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State v. Clemmons

Court of Appeals of Ohio, Second District, Montgomery

July 26, 2019

STATE OF OHIO Plaintiff-Appellee
GREGORY CLEMMONS Defendant-Appellant

          Trial Court Case No. 2007-CR-4544 (Criminal Appeal from Common Pleas Court)

          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


          FROELICH, J.

         {¶ 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.

         I. Procedural History

         {¶ 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, 2011-Ohio-4474.

         {¶ 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 ...

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