Court of Appeals of Ohio, Second District, Montgomery
Court Case No. 2007-CR-4544 (Criminal Appeal from Common
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No.
0069384, Montgomery County Prosecutor's Office, Appellate
Division, Montgomery County Attorney for Plaintiff-Appellee
GREGORY CLEMMONS, #A577-226, Defendant-Appellant, Pro Se
1} Gregory Clemmons, pro se, appeals from a judgment
of the Montgomery County Court of Common Pleas, which denied
his petition for postconviction relief. For the following
reasons, the trial court's judgment will be affirmed.
2} In April 2008, after a jury trial, Clemmons was
convicted of rape of a child under the age of ten. The trial
court sentenced him to 15 years to life in prison and
designated him a Tier III sex offender. We affirmed
Clemmons's conviction on direct appeal. State v.
Clemmons, 2d Dist. Montgomery No. 22749, 2009-Ohio-2066.
3} In February 2009, Clemmons sought postconviction
relief, raising that his conviction was not supported with
sufficient evidence and that his trial counsel was
ineffective for failing to file a notice of alibi and to call
alibi witnesses at trial. Clemmons presented affidavits from
two potential defense witnesses, who indicated that defense
counsel had told them they would not testify. With leave of
court, Clemmons amended his petition in April 2009. He
included several additional exhibits, including (1) several
of his own statements, (2) excerpts of the trial transcript,
(3) his booking information at the jail, (4) an affidavit
from his daughter, which claimed that the victim's
step-father should have been pursued by the police as an
alternate suspect, (5) evidence that Island MetroPark's
fountains began operating on May 28, 2007, and (6) an
affidavit from a potential defense witness that the bathroom
where the incident allegedly occurred did not have a door.
The trial court denied Clemmons's petition. Clemmons
appealed that decision, but the appeal was dismissed for
failure to prosecute the matter. State v. Clemmons,
2d Dist. Montgomery No. 23629 (Jan. 25, 2010).
4} Clemmons subsequently sought postconviction DNA
testing, which was denied. We affirmed that order. State
v. Clemmons, 2d Dist. Montgomery No. 24377,
5} In December 2013, Clemmons filed motions to
vacate his sentence, which were not resolved by the trial
court. On August 18, 2017, Clemmons filed a "motion to
correct an illegal sentence," claiming that the trial
court failed to properly notify him that he was subject to
post-release control. Clemmons argued that his post-release
control obligation was included in the judgment entry, but he
was not notified of that obligation at sentencing.
6} On September 19, 2017, the trial court held a
sentencing hearing to address post-release control. At the
hearing, the trial court informed Clemmons that the
resentencing was on post-release control only and that he had
already been sentenced on the rape offense. The court allowed
Clemmons to make a statement on his own behalf, and Clemmons
expressed that the State used false testimony to obtain his
conviction. Clemmons stated that there were "seven
different versions" of the accusation against him, and
he asserted that the jurors would not have convicted him had
they known about the multiple versions.
7} The trial court responded to Clemmons that the
hearing was for resentencing on post-release control only,
that "all of the arguments and statements you have made
today have been issues that you have raised previously,"
that his conviction had been affirmed on appeal, and that the
issues raised by him were barred by res judicata. The court
then orally imposed post-release control. On September 21,
2017, the court filed an amended judgment entry, which
reiterated the previously-imposed sentence and indicated that
Clemmons had been resentenced for the advisement of
post-release control only.
8} Clemmons appealed from the amended judgment
entry, raising that (1) the prosecutor engaged in misconduct
at trial, (2) the indictment was insufficient to put him on
fair notice of the charges against him, (3) the State failed
to disclose prior inconsistent statements by his accuser, (4)
the court erred in relying on "perjured testimony of
Detective Dix" in denying Clemmons's motion to
suppress, and (5) the trial court erred when it denied him
the opportunity to present evidence of other possible
perpetrators. State v. Clemmons, 2d Dist. Montgomery
No. 27769, 2018-Ohio-2747, ¶ 8.
9} On March 26, 2018, prior to our resolution of
Clemmons's appeal, Clemmons filed in the trial court a
"petition to vacate or set aside judgment of conviction
or sentence (evidentiary hearing requested)." In his
petition, Clemmons asserted that the amended judgment entry
was a new judgment, which allowed him to "attack both
the new sentence and the undisturbed original
conviction." Clemmons stated that his petition was
timely, because it was filed within one year of the new
sentence and judgment. Clemmons's petition claimed that
his trial counsel had rendered ineffective assistance by (1)
failing to investigate the accuser's claims and his
alibi, (2) failing to investigate inconsistencies in the
accuser's statements to the government, (3) failing to
consult with an expert witness regarding the forensic
interview, and (4) failing ...