State v. Sowards, Case No. 18CA2

• Decision Date: 03 October 2018
• Docket Number: Case No. 18CA2
• Parties: STATE OF OHIO, Plaintiff-Appellee, v. WILLIAM S. SOWARDS, Defendant-Appellant.
• Court: Ohio Court of Appeals

2018 Ohio 4173

STATE OF OHIO, Plaintiff-Appellee, v. WILLIAM S. SOWARDS, Defendant-Appellant.

Case No. 18CA2

COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT GALLIA COUNTY

October 3, 2018

DECISION AND JUDGMENT ENTRY

APPEARANCES:

Kerry M. Donahue, Dublin, Ohio, for Appellant.

Jason Holdren, Gallia County Prosecuting Attorney, and Jeremy Fisher, Gallia County Assistant Prosecuting Attorney, Gallipolis, Ohio.

CRIMINAL CASE FROM COMMON PLEAS COURT

ABELE, J.

{¶ 1} This is an appeal from a Gallia County Common Pleas Court judgment that denied a petition for postconviction relief filed by William S. Sowards, defendant below and appellant herein. Appellant assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR:

"IT WAS ERROR FOR THE LOWER COURT TO DENY THE PETITION FOR POST CONVICTION RELIEF."

SECOND ASSIGNMENT OF ERROR:

"IT WAS ERROR FOR THE COURT TO REFUSE, DESP[I]TE SPECIFIC REQUESTS, TO MAKE FINDINGS OF FACT AND CONCLUSIONS OF LAW."

THIRD ASSIGNMENT OF ERROR:

"IT WAS ERROR FOR THE COURT TO FAIL TO SET A HEARING, DESPITE REQUEST ON THE POST CONVICTION RELIEF MOTION AND/OR ERROR TO EXECUTE ON A 12 YEAR OLD SENTENCE WITHOUT A NEW SENTENCING HEARING CONSIDERING ALL THE CHANGE IN CIRCUMSTANCES."

FOURTH ASSIGNMENT OF ERROR:

"DEFEN[D]ANT'S SENTENCE IS PROPERLY FOR A MINOR MISDEMEANOR POSSESSION OF MARIJUANA SO THE SENTENCE EXCEEDS THE ALLOWABLE LAWFUL SENTENCE BY 8 YEARS AND IS THUS VOID ABINITIO [SIC]. DEFENDANT'S CONSTITUTIONAL RIGHTS HAVE BEEN SEVERLY [SIC] VIOLATED."

{¶ 2} In October 2006, a jury found appellant guilty of possession of drugs in violation of R.C. 2925.11(A).¹ The verdict form did not, however, specify the degree of the offense or any other additional elements. Instead, the verdict form stated that the jury found appellant "Guilty of Possession of Drugs in a manner and form as he stands charged in the Indictment." The verdict form also contained the caption, "COUNT ONE POSSESSION OF DRUGS." Count one of the indictment charged appellant with possession of marijuana "in an amount exceeding twenty thousand grams" and further indicated the offense is a second-degree felony.Appellant did not object to the verdict form, and the trial court subsequently sentenced appellant to serve eight years in prison.

{¶ 3} Appellant appealed his conviction and asserted that the trial court erred by denying his motion to suppress evidence. He did not raise any argument concerning the verdict form. We affirmed the trial court's judgment. State v. Sowards, 4^th Dist. Gallia No. 06CA13, 2007-Ohio-4863 (Sowards I).

{¶ 4} Appellant appealed our decision to the Ohio Supreme Court, and the court declined to hear the appeal. State v. Sowards, 116 Ohio St.3d 1508, 2008-Ohio-381, 880 N.E.2d 484 (Sowards II). He then appealed to the United States Supreme Court, which also declined to hear the appeal. Sowards v. State, 555 U.S. 816, 129 S.Ct. 69, 172 L.Ed.2d 26 (2008) (Sowards III).

{¶ 5} In 2008, appellant filed a motion to vacate his sentence. He asserted that the verdict form's failure to comply with R.C. 2945.75(A)(2),² as explained in State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735,³ meant that the court could only impose asentence for a minor misdemeanor. The trial court denied appellant's motion, and we affirmed the trial court's judgment. State v. Sowards, 4^th Dist. Gallia No. 09CA8, 2011-Ohio-1660 (Sowards IV).

{¶ 6} The Ohio Supreme Court declined to hear the appeal and further denied appellant's motion to reconsider its decision declining to hear the appeal. State v. Sowards, 129 Ohio St.3d 1475, 2011-Ohio-4751, 953 N.E.2d 842, and 130 Ohio St.3d 1441, 2011-Ohio-5883, 957 N.E.2d 301 (Sowards V).

{¶ 7} Appellant subsequently filed a petition for a writ of habeas corpus in the United States District Court for the Southern District. His petition mirrored the arguments he raised in his 2008 petition to vacate his sentence. The court denied his petition. Sowards v. Attorney General of Ohio, S.D. Ohio No. 2:11-CV-954 (Apr. 19, 2012) (magistrate report and recommendation), and Sowards v. Attorney General of Ohio, S.D. Ohio No. 2:11-CV-954 (Sept. 13, 2012) (adopting magistrate's report and recommendation) (Sowards VI).

{¶ 8} In May 2012, appellant filed an App.R. 26(B) application to reopen his appeal and asserted that appellate counsel performed ineffectively by failing to file a supplemental brief on direct appeal that raised the defective-verdict-form issue. Appellant contended that if appellate counsel had argued that Pelfrey and R.C. 2945.75 precluded the trial court from imposing an eight-year prison sentence for a second-degree felony, the outcome of his appeal would have been different. We subsequently granted appellant's application to reopen his appeal. (Sowards VII). We did not, however, agree with appellant that the outcome of his appeal would have been different if appellate counsel had filed a supplemental brief addressing Pelfrey. Instead, we relied upon the Ohio Supreme Court's 2012 decision in State v. Eafford, 132 Ohio St.3d 159, 2012-Ohio-2224, 970 N.E.2d 891, and determined that, although appellant's verdict form arguably did not strictly comply with R.C. 2945.75, Eafford created an exception to-or modified-the Pelfrey rule. We concluded that under Eafford, a verdict form is not defective when it includes language specifically referring to the indictment. ⁴ We pointed out that appellant's verdict form specifically indicated that the jury found him guilty "as he stands charged in the Indictment." We thus determined that the result of appellant's direct appeal would not have been different if appellate counsel had raised Pelfrey.

{¶ 9} Appellant subsequently requested us to reconsider our decision and claimed that we misapplied Eafford and that Eafford is distinguishable. Appellant further asserted thatupholding a verdict form that fails to contain enhancing elements violates his constitutional right to a jury trial. Appellant additionally argued that, because Eafford had not been decided while his original appeal was pending, we would have relied upon Pelfrey and would have vacated his eight-year prison sentence. We denied appellant's application to reconsider. Sowards VIII.

{¶ 10} Appellant also filed a motion to certify a conflict. He claimed that our decision on reopening conflicted with cases from the Third, Eighth, and Ninth District Court of Appeals. We denied appellant's motion to certify a conflict. Sowards IX.

{¶ 11} Appellant appealed our decision on reopening to the Ohio Supreme Court. On December 24, 2013, the court accepted appellant's appeal and reversed and remanded our decision "for application of State v. McDonald, [137] Ohio St.3d [517], 2013-Ohio-5042, ."⁵ State v. Sowards, 137 Ohio St.3d 1440, 2013-Ohio-5678, 999 N.E.2d 695 (Sowards X).

{¶ 12} On October 3, 2014, we issued our decision pursuant to the Ohio Supreme Court's remand, State v. Sowards, 4^th Dist. Gallia No. 06CA13 (Oct. 10, 2014) (webcite unavailable) (Sowards XI), and determined that McDonald is distinguishable and Eafford controlling. We thus continued to adhere to our conclusion that appellant's eight-year prison sentence is valid.

{¶ 13} Appellant appealed our decision after remand to the Ohio Supreme Court. The court declined to hear the appeal and also rejected appellant's motion to reconsider. State v.Sowards, 142 Ohio St.3d 1449, 2015-Ohio-1591, 29 N.E.3d 1004, and 143 Ohio St.3d 1407, 2015-Ohio-2747, 34 N.E.3d 134 (Sowards XII).

{¶ 14} Appellant additionally requested that we certify a conflict between our decision after remand and various other Ohio appellate court decisions. We denied his motion as untimely. State v. Sowards, 4^th Dist. Gallia No. 06CA13 (Oct. 22, 2015) (webcite unavailable) (Sowards XIII). Appellant appealed this decision to the Ohio Supreme Court, and the court declined to hear the appeal. State v. Sowards, 143 Ohio St.3d 1408, 2016-Ohio-899, 46 N.E.3d 702 (Sowards XIV).

{¶ 15} On August 31, 2017, appellant filed a second App.R. 26(B) application to reopen his appeal. Appellant, in essence, raised the same argument that he has been raising since his 2008 motion to vacate sentence: that the verdict form fails to comply with R.C. 2945.75 and Pelfrey, and that his eight-year prison sentence is therefore invalid.

{¶ 16} We denied appellant's second application to reopen. State v. Sowards, Fourth Dist. Gallia 06CA13 (Nov. 18, 2017) (webcite unavailable) (Sowards XV). We explained:

First and foremost, nowhere in his application does [appellant] argue ineffective assistance of appellate counsel. Rather, he claims that we wrongly relied upon Eafford when we should have found Pelfrey and McDonald controlling. He asserts that if we had correctly applied Pelfrey and McDonald, we would have concluded that his eight-year prison sentence is invalid. Appellant's application does not raise any new issues whatsoever or any issue of appellate counsel's ineffectiveness. Instead, he simply rehashes the same basic argument he has been raising since 2008.

Second, "[n]either App.R. 26(B) nor State v. Murnahan (1992), 63 Ohio St.3d 60, 584 N.E.2d 1204, provides for second and subsequent applications for reopening." State v. Richardson, 74 Ohio St.3d 235, 236, 658 N.E.2d 273 (1996); see State v. Williams, 99 Ohio St.3d 179, 2003-Ohio-3079, 790 N.E.2d 299, ¶10, quoting State v. Cheren, 73 Ohio St.3d 137, 138, 652 N.E.2d 707 (1995) ("'Once ineffective assistance of [appellate] counsel has been raised and adjudicated, res judicata bars its relitigation.'"). App.R. 26(B) is not "an open invitation for persons sentenced to long periods of incarceration to concoct new theories of ineffective assistance of appellate counsel in order to have a new round of appeals." State v. Reddick, 72 Ohio St.3d 88, 90-91, 647 N.E.2d 784 (1995).

Third, we have considered the issue appellant raises multiple times. Thus, res judicata bars further litigation of the issue. The doctrine of res judicata generally states that "a final

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