State v. Jones
| Decision Date | 28 April 2015 |
| Docket Number | CASE NO. 14 MA 46 |
| Citation | 2015 Ohio 1707 |
| Parties | STATE OF OHIO, PLAINTIFF-APPELLEE, v. AARON L. JONES, DEFENDANT-APPELLANT. |
| Court | Ohio Court of Appeals |
For Plaintiff-Appellee:
Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant:
Aaron L. Jones
Grafton Correctional Institution
2500 S. Avon-Belden Rd.
Hon. Carol Ann Robb
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
{¶1} Defendant-appellant Aaron L. Jones ("Appellant") appeals the decision of the Mahoning County Common Pleas Court denying his request for leave to file a delayed Crim.R. 33 motion for a new trial based on newly discovered evidence, his motion for resentencing, and his motion for trial and sentencing transcripts. The trial court did not abuse its discretion in denying the request for leave to file a delayed Crim.R. 33 motion for a new trial. The evidence Appellant contends is newly discovered does not warrant the granting of the request and the request was not made within a reasonable time of allegedly discovering the evidence. As for the resentencing motion, Appellant does not indicate why the motion is filed untimely. However, even if it was timely, it is barred by res judicata because the issue was previously raised in the direct appeal. Lastly, as to the motion for trial and sentencing transcripts, in a prior appeal we explained that an indigent's right to a transcript of proceedings is for use in a direct appeal after conviction, not for the circumstances presented here. For those reasons and the ones expressed below, the trial court's decision is hereby affirmed.
{¶2} On May 25, 2006, Appellant was convicted by a jury of aggravated burglary, in violation of R.C. 2911.11(A)(1)(B), a first-degree felony; and aggravated robbery, a violation of R.C. 2911.01(A)(1)(C), a first-degree felony. He received an aggregate sentence of twenty years; ten years for each crime. Those sentences were ordered to be served consecutively. 7/24/06 J.E.
{¶3} Appellant appealed his conviction and sentence to this court. He argued the evidence was insufficient to support the convictions, the convictions were against the manifest weight of the evidence, the trial court failed to render curative instructions after defense objections, his speedy trial rights were violated, sentencing issues, and fifteen allegations of ineffective assistance of counsel. We found no merit with his arguments and affirmed the convictions and sentences. State v. Jones, 7th Dist. No. 06MA109, 2008-Ohio-1541 (Jones I). Appellant did not timely appeal our decision to the Ohio Supreme Court. Instead, he filed a motion for leave to file adelayed appeal, which was denied. State v. Jones, 120 Ohio St.3d 1414, 2008-Ohio-6166, 897 N.E.2d 650.
{¶4} Appellant has filed multiple postconviction pleadings. The first occurred while the direct appeal was pending. On January 5, 2007, he filed a motion titled Petition to Vacate or Set Aside Sentence asserting there was insufficient evidence to sustain the conviction and his speedy trial rights were violated. 1/5/07 Petition. On March 27, 2008, after this court affirmed his conviction in the direct appeal, Appellant filed a motion to have a new trial. 3/18/08 Motion. The trial court immediately overruled the motion. 3/31/08 J.E. The decision was not appealed to this court.
{¶5} Appellant then filed a postconviction petition to set aside or vacate judgment of conviction or sentence. 7/23/08 Petition. He claimed his speedy trial rights were violated and trial counsel was ineffective, which appears to be a claim that there was not sufficient evidence to support the conviction. 7/23/08 Petition. Approximately two weeks after filing that petition, he filed a second identical petition. 8/06/08 Petition.
{¶6} The same day the second identical petition was filed, the trial court overruled the July 23, 2008 petition (the first petition). 8/6/08 J.E. He did not appeal that decision.
{¶7} On February 25, 2009, Appellant filed a Motion for Acquittal. 2/25/09 Motion. This motion contended that there was insufficient evidence to support the conviction. On March 10, 2009, the trial court overruled the motion. He did not appeal that decision.
{¶8} On November 18, 2009 Appellant filed a Motion to Void Judgment. On December 28, 2009, he filed a Motion to Vacate Void Judgment and Sentence. This motion asserted that the indictment was defective. On January 7, 2010 he filed a successive postconviction petition to set aside or vacate judgment of conviction or sentence. 1/7/10 Petition. This postconviction petition reasserted the claim in a prior postconviction petition that trial counsel was ineffective. This petition, however, raised a new claim that the indictment was defective.
{¶9} On February 5, 2010, the trial court overruled all three filings. Appellant appealed those decisions. 3/16/10 Notice of Appeal. He argued trial counsel was ineffective and the trial court erred when it ordered him to serve maximum consecutive sentences. State v. Jones, 7th Dist. No. 10MA47, 2011-Ohio-1002, ¶ 7, 8 (Jones II). We found no merit with the assigned errors and affirmed the trial court's decision. Id. at ¶ 17. There were three bases for our decision. First, we explained that the issues raised were addressed in the direct appeal. Id. at ¶ 10. Second, we noted that most of the arguments made in the appeal were not made in the petition and therefore, could not be raised for the first time on appeal. Id. at ¶ 11. Lastly, we opined that Appellant's petition was untimely and successive. Id. at ¶ 12. We explained a trial court is without jurisdiction to entertain an untimely or successive petition unless R.C. 2953.23(A)(1) or (2) applies and since Appellant did not show either, the trial court was without jurisdiction to consider the petition. Id. at ¶ 12-16.
{¶10} He appealed that decision to the Ohio Supreme Court; however, it was not accepted for review. State v. Jones, 129 Ohio St.3d 1411, 2011-Ohio-3244, 949 N.E.2d 1005.
{¶11} On December 5, 2011, Appellant filed a motion to Correct Judgment and/or Vacate and Resentence Pursuant to Enacted H.B. 86. He asserted H.B. 86 reenacted all provisions that were rendered unconstitutional and severed by State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. This motion was overruled on April 9, 2013.
{¶12} Appellant timely appealed that decision. State v. Jones, 7th Dist. No. 13MA53, 2014-Ohio-2592 (Jones III). He raised three assignments of error. In the first assignment of error he attempted to resurrect his sufficiency claim and his ineffective assistance of counsel claim. We found no merit with this assignment based on the language in Jones II. Id. at ¶ 10. In his second and third assignments of error he argued that H.B. 86 reenacted the felony sentencing statute provisions that were rendered unconstitutional and severed pursuant to the Ohio Supreme Court's decision in Foster. We found no merit with this argument for two reasons. First, the petition is an untimely and successive petition and Appellant did not providea basis under R.C. 2953.21(A)(1) or (2) to invoke the trial court's jurisdiction to entertain an untimely and successive petition. Id. at ¶ 14-16. Secondly, we explained that even if his petition was timely, he would still not be entitled to resentencing because he was sentenced prior to the enactment of H.B. 86 and H.B. 86 does not apply retroactively. Id. at ¶ 19, citing State v. Williams, 7th Dist. No. 11MA131, 2012-Ohio-6277, ¶ 62. Therefore, we affirmed the trial court's decision to deny the postconviction petition.
{¶13} That decision was not appealed to the Ohio Supreme Court.
{¶14} This leads us to the three postconviction motions that are now before us. The first motion is Appellant's January 3, 2013 motion for resentencing. In this motion he argues that pursuant to Foster he could not be sentenced to a maximum consecutive sentence.
{¶15} The second motion is the March 4, 2013 request for trial and sentencing transcripts at state's expense. In this motion Appellant requests a copy of the transcripts from his 2006 trial and sentencing.
{¶16} The third motion is his request for leave to file a delayed motion for new trial pursuant to Crim.R. 33. 3/4/13 Motion. In this motion he asserts that there is newly discovered evidence and therefore, the trial court should consider his delayed motion for a new trial.
{¶17} All three motions were overruled on April 4, 2014.
{¶18} Appellant filed two notices of appeal. The first notice of appeal, filed April 16, 2014, was specifically from the denial of the request for trial and sentencing transcripts. State v. Jones, 7th Dist. No. 14MA44 (Jones IV). The second notice of appeal was filed on April 22, 2014. In that notice Appellant appealed all three April 4, 2014 judgments (which would include the denial of the request for transcripts). On May 16, 2014 we sua sponte dismissed Jones IV. We explained that the denial of the request for transcripts is part of a group of three judgment entries appealed in 14MA46, the instant appeal. We also indicated the order is not a final appealable order, Appellant did not have pending in the trial court any action to warrant review ofthe trial transcripts, and an indigent's right to a transcript is for use in a direct appeal, not for the circumstances presented here. Jones IV 5/16/14 J.E.
{¶19} In Jones I we set forth the facts of the case as follows. Jones I, 2008-Ohio-1541, at ¶ 2-12. On January 12, 2006, Felicia Rodriguez reported that Appellant, her former boyfriend, broke into her house with his cousin while she was sleeping and threatened her with a...
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