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State v. Ward

Court of Appeals of Ohio, Tenth District

June 20, 2017

State of Ohio, Plaintiff-Appellee,
v.
Rex S. Ward, Defendant-Appellant.

         APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 97CR-270

          On brief: Ron O'Brien, Prosecuting Attorney, and Kimberly M. Bond, for appellee.

          On brief: Rex S. Ward, pro se.

          DECISION

          BROWN, J.

         {¶ 1} This is an appeal by defendant-appellant, Rex S. Ward, from a judgment of the Franklin County Court of Common Pleas denying his "motion to vacate a void judgment entry and sentence."

         {¶ 2} On January 17, 1997, appellant was indicted on two counts of kidnapping, two counts of aggravated burglary, three counts of robbery, four counts of rape, three counts of theft, four counts of receiving stolen property, one count of aggravated robbery, and one count of felonious assault. On October 17, 1997, appellant entered a guilty plea to all counts of the indictment. By entry filed February 11, 1998, the trial court sentenced appellant to an aggregate term of 38 years incarceration.

          {¶ 3} On June 30, 2006, appellant filed a motion for leave to file a delayed appeal from the trial court's 1998 judgment. By entry filed August 8, 2006, this court denied appellant's motion (and subsequently denied his application for reconsideration).

         {¶ 4} On December 22, 2014, appellant filed a pro se motion to withdraw his guilty plea pursuant to Crim.R. 32.1. In the accompanying memorandum in support, appellant argued the trial court improperly imposed post-release control and that the court failed to notify him of his right to appeal and the mandatory nature of the sentences. By decision and entry filed July 29, 2015, the trial court denied appellant's motion to withdraw his plea.

         {¶ 5} Following an appeal, this court affirmed the judgment of the trial court holding that appellant filed his post-sentencing motion to withdraw his guilty plea after an unreasonably long delay and that he failed to demonstrate prejudice and manifest injustice based on the procedural defects alleged. See State v. Ward, 10th Dist. No. 15AP-794, 2016-Ohio-216 ("Ward I "). Appellant subsequently filed a motion for leave to file an application for reconsideration and consideration en banc. By memorandum decision filed April 28, 2016, this court denied appellant's motion. State v. Ward, 10th Dist. No. 15AP-794 (Apr. 28, 2016) (memorandum decision) ("Ward II ").

         {¶ 6} On June 22, 2016, appellant filed a pro se motion to "vacate a void judgment entry and sentence." In his accompanying memorandum in support, appellant argued in part: "Because [the trial court] did not specify what sentences it was imposing as mandatory, it can only be seen as the entire sentence of thirty eight (38) years was ordered mandatory." On July 6, 2016, plaintiff-appellee, State of Ohio, filed a memorandum contra appellant's motion to vacate arguing that, construed as a petition for post-conviction relief, appellant's petition was untimely and barred by the doctrine of res judicata.

         {¶ 7} By decision and entry filed October 24, 2016, the trial court denied appellant's motion to vacate, construing the motion as a petition for post-conviction relief and finding it to be untimely. In its decision, the trial court further noted the Tenth District Court of Appeals had "previously confirmed" there was no error in the sentencing entry.

         {¶ 8} On appeal, appellant sets forth the following assignment of error for this court's review:

THE TRIAL COURT ERRED IN RECASTING THE DEFENDANT-APPELLANT'S MOTION TO VACATE A VOID JUDGMENT AND SENTENCE AS A POSTCONVICTION PETITION AND ERRED IN FAILING TO VACATE THE VOID SENTENCE AND JUDGMENT VIOLATING THE DEFENDANT-APELLANT'S DUE PROCESS AND EQ[U]AL PROTECTION RIGHTS SECURED BY BOTH THE UNITED STATES AND OHIO CONSTITUTIONS.

         {¶ 9} Under his single assignment of error, appellant contends the trial court erred by improperly recasting his motion to vacate as a petition for post-conviction relief and in failing to vacate a "void" sentence and judgment. As to his latter argument, appellant asserts the trial court's 1998 sentencing entry failed to reflect what actually happened at the plea and sentencing hearings. Specifically, appellant contends the trial court imposed a void sentence by imposing a blanket ...


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