State v. Downey, Case No. 2013CA00157
| Decision Date | 21 October 2013 |
| Docket Number | Case No. 2013CA00157 |
| Citation | 2013 Ohio 4693 |
| Parties | STATE OF OHIO Plaintiff-Appellee v. JEREMY MATHEW DOWNEY Defendant-Appellant |
| Court | Ohio Court of Appeals |
JUDGES:
Hon. W. Scott Gwin, P.J.
For Defendant-Appellant
JEREMY MATHEW DOWNEY PRO SE
Richland Correction Institution
{¶1} Appellant Jeremy Matthew Downey ["Downey"] appeals the July 15, 2013 Judgment Entry of the Stark County Court of Common Pleas denying his petition to vacate or set aside his conviction or sentence.
{¶2} In 2009, Downey pled guilty to failure to stop after an accident [R.C., 4549.02] and obstructing official business [R.C. 2921.31(A)] and was sentenced to community control sanctions for a period of three years. Less than two months after the imposition of the community control sanction, Downey's probation officer filed a motion to revoke or modify his probation. The grounds alleged were Downey's failure to complete his 100 hours of community service with a non-profit organization, as well as his "failure to comply with an outpatient drug assessment, drug treatment plan, random drug and alcohol monitoring, aftercare and use of all prescribed medications." After a hearing, the trial court held that these grounds were not sufficient to revoke Downey's community control sanction, but modified the probation by imposing additional conditions.
{¶3} Fifteen months later, Downey's probation officer once again filed a motion to revoke or modify probation, alleging several grounds. Downey was driving a motorcycle with a passenger and got into an accident, which resulted in Downey being charged with a number of criminal offenses. At the time of the accident, Downey had drugs and alcohol in his system, In addition, Downey apparently fled and did not keep in touch with his probation officer. Downey stipulated to his violations, and the trial court revoked the community control sanction and imposed an aggregate prison term of 22months. The trial court arrived at this term by imposing two 11-month prison terms consecutively.
{¶4} Downey did not appeal either the revocation or the sentence. Instead, he waited more than a year to file a "Motion to Run Cases Concurrent to Each Other." In this motion, Downey argued that his two offenses "arose out of a single incident," and thus multiple convictions and consecutive sentences were precluded by R.C., 2941.25.
{¶5} The prosecution's response argued that the two offenses — failure to stop after an accident, and obstructing official business — were not allied offenses of similar import under R.C. 2941.25 because they did not arise from the same criminal conduct. As the prosecution's response asserted,
{¶6} The trial court overruled Downey's motion by judgment entry "[f]or the reasons set forth in the State of Ohio's Response." Downey did not timely appeal this ruling. Instead, he filed for a delayed appeal pursuant to App. R. 5(A) without explaining the 305-day delay. This Court overruled Downey's motion by judgment entry.
{¶7} During the pendency of this delayed appeal, Downey filed a motion with the trial court that is the subject of the instant appeal. In this motion, titled "Petition to Vacate or Set Aside Judgment of Conviction or Sentence" and explicitly filed pursuant to R.C. 2953.21[Petition for post conviction relief], Downey argued that he was denied effective assistance of counsel. He specifically stated in the petition, "Counsel ['] sfailure to raise the issue of allied offenses prejudiced me and violated due process." In his short statement of facts supporting this claim, Downey asserted, "The charges are allied offences [sic], Counsel failed to raise the issue to the Court or me." The "brief" in support of the petition shifted the argument to an evidentiary basis from his earlier R.C. 2941.25 [Allied offenses] argument:
Pro se Appellants
{¶9} We understand that Downey has filed this appeal pro se. Nevertheless, "like members of the bar, pro se litigants are required to comply with rules of practice and procedure." Hardy v. Belmont Correctional Inst., 10th Dist. No. 06AP-116, 2006-Ohio-3316, ¶ 9. See, also, State v. Hall, 11th Dist. No. 2007-T-0022, 2008-Ohio-2128, ¶11. We also understand that "an appellate court will ordinarily indulge a pro se litigant where there is some semblance of compliance with the appellate rules." State v. Richard, 8th Dist. No. 86154, 2005-Ohio-6494, ¶4 (internal quotation omitted).
{¶10} In State v. Hooks, 92 Ohio St.3d 83, 2001-Ohio-150, 748 N.E.2d 528(2001), the Supreme Court noted, It is also a longstanding rule "that the record cannot be enlarged by factual assertions in the brief." Dissolution of Doty v. Doty, 4th Dist.No. 411, 1980 WL 350992 (Feb. 28, 1980), citing Scioto Bank v. Columbus Union Stock Yards, 120 Ohio App. 55, 59, 201 N.E.2d 227(1963). New material and factual assertions contained in any brief in this court may not be considered. See, North v. Beightler, 112 Ohio St.3d 122, 2006-Ohio-6515, 858 N.E.2d 386, ¶7, quoting Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843 N.E.2d 1202, ¶16. Therefore, we have disregarded facts and documents in Downey's brief that are outside of the record.
{¶11} In the interests of justice, after reviewing Downey's brief including his contentions, we have interpreted Downey's sole assignment of error in the following manner:
{¶12}
I.
{¶13} This case comes to us on the accelerated calendar. App. R. 11.1, which governs accelerated calendar cases, provides, in pertinent part:
(E) Determination and judgment on appeal. The appeal will be determined as provided by App. R. 11. 1. It shall be sufficient compliance with App. R. 12(A) for the statement of the reason for the court's decision as to each error to be in brief and conclusionary form. The decision may be by judgment entry in which case it will not be published in any form."
{¶14} One of the important purposes of the accelerated calendar is to enable an appellate court to render a brief and conclusionary decision more quickly than in a case on the regular calendar where the briefs, facts and legal issues are more complicated. Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d 655(10th Dist. 1983)
{¶15} This appeal shall be considered in accordance with the aforementioned rules.
{¶16} With respect to the Downey's July 12, 2013 Petition to Vacate or set aside Judgment of Conviction or Sentence, we note the caption of a pro se pleading does not definitively define the nature of the pleading. State v. Reynolds, 79 Ohio St.3d 158,1997-Ohio-304, 679 N.E.2d 1131. In Reynolds, the Ohio Supreme Court found, despite its caption, the appellant's pleading met "the definition of a motion for post-conviction relief set forth in R.C. 2953.21(A) (1), because it is a motion that was (1) filed subsequent to Reynolds's direct appeal, (2) claimed a denial of constitutional rights, (3) sought to render the judgment void, and (4) asked for vacation of the judgment and sentence." Pursuant to Reynolds, we find Downey's Petition to Vacate or set aside Judgment of Conviction or Sentence filed by him on July 12, 2013 is a petition for post conviction relief as defined in R.C. 2953.21.
{¶17} Post conviction efforts to vacate a criminal conviction or sentence on constitutional grounds are governed by R.C. 2953.21, which provides:
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