State v. Reynolds, 96-229

• Decision Date: 25 June 1997
• Docket Number: No. 96-229,96-229
• Citation: 79 Ohio St.3d 158,679 N.E.2d 1131
• Parties: The STATE of Ohio, Appellant, v. REYNOLDS, Appellee.
• Court: Ohio Supreme Court

Page 158

79 Ohio St.3d 158

679 N.E.2d 1131

The STATE of Ohio, Appellant, v. REYNOLDS, Appellee.

No. 96-229.

Supreme Court of Ohio.

Submitted March 19, 1997.

Decided June 25, 1997.

SYLLABUS BY THE COURT

Where a criminal defendant, subsequent to his or her direct appeal, files a motion seeking vacation or correction of his or her sentence on the basis that his or her constitutional rights have been violated, such a motion is a petition for postconviction relief as defined in R.C. 2953.21.

On June 26, 1986, appellant Larry Reynolds was convicted of aggravated robbery with a firearm specification. Reynolds was sentenced to not less than ten years nor more than twenty-five years for the aggravated robbery. He was sentenced to an additional three years for the firearm specification, which was to be served consecutively with the sentence for aggravated robbery.

Reynolds appealed his conviction. On June 26, 1987, Reynolds's conviction was overturned and he was awarded a new trial. At his retrial, on May 26, 1988, Reynolds was again convicted of aggravated robbery with a firearm specification.

Reynolds appealed his conviction again. On September 29, 1989, the court of appeals affirmed Reynolds's conviction.

On August 23, 1993, pursuant to App.R. 26(B), Reynolds filed to reopen his appeal, alleging insufficient evidence as to the firearm specification and ineffective assistance of counsel. Reynolds argued that there was insufficient evidence to prove that the firearm that he allegedly used in the aggravated robbery was operable and that his counsel was ineffective for failing to raise this issue. Reynolds based his arguments on State v. Murphy (1990), 49 Ohio St.3d 206, 551 N.E.2d 932 (state must prove operability of firearm for purpose of satisfying firearm specification), and State v. Gaines (1989), 46 Ohio St.3d 65, 545 N.E.2d 68 (operability of firearm may be proven by circumstantial evidence).

The appellate court held that Reynolds's counsel was not ineffective for failing to anticipate the holdings in Gaines and Murphy. ¹ Accordingly, the appellate court denied Reynolds's request to reopen his appeal.

However, in dicta, the appellate court stated that the holdings in Gaines and Murphy were to be applied retroactively, but found that there was no evidence to support the conviction for a firearm specification. Nevertheless, the court of appeals did not order any remand or reversal.

Based on the appellate court's dicta on the retroactive application of the holdings in Gaines and Murphy, Reynolds filed a "Motion to Correct or Vacate Sentence" with the trial court, asserting that the state failed to prove the firearm that he allegedly used in the aggravated robbery was operable beyond a reasonable doubt, thereby mandating vacation of the sentence for the firearm specification. The trial court granted the motion and vacated the conviction and sentence for the firearm specification.

The state appealed the trial court's ruling. The court of appeals affirmed the trial court's decision that vacated Reynolds's sentence for the firearm specification.

The cause is now before this court upon the allowance of a discretionary appeal.

Kevin J. Baxter, Erie County Prosecuting Attorney, and Mary Ann Barylski, Assistant Prosecuting Attorney, for appellant.

David H. Bodiker, Ohio Public Defender, Timi J. Townsend, Assistant Public Defender for appellee.

LUNDBERG STRATTON, Justice.

The state asserts several propositions of law in support of the premise that Reynolds is barred from arguing that there was insufficient evidence that the firearm allegedly used in the robbery was operable. In particular, the state alleges that Reynolds's Motion to Correct or Vacate Sentence for a firearm specification was a motion for postconviction relief which was barred by res judicata because Reynolds failed to raise the issue of the operability of the gun at trial or in his direct appeal. We find the state's argument persuasive, and for the following reasons, we reverse the judgment of the court of appeals.

A petition for postconviction relief, R.C. 2953.21(A)(1), is filed subsequent to the direct appeal of the conviction. R.C. 2953.21(A)(2). R.C. 2953.21(A)(1) defines the criteria under which postconviction relief may be sought:

"Any person who has been convicted of a criminal offense * * * and who claims that there was such a denial or infringement of the person's rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States may file a petition in the court that imposed the sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence * * *."

Under this definition, where a criminal defendant, subsequent to his or her direct appeal, files a motion seeking vacation or correction of his or her sentence on the basis that his or her constitutional rights have been violated, such a motion is a petition for postconviction relief as defined in R.C. 2953.21.

In the case at bar, Reynolds, subsequent to the affirmance of his conviction, filed a Motion to Correct or Vacate Sentence with the trial court, seeking to vacate his sentence for a gun specification because the state allegedly did not prove that the firearm used in the robbery was operable beyond a reasonable doubt under Gaines and Murphy as retroactively applied. Accordingly, Reynolds alleged that his sentence for the firearm specification was illegal or otherwise constitutionally repugnant and should be vacated.

Reynolds's Motion to Correct or Vacate Sentence, despite its caption, meets the definition of a motion for postconviction 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.

Accordingly, we find that Reynolds's Motion to Correct or Vacate Sentence is a petition for postconviction relief as defined in R.C. 2953.21.

Because Reynolds's motion was a petition for postconviction relief, we also find that it is barred by res judicata. In State v. Perry (1967), 10 Ohio St.2d 175, 39 O.O.2d 189, 226 N.E.2d 104, at the syllabus, we held:

"Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at trial, which resulted in that judgment of conviction, or on an appeal from that judgment." (Emphasis added.)

It is established that, pursuant to res judicata, a defendant cannot raise an issue in a motion for postconviction relief if he or she could have raised the issue on direct appeal. State v. Duling (1970), 21 Ohio St.2d 13, 50 O.O.2d 40, 254 N.E.2d 670.

Reynolds claims that controlling law in the Sixth Appellate District, at the time of his direct appeal, was that a firearm specification required no independent evidence of operability of the firearm beyond the evidence required to establish the use of a deadly weapon to prove aggravated robbery. State v. Vasquez (1984), 18 Ohio App.3d 92, 18 OBR 455, 481 N.E.2d 640. Reynolds claims the fact that Vasquez was later overturned by this court in Gaines precludes the application of res judicata to a postconviction motion seeking application of Gaines. Reynolds reasons that the Vasquez decision was controlling, unless and until reversed by a court of competent jurisdiction; since Vasquez was not reversed until after...