing hearing, appellant had both oral 

and vaginal sex with a 15-year-old member of the church at which he worked as a 

pastor. Appellant had been counseling the victim for personal and mental health 

problems. The court sentenced appellant to four years incarceration on each count, to 

be served consecutively. 

{¶3} Appellant filed a "motion to present plain errors and defects and request 

for an evidentiary hearing to correct an illegal sentence" on November 25, 2014. In his 

motion, appellant argued that the charges were allied offenses of similar import, that the 

court erred in sentencing him to consecutive sentences, that the court failed to advise 

him of his right to appeal at sentencing, and that his trial counsel was ineffective. The 

trial court overruled the motion, finding that appellant's claims should have been raised 

on direct appeal or pursuant to a timely petition for postconviction relief under R.C. 

2953.21. 

{¶4} Appellant assigns the following errors to this Court: 

{¶5} "I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY 

DENYING DEFENDANT'S CLEARLY DEFINED MOTION TO PRESENT PLAIN 
Delaware County, Case No. 15 CAA 03 0023 3 

ERRORS TO CORRECT AN ILLEGAL SENTENCE AS AN IMPROPER SUBSTITUTE 

FOR AN APPEAL OR POSTCONVICTION RELIEF. 

{¶6} "II. THE TRIAL COURT ERRED BY DETERMINING THAT TWO 

COUNTS OF SEXUAL BATTERY; WHICH OCCURRED ON THE SAME DAY, DATE 

AND TIME INVOLVING THE SAME VICTIM WERE NOT ALLIED OFFENSES OF 

SIMILAR IMPORT UNDER O.R.C. SECTION 2941.25(B); AND THIS WAS PLAIN 

ERROR WHICH IS ON THE FACE OF THE RECORD AND CAN BE NOTICED AT 

ANY TIME; NOT BARRED BY WAIVER OR RES JUDICATA. 

{¶7} "III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY 

RUNNING APPELLANT'S SENTENCES CONSECUTIVELY; WITHOUT 

ESTABLISHING A NEED FOR CONSECUTIVE SENTENCES UNDER THE 

MANDATES OF THE FELONY SENTENCES STATUTES AND THE SPECIFIC 

PROVISIONS OF O.R.C. SECTION 2929.14(E)(4). 

{¶8} "IV. THE TRIAL COURT ERRED AND DENIED APPELLANT DUE 

PROCESS BY FAILING TO ADDRESS, AT SENTENCING, THAT HE HAD THE 

RIGHT TO APPEAL THE COURT'S DECISIONS; SPECIFICALLY INCLUDING THE 

RIGHT TO APPEAL THE SENTENCE. IN FACT, NO NOTICE WAS EVER GIVEN TO 

APPELLANT AS THE SENTENCING ENTRY OF AUGUST 19, 2008 WAS ALSO 

SILENT AS TO HIS RIGHT TO APPEAL ANY ASPECT OF THE CONVICTION OR 

SENTENCE. 

{¶9} "V. THE APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF 

COUNSEL AT CRITICAL STAGES OF THE PROCEEDINGS, PRE-TRIAL; 

INCLUDING LIES AND MISREPRESENTATIONS REGARDING THE RESULT OF HIS 
Delaware County, Case No. 15 CAA 03 0023 4 

GUILTY PLEA AND SENTENCE AS WELL AS HIS RIGHT TO APPEAL THE TRIAL 

COURT'S DECISIONS AND SENTENCE." 

I. 

{¶10} In his first assignment of error, appellant argues that the court erred in 

finding his claims to be untimely and barred by res judicata. 

{¶11} A motion to correct or vacate a sentence, despite its caption, meets the 

definition of a motion for postconviction relief set forth in R.C. 2953.21(A)(1), if it was (1) 

filed subsequent to 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. State 

v. Reynolds, 79 Ohio St.3d 158, 160, 679 N.E.2d 1131 (1997). Appellant's motion 

meets this definition, and therefore despite its caption was a petition for postconviction 

relief. 

{¶12} Because appellant did not file a direct appeal from his conviction, 

appellant had 365 days after the expiration of the time for filing an appeal in which to file 

a petition for postconviction relief. Appellant's judgment of sentence was filed on 

August 19, 2008. Therefore, a timely petition for postconviction relief must have been 

filed in September of 2009. Appellant did not file his petition until November 25, 2014. 

The petition was therefore untimely, and the court did not err in dismissing it without a 

hearing. 

{¶13} R.C. 2953.23(A)(1) allows the court to consider an untimely petition if both 

of the following apply: 

{¶14} "(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 
Delaware County, Case No. 15 CAA 03 0023 5 

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. 

{¶15} "(b) The petitioner shows by clear and convincing evidence that, but for 

constitutional error at trial, no reasonable factfinder would have found 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." 

{¶16} Although appellant argues that he was not informed of his right to appeal 

pursuant to Crim. R. 32, he did not demonstrate that he was unavoidably prevented 

from timely discovering the facts on which he relied to present his claim for 

postconviction relief as required by R.C. 2953.23(A)(1). 

{¶17} The trial court did not err in dismissing appellant's petition as untimely 

filed. The first assignment of error is overruled. 

II.-V. 

{¶18} Because appellant's petition was not timely filed, his second through fifth 

assignments of error, which address the merits of his petition, are moot. Assignments 

of error two, three, four and five are accordingly overruled. 

 
Delaware County, Case No. 15 CAA 03 0023 6 

{¶19} The judgment of the Delaware County Common Pleas Court is affirmed. 

Costs are assessed to appellant. 

By: Baldwin, J. 

Gwin, P.J. and 

Wise, J. concur.