Petition for Writ of Certiorari — Lawrence E. Wilson, Petitioner v. Ohio

APPENDIX

APPENDIX-A, DECISION OF THE STATE COURT OF APPEALS

Court of Appeals, Montgomery County, Ohio

Second Appellate District, Case No. 27481,

Rendered November 9, 2017

APPENDIX-B, DECISION OF THE STATE TRIAL COURT

Common Pleas Court of Montgomery County, Ohio

Case No. 1996-CR-01019, Filed January 25, 2017

APPENDIX-C, DECISION OF THE STATE SUPREME COURT

Ohio Supreme Court, Case No. 2017-1727

Jurisdiction not accepted, filed April 25, 2018

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IN THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

MONTGOMERY COUNTY

STATE OF OHIO

Plaintiff-Appellee

Appellate Case No. 27481

V.

Trial Court Case No. 1996-CR-1019

LAWRENCE E. WILSON

(Criminal Appeal from

Common Pleas Court)

Defendant-Appellant

(\ D I M I n N.I

Rendered on the 9th day of November, 2017.

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0,069384, Assistant

Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division,

Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422

Attorney for Plaintiff-Appellee

LAWRENCE E. WILSON, Inmate No. A349-229, Franklin Medical Center, P.O. Box

23658, Columbus, Ohio 43223

Defendant-Appellant-Pro Se

A

TUCKER, J.

THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

~ ~t K, - PA

{J 1) Defendant-appellant Lawrence, Wilson appeals from a decision of the

Montgomery County Court of Common Pleas denying his motion to vacate judgment and

request for Grand Jury testimony. For the following reasons, we affirm.

I. Facts and Procedural History

{5[ 2} In 1997, Wilson was convicted of rape of a person under thirteen years of

age. Following Wilson's direct appeal, we affirmed the conviction and sentence. State

v. Wilson, 2d Dist. Montgomery Nos. 16728, 16752, 1998 WL 639100, * 1 (Aug. 7, 1998).

Since then, Wilson has repeatedly sought review of his conviction and sentence with this

court, the Fourth District Court of Appeals, the Ohio Supreme Court, and the federal

courts to review his conviction.' He has used various procedural mechanisms including

a request for reconsideration, numerous petitions for post-conviction relief, and petitions

for extraordinary writs of mandamus, procedendo and habeas corpus.

See State v.

Wilson, 2d Dist. Montgomery No. 17515, 1999 WL 173551 (Mar. 31, 1999); State ex rel.

Wilson v. Sunderland, 87 Ohio St.3d 548, 2000-Ohio-479,721 N.E.2d 1055 (2000); State

v. Wilson, 2d Dist. Montgomery No. 21738, 2007-Ohio-4885, appeal not accepted for

review, 117 Ohio St.3d 1405, 2008-Ohio-565, 881 N.E.2d 274 (Table); State v. Wilson,

2d Dist, Montgomery No. 23247, 2009-Ohio-7035; State v. Wilson, 2d Dist. Montgomery

No, 24352, 201 1-Ohio-599. None of these actions have been successful.

{[ 3} Wilson, turning to the instant appeal, filed a motion on December 16, 2016,

to vacate his judgment and sentence in which he argues that his sentence is void because

Wilson has served part of his prison sentence in the P.ickaway Correctional Institution

which is within the jurisdiction of the Fourth District.

THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

(1) he was improperly and excessively sentenced; (2) the trial court improperly entered a

nunc pro tunc order amending the original termination entry and adding an additional two

years to his sentence; (3) the trial court violated Crim.R. 43(A) by resentencing him via

the nunc pro tunc entry without having him present; (4) the guilty verdict did not state the

degree of the offense; (5) the indictment was defective; (6) the trial court did not give an

instruction on a lesser included, offense; (7) the victim recanted; (8) his waiver of counsel

was invalid and trial counsel was ineffective; and (9) he was not permitted to allocute at

sentencing.

{j 4) Additionally, on December 23, 2016, Wilson filed a request for Grand Jury

transcripts. He argued that the indictment was defective because it did, not name or

identify the offense for which the Grand Jury indicted him. He further contends that the

victim later recanted her testimony at trial, and thus, he is entitled to view her testimony

before the Grand Jury.

{J 5) The trial court, citing the doctrine of res judicata, overruled the motion to

vacate and denied the request for transcripts by entry filed January 25, 2017. Wilson

filed a timely appeal.

II. Claims Barred by Res Judicata

(1I 6) Wilson's first, second, third and fourth assignments of error state as follows:

DID THE TRIAL COURT ERR IN DENYING DEFENDANTAPPELLANT'S MOTION TO VACATE THE VOID JUDGMENT AND

SENTENCE?

DID THE TRIAL COURT ERR BY FAILING TO HOLD A HEARING

THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

PURSUANT TO CRIM.R. 43(A) WHEN IT CORRECTED THE JUDGMENT

ENTRY'S [SIC] WITHOUT DEFENDANT-APPELLANT BEING PRESENT?

DID THE TRIAL COURT ERR WHEN THE WAIVER OF COUNSEL

WAS NOT MADE IN WRITING AND FILED WITH THE COURT?

DOES THE SAME PARTICULARIZED NEED ANALYSIS APPLY

TO BOTH TRIAL AND POST-CONVICTION PROCEEDINGS?

7) In these assignments of error, Wilson raises arguments concerning his claim

that the trial court improperly (1) amended the termination entry, (2) violated Crim.R.

43(A) by amending the termination entry outside his presence, (3) denied him the right of

allocution, (4) violated his right to counsel, and (5) erred with regard to his waiver of

counsel and/or improperly denied him his right to counsel. He further claims that the trial

court erred by denying his request for Grand Jury transcripts. Wilson argues that the

transcripts are necessary to help him prove that the indictment was deficient.

Specifically, he claims that the indictment did not specify the name of the offense, the

specific facts concerning the offense, nor the degree of the offense. He also. claims that

he needs the transcripts because the victim, who he claims later recanted her testimony

at trial, also lied to the Grand Jury.

( 8) In State v. DeVaughns, 2017-Ohio-475,

N.E.3d_ (2d Dist.), this court

discussed petitions for post-conviction relief:

Petitions for post-conviction relief are governed by R.C. 2953.21

through R.C. 2953.23. Under these statutes, any defendant who has been

convicted of a criminal offense and who claims to have experienced a denial

or infringement of his or her constitutional rights (federal or Ohio) may

THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

11

petition the trial court to vacate or set aside the judgment and sentence.

R.C. 2953.21(A). A post-conviction proceeding is not an appeal of a

criminal conviction; it is a collateral civil attack on the judgment. State v.

Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, 1148, citing

State v. Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d 67 (1994); R.C.

2953.21(J). For this reason, a defendant's petition for post-conviction relief

is not a constitutional right; the only rights afforded to a defendant in postconviction proceedings are those specifically granted by the legislature.

Steffen, 70 Ohio St.3d at 410, 639 N.E.2d 67.

Pursuant to R.C. 2953.23(A)(1)(a), a defendant may not file an

untimely or successive petition for post-conviction relief unless (1) he was

unavoidably prevented from discovering the facts upon which he relies to

present his claim, or (2) the United States Supreme Court recognizes a new

federal or state right that applies retroactively to his situation and the petition

asserts a claim based on that right. The petitioner must also show by clear

and convincing evidence that, if not for the constitutional error from which

he suffered, no reasonable factfinder could have found him guilty. R.C.

2953.23(A)(1)(b).

Id. at 11 24-26.

{11 9) Further, "[u]nder the doctrine of res judicata, '[a] point or a fact which was

actually and directly in issue in a former action and was there passed upon and

determined by a court of competent jurisdiction may not be drawn in question in any future

THE COURT OF APPEALS OF OHIO

SECOND APPEL'LATE DISTRICT

action between the same parties or their privies, whether the cause of action in the two

actions be identical - or different.' Norwood v. McDonald (1943), 142 Ohio St. 299,

paragraph three of the syllabus. 'The law-of-the-case doctrine holds that the decision of

the reviewing court in a case remains the law of that case on the questions of law involved

for all subsequent proceedings at the trial and appellate levels.' Nolan v. Nolan (1984),

11 Ohio St .3d 1." State v. Wilson, 2d Dist. Montgomery No. 24352, 2011-Ohio-5990,

¶11, quoting State v. Ulery, 2d Dist. Clark No. 2010 CA 89, 2011—Ohio--4549, 12.

{ 10) In this case, all of the arguments raised by Wilson have been previously

raised and rejected. In fact, some of the arguments have been raised multiple times.

Since we have thoroughly reviewed and resolved these issues in our previous decisions,

these assignments of error are overruled based upon the law of the case doctrine and res

judicata.

It is further concluded, given this resolution, that the trial court also

appropriately overruled Wilson's request for Grand Jury testimony.

Ill. Excessive Sentence Claim is Without Merit and Barred by Res Judicata

{j 11) The fifth assignment of error asserted by Wilson states:

IS THE SENTENCE IMPOSED UPON THE DEFENDANTAPPELLANT BY THE TRIAL COURT EXCESSIVE?

(J 12) Wilson contends that his sentence must be vacated because it is excessive

and disproportionate, and constitutes cruel and unusual punishment.

{J 13) Wilson's argument is, at best, convoluted, but he seems to assert that his

sentence is excessive and disproportionate based upon his belief that he was merely

"convicted of a single count of an allegation of engaging in cunnilingus with [a ten year

THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

4

old]," yet received a sentence of nine to twenty-five years in prison. Wilson, from this,

seems to believe that the rape charge should have been amended to a lesser charge of

sexual battery or gross sexual imposition. Wilson has included nine pages of case notes

in the appendix to his appellate brief. Wilson asserts that these cases demonstrate that

his sentence is excessive and disproportionate to others who engaged in the same

conduct but were convicted of a lesser offense. He claims, from this, that his sentence

is cruel and unusual in violation of the Eighth Amendment to the United States'

Constitution.

(j14) We find this argument unavailing. Wilson was convicted of rape because

the jury believed the testimony provided by the victim that Wilson had inserted his tongue

into her vagina .2 Given that there was credible evidence that Wilson did penetrate the

victim's vagina, there was no requirement that the charge be amended to a lesser

included offense. The cases supplied by Wilson indicate that his sentence is entirely in

line with the sentences meted out to other offenders convicted of rape. Ohio courts have

recognized that sentences falling within the range permitted by statute, as is the case with

Wilson's sentence, do not constitute cruel and unusual punishment.

McDougle v.

Maxwell, 1 Ohio St.2d 68, 69, 203 N.E.2d 334 (1964); State v. Hilbert, 2d Dist. Miami No.

2013 CA 2, 2013-Ohio-4728, ¶ 5.

{1! 15) Finally, this argument could have been, but was not, raised on direct appeal.

Thus, it is barred by the doctrine of res judicata. Accordingly, the fifth assignment of

error is overruled.

Wilson thinks that the jury erred because his testimony that he merely used his tongue

to taste a substance he observed between her vagina and anus proves that there was no

penetration.

2

THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

IV. Conclusion

(f 16) All of Wilson's assignments of error being overruled, the judgment of the

trial court is affirmed.

HALL, P.J. and DONOVAN, J., concur.

Copies mailed to:

Mathias H. Heck, Jr.

Andrew T. French

Lawrence E. Wilson

Hon. Richard Skelton

THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

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IN THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

MONTGOMERY COUNTY

STATE OF OHIO

Plaintiff-Appellee

Appellate Case No. 27481

V.

Trial Court Case No. 1996-CR-1019

LAWRENCE E. WILSON

FINAL ENTRY

Defendant-Appellant

Pursuant to the opinion of this court rendered on the

of

November

9th

day

2017, the judgment of the trial court is Affirmed.

Costs to be paid as stated in App.R. 24.

Pursuant to Ohio App.R. 30(A), it is hereby ordered that the clerk of the

Montgomery County Court of Appeals shall immediately serve notice of this judgment

upon all parties and make a note in the docket of the mailing

4 iX

C

MI HAE(L

. HALL, Presiding Jud

DON4NAN, Judge

Ic'HAEL'L TUCKER, Judge

THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

Copies mailed to:

Mathias H. Heck, Jr.

Andrew T. French

Montgomery County Prosecutor's Office

301 W. Third Street

Dayton, OH 45422

Lawrence E. Wilson

Inmate No. A349-229

Franklin Medical Center

P.O. Box 23658

Columbus, OH 43223

Hon. Richard Skelton

Montgomery County Common Pleas Court

41 N. Perry Street

Dayton, OH 45422

THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

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CLERK OF THE COURT OF APPEALS, MONTGOMERY COUNTY 0mb

SECOND APPELLATE DISTRICT

CASE NUMBER: CA 027481

DATE: NOVEMBER 9, 2017

STATE OF OHIO

PRIMARY

VS.

LAWRENCE EARL WILSON

SECONDARY

Ohio Rules of Appellate Procedure

Rule 30A

TO:

ANDREW FRENCH

LAWRENCE E WILSON

Pursuant to Appellate Rule 30A, you are hereby notified that a Final Judgment Entry has been

filed with the Clerk of the Court of Appeals on 11/09/17.

Sincerely,

CONNIE J VILLELLI, Clerk

Prepared by J JOHNSON,

Deputy Clerk of Courts

F

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ELECTRONICALLY FILED

COURT OF COMMON PLEAS

Wednesday, January 25, 2017 10:43:29 AM

CASE NUMBER: 1996 CR 01019 Docket ID: 30472941

GREGORY A BRUSH

CLERK OF COURTS MONTGOMERY COUNTY OHI O

,

IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO

CRIMINAL DIVISION

CASE NO.: 1996 CR01019

STATE OF OHIO,

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Plaintiff(s),

JUDGE RICHARD S. SKELTON

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LAWRENCE EARL WILSON,

Defendant(s).

DECISION AND ENTRY DENYING

DISCOVERY OF GRAND JURY

TRANSCRIPTS AND DENYING MOTION

TO VACATE JUDGMENT

This matter is before the Court on defendant's motion for production of transcripts of the

grand jury proceeding in his case and his motion to vacate the judgment against him. The Court

recently denied defendant's motion for production of public records in this case since the doctrine

of res judicata rendered his alleged claims not judiciable under the public records statute.

Defendant's request for transcripts of the secret proceedings of the grand jury again runs directly

into the same doctrine that favors the finality of judgments. Crim. R. 6(E), Ohio R. Crim. P.,

provides that a trial court may disclose matters occurring before the grand jury only when directed

"preliminarily to or in connection with a judicial proceeding". State v. Pierce, 2d Dist. Montgomery

No. 25199, 2013-Ohio-1372 (Montgomery County April 5, 2013). The disclosure is permitted for

use prior to or during trial. State v. Greer, 66 Ohio St.2d 139, 420 N.E. 2d 982 (1981).

Since the claims defendant asserts that he desires to pursue are barred by resjudicata, he

does not show that the requested discovery is necessary for use in preparation for or during a trial.

The doctrine bars his reasons for seeking to vacate the judgment and prevents discovery of the

secret grand jury proceedings. Accordingly, both motions are denied.

eYcL

SO ORDERED:

JUDGE RICHARD S. SKELTON

This document is electronically filed by using the Clerk of Courts e-Filing system. The

system will post a record of the filing to the e-Filing account "Notifications" tab of the following

case participants:

HOPE SMALLS

ASSISTANT PROSECUTING ATTORNEY

301 WEST THIRD STREET, 5TH FLOOR

P.O. BOX 972

DAYTON, OH 45422

(937)-225-5757

LAWRENCE EARL WILSON

#349229,1800 HARMON AVE.

COLUMBUS, OH 43223

Defendant(s)

CYNTHIA MILLER, Bailiff (937) 225-4368millerc@montcourt.org

General Divison

Montgomery County Common Pleas Court

41 N. Perry Street, Dayton, Ohio 45422

Type:

Entry: (Signed by Judge)

Case Number:

1996 CR 01019

Case Title:

STATE OF OHIO vs LAWRENCE EARL WILSON

So Ordered

.V

Electronically signed by skelton on 2017-01-25 10:43:39 page 3 of 3

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tk $rmi Tourt of QD4ivFII L E D'

APR25 204

CLERK OF COURT

SUPREME, COURT OF OW!

State of Ohio

Case No. 2017-1727

V.

ENTRY

Lawrence E. Wilson

Upon consideration of the jurisdictional memoranda filed in this case, the court

declines to accept jurisdiction of the appeal pursuant to S.Ct.Prac.k. 7.08(B)(4).

(Montgomery County Court of Appeals; No. 2748.1)

Maureen O'Connor

Chief Justice

C

The Official Case Announcement can be found at litti:llwww.supremecourt.ohio.govfROD/docs/

Additional material

from this filing IS

available in the

Clerk's Off ice.