Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-05-463674-A.
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Tasha L. Forchione and Jennifer Meyer,
Assistant Prosecuting Attorneys, for appellee.
J. Friedman, for appellant.
JOURNAL ENTRY AND OPINION
EILEEN KILBANE, ADMINISTRATIVE JUDGE.
1} In this delayed appeal, defendant-appellant,
Bentley Axson ("Axson"), appeals from the trial
court's denial of his motion for resentencing. For the
reasons set forth below, we affirm.
2} In March 2005, Axson was charged with rape,
kidnapping, and aggravated robbery. Axson was incarcerated at
the time he was indicted with these charges. As a result of
his prior convictions, his DNA was entered into the
state's DNA database. Axson's DNA was a match for the
unsolved May 1995 rape of Jane Doe, which prompted the
charges in the instant case.
3} The matter proceeded to a jury trial in December
2005. Prior to the voir dire, the parties appeared before the
trial court to discuss evidentiary issues. Among other
stipulations, the parties agreed that the Bureau of Criminal
Investigation and Cleveland detectives would not discuss the
fact that Axson was incarcerated. The parties further agreed
to stipulate that the jury would be instructed that
Axson's identity was established with the use of a known
DNA sample. Defense counsel then advised that:
there is no dispute that there was sexual intercourse between
the victim * * * and Axson. There is not going to be a
question about that. So that's the reason for the
stipulation, your honor.
The defense in this case, as I've made clear to the state
of Ohio, is going to be one of consent.
4} The parties also discussed whether evidence of
four prior criminal cases would be admissible under Evid.R.
404(B) to demonstrate commonality of planning and purpose of
intent, which would negate consent. The trial court permitted
the evidence as to one of Axson's prior criminal cases
because that case also involved allegations of robbery,
abduction, and rape. In doing so, the court noted:
What I want to point out, and I'm sure [defense counsel]
pointed this out to you, [Axson], is that if the defense of
consent is a defense that's going to be used in this
case, it has to come from direct testimony of witnesses.
5} Two days later, after the jury was impaneled and
sworn, the parties reached a plea agreement, wherein Axson
would plead guilty to rape, kidnapping, and robbery as
charged in the indictment. The state and Axson stipulated to
an agreed sentence, consisting of a term of ten to
twenty-five years per count, with each of the three counts to
run concurrent to each other, and consecutive to Axson's
sentence in another case.
6} After engaging in a plea colloquy with Axson and
finding Axson guilty as to each count, the court sentenced
Axson to a prison term of ten to twenty-five years on each
count, to be served concurrently with each other, and
consecutive to the sentence in Axson's other case. The
court also imposed a $10, 000.00 fine as to each count. Axson
did not seek a direct appeal of the conviction following his
7} Then in June 2018, Axson filed a pro se motion
for resentencing under Criminal Rule 32(B), claiming that the
trial court failed to inform him of his right to appeal. The
state opposed, and the trial court denied the motion in July
8} Axson filed a pro se motion for leave to file a
delayed appeal in February 2019, which this court granted. In
his motion, Axson indicated that he was appealing the trial
court's July 2018 denial of his motion for resentencing.
9} Axson now raises the following assignment ...