Court of Appeals of Ohio, Fourth District, Vinton
E. Craft, Chillicothe, Ohio, Pro Se Appellant.
Kimes-Brown, Vinton County Prosecutor, and William L. Archer,
Jr., Assistant Vinton County Prosecutor, McArthur, Ohio, for
DECISION AND JUDGMENT ENTRY
MATTHEW W. McFARLAND, JUDGE
Thomas E. Craft appeals from a judgment denying his
postconviction "Verified Motion to Correct Sentence,
" which he filed thirteen years after he was convicted
and sentenced for murder and a firearm specification,
convictions which were directly appealed to this Court and
affirmed in 2005. Appellant raises one assignment of error on
appeal, contending that the trial court erred and abused its
discretion when it overruled his verified motion without an
evidentiary hearing, and by incorrectly ruling that the
sentences imposed were not contrary to law and that his
claims are barred by res judicata.
Because Appellant's nonconstitutional claims, which
involve allegations that the trial court failed to make the
required statutory findings before imposing mandatory and
consecutive prison terms and allegations that the trial court
failed to advise him of his right to appeal his sentence, are
barred by res judicata, we reject his assertions. Further, to
the extent his verified motion raised constitutional claims,
it should have been construed as an untimely petition for
post-conviction relief that the trial court lacked
jurisdiction to address. As such, Appellant's sole
assignment of error is overruled and the judgment of the
trial court is affirmed, with the exception of the portion of
the trial court's judgment which this Court modifies to
reflect dismissal of his constitutional claims.
In April of 2004, Appellant was found guilty by a jury of one
count of murder, in violation of R.C. 2903.02(A), along with
a firearm specification, in violation of R.C. 2941.145. The
trial court sentenced Appellant to an indefinite prison term
of fifteen years to life on the murder conviction and a
mandatory, stated prison term of three years on the firearm
specification, to be served consecutively.
Appellant filed a direct appeal from his convictions claiming
they were against the manifest weight of the evidence, and
also raising various claims of ineffective assistance of
counsel and other constitutional claims. This Court found no
merit to any of the assignments of error raised by Appellant
and affirmed the judgment of the trial court. State v.
Craft, 4th Dist. Vinton No. 04CA589, 2005-Ohio-3944.
Then, in 2016, Appellant filed a pro se "Verified Motion
to Correct Sentence." His motion contended that his
claims were not barred by waiver or res judicata, and that
his sentences were contrary to law. He argued that the trial
court erred in imposing mandatory and consecutive sentences,
failed to advise of him of his right to appeal his sentences,
and that these failures deprived him of procedural due
process. Appellant's motion requested that the trial
court issue an order of resentencing after holding a hearing,
"that the Judgment Entry be corrected to reflect a
corrected factual basis; that he is actually guilty of a
lesser included [offense, ]" and to impose a
"non-mandatory and concurrent sentence that; leaves him
eligible for Judicial Release and the ability to get Earned
Credit * * *." The trial court denied Appellant's
motion. It is from the denial of this motion that Appellant
now brings his appeal, setting forth a single assignment of
error for our review.
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT
OVERRULED AND DENIED DEFENDANT'S PROPERLY FILED VERIFIED
MOTION TO CORRECT SENTENCE, ALLEGING SENTENCING ERRORS,
WITHOUT ANY REAL REVIEW OR HOLDING A HEARING, INCORRECTLY
RULING THAT THE SENTENCE IMPOSED WAS NOT CONTRARY TO LAW AND
FURTHER INCORPORATING THE STATE'S FLAWED ARGUMENT THAT
THESE ERRORS CAN ONLY BE RAISED ON DIRECT APPEAL AND ARE
BARRED FROM REVIEW UNDER PRINCIPLES OF RES JUDICATA."
When reviewing a felony sentence, we apply the standard of
review set forth in R.C. 2953.08(G)(2). State v.
Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d
1231, ¶ 22. Under R.C. 2953.08(G)(2), an appellate court
may increase, reduce, or modify a sentence or may vacate the
sentence and remand the matter to the sentencing court if it
clearly and convincingly finds either "[t]hat the record
does not support the sentencing court's findings under
division (B) or (D) of section 2929.13, division (B)(2)(e) or
(C)(4) of section 2929.14, or division (I) of section 2929.20
of the Revised Code, whichever, if any, is relevant" or
"[t]hat the sentence is otherwise contrary to law."
See State v. Mullins, 4th Dist. Scioto No. 15CA3716,
2016-Ohio-5486, ¶ 25.
As set forth above, in his sole assignment of error,
Appellant contends that the trial court erred and abused its
discretion in denying his "Verified Motion to Correct
Sentence" without holding a hearing. Appellant further
contends that the trial court erred in determining that his
sentences were not contrary to law and that his arguments
were barred by res judicata. The State contends that the
trial court's decision should ...