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State v. Axson

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 19, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
BENTLEY AXSON, Defendant-Appellant.

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-05-463674-A.

         JUDGMENT: AFFIRMED

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Tasha L. Forchione and Jennifer Meyer, Assistant Prosecuting Attorneys, for appellee.

          Scott J. Friedman, for appellant.

          JOURNAL ENTRY AND OPINION

          MARY 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.[1] 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 guilty plea.

         {¶ 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 2018.

         {¶ 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 ...


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