[Cite as State v. Jackson,
2021-Ohio-3115.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 29001
:
v. : Trial Court Case No. 2010-CR-1126
:
DENNIS DEVONE JACKSON : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 10th day of September, 2021.
...........
MATHIAS H. HECK, JR., by JAMIE J. RIZZO, Atty. Reg. No. 0099218, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee
DENNIS DEVONE JACKSON, #A645-759, Southeastern Correctional Institution, 5900
B.I.S. Road, Lancaster, Ohio 43130
Defendant-Appellant, Pro Se
.............
DONOVAN, J.
-2-
{¶ 1} Defendant-appellant Dennis Devone Jackson appeals from orders of the
Montgomery County Court of Common Pleas, which denied his Motion to Correct an
Illegal/Void Sentence and his Motion for New Trial/Motion to Dismiss. Jackson filed
timely notices of appeal on January 5, 2021.
{¶ 2} We set forth the history of the case in State v. Jackson, 2d Dist. Montgomery
No. 24430, 2012-Ohio-2335 ( “Jackson I”) and repeat it herein in pertinent part:
On the night of March 19, 2010, someone entered Unit 4716 in the
Deer Creek apartment complex, shot Antoine West, and robbed him. Two
other people who were in the apartment at the time, Thomas Horn and
Kimberly Carl, were unharmed. Carl was unable to identify the shooter, and
Horn later gave conflicting statements about whether he could identify the
shooter.
An investigation by the Trotwood Police Department led the
detectives to believe that Jackson had been the assailant, that Jackson shot
West with a gun Jackson had borrowed from an acquaintance, Dion Sims,
and that Jackson had taken a large sum of money from West.
Jackson was indicted on the following offenses: murder (as a
proximate result of aggravated burglary); aggravated burglary (deadly
weapon); murder (as a proximate result of aggravated robbery); aggravated
robbery (deadly weapon); murder (as a proximate result of a felonious
assault); felonious assault (deadly weapon); felonious assault (serious
harm); aggravated burglary (physical harm); and aggravated robbery
-3-
(serious harm). The indictment also contained a firearm specification on
each count.
Before trial, Jackson filed a motion to suppress photo identification
evidence and statements he made to the police during the investigation.
After a hearing, his motion to suppress was overruled.
The case was set for trial on August 30, 2010. On that date, however,
the State informed the court that it had been unable to locate Horn, who
was a key witness. The State requested a continuance and asked the court
to issue a material witness warrant for Horn. The trial court granted the
State's request for a continuance, issued a material witness warrant for
Horn, and reset the trial for three weeks later.
The first trial began on September 20, 2010. At that time, the State
still had not located Horn. Jackson requested a mistrial, however, when one
of the State's witnesses, Dion Sims—who, in Jackson's estimation, was an
alternate suspect—revealed during his testimony that he had taken a lie
detector test. Jackson's motion for a mistrial was granted.
Thereafter, Jackson argued to the court that his right not to be placed
in double jeopardy and his right to a speedy trial had been violated, and he
asked that the charges against him be dismissed. The trial court overruled
the motion to dismiss, and a second trial was scheduled for December
2010. Meanwhile, Thomas Horn was located in October 2010 and was
arrested pursuant to the material witness warrant. Horn's deposition was
taken, in accordance with Crim.R. 15, before he was released from custody;
-4-
he was also served with a subpoena for trial before he was released.
Jackson's second trial was held on December 3 and December 6-
10, 2010. Horn did not appear at trial and could not be located by the police.
The trial court declared Horn unavailable, and his deposition was played for
the jury. In his deposition testimony, Horn claimed not to recall the identity
of the shooter, but he admitted and was cross-examined by the State about
prior statements in which he identified Jackson as the shooter.
The State also presented evidence at trial that Sims had loaned a
gun to Jackson on the day of the shooting and that forensic evidence linked
that gun to the shooting. The State offered testimony from a neighbor of the
victim that a man running from the building after the shooting had worn a
multi-colored jacket, testimony and surveillance video showing that Jackson
had worn a similar jacket earlier in the day, and testimony that the victim
had been in possession of a large sum of cash at the time of the shooting.
No cash was found on the victim's body, and his pants' pockets had been
turned inside out. The State also offered evidence to discredit Jackson's
statements to the police about where he had been at the time of the
shooting, including cell phone records and testimony from the people with
whom he claimed to have been.
The defense did not call any witnesses.
The jury found Jackson guilty on all counts.
The trial court merged the counts of murder and felonious assault
into one count of murder, and sentenced Jackson to fifteen years to life for
-5-
that offense. The trial court also merged the two counts of aggravated
burglary and the two counts of aggravated robbery; the court sentenced
Jackson to ten years for aggravated burglary and ten years for aggravated
robbery, to be served concurrently to one another, but consecutively to the
sentence for murder. All of the firearm specifications were also merged, and
Jackson was sentenced to three additional years of actual incarceration on
the firearm specification.
Id. at ¶ 2-13. Jackson’s aggregate sentence was 28 years to life in prison. Id. at ¶ 1.
Jackson appealed his convictions, and we affirmed the judgment of the trial court in
Jackson I. Id. at ¶ 143.
{¶ 3} Several years later, Jackson filed a motion for new trial, a motion to dismiss,
and a supplemental motion to dismiss in December 2017 and January 2018. Later still,
on April 16, 2020, Jackson filed a motion to correct an illegal/void sentence, which he
also later sought to supplement in May 2020. On December 11, 2020, the trial court filed
two separate entries in which it overruled Jackson’s motion to correct an illegal/void
sentence and his motion for new trial/motion to dismiss. In both entries, the trial court
construed Jackson’s motions as petitions for postconviction relief, and it denied the
petitions as untimely and barred by res judicata.
{¶ 4} As previously stated, Jackson filed a timely notice of appeal of the trial court’s
orders. Jackson filed his merit brief on February 19, 2021, and the State filed its
responsive brief on April 30, 2021. On May 10, 2021, Jackson filed a motion requesting
leave to supplement his brief with an additional assignment of error contained in the
motion. On June 9, 2021, we granted Jackson’s motion to supplement his original brief,
-6-
and the State filed its response to Jackson’s additional assignment of error the following
day. On June 24, 2021, Jackson filed a reply to the State’s response to his motion
requesting leave to supplement his brief with an additional assignment of error.
{¶ 5} Jackson’s appeals, pro se. Because they are interrelated, we will discuss
all six of Jackson’s assignments of error together as follows:
DID JUDGE PARKER ERR, AND ABUSE HIS DISCRETION WHEN
HE FOUND APPELLANT’S MOTION TO CORRECT ILLEGAL/VOID
SENTENCE WAS BARRED BY RES JUDICATA?
WAS JUDGE PARKER IN ERR [sic] WHEN HE FOUND THE
LANGUAGE IN R.C. 2929.14(B)(1)(G) DID NOT APPLY AT THE TIME OF
APPELLANT’S SENTENCING HOLDING JUDGE TUCKER THEREFORE
DID NOT ACT WITHOUT AUTHORITY, OR CONTRARY TO LAW WHEN
HE APPLIED R.C. 2929.14(D)(1)(B)?
WAS JUDGE PARKER IN ERR [sic] WHEN HE FOUND THAT TO
LENGTHEN APPELLANT’S SENTENCE AN ADDITIONAL 3 YRS.
(FIREARM SPECIFICATION) WOULD VIOLATE THE EX POST FACTO
CLAUSE?
JUDGE PARKER ABUSED HIS AUTHORITY WHEN HE ALLEGED
APPELLANT MADE CONSTITUTIONAL DUE PROCESS CLAIM IN HIS
MOTION FOR LEAVE TO SUPPLEMENT MOTION TO CORRECT
ILLEGAL / VOID SENTENCE? [sic]
DID TRIAL COUNSEL’S FAILURE TO PROVIDE EFFECTIVE
ASSISTANCE OF COUNSEL AT EVERY STAGE OF TRIAL
-7-
PROCEEDINGS PREVENT AN EFFECTIVE RECORD DURING
APPELLANT’S DIRECT APPEAL FROM CONVICTION ALLOWING HIS
SPEEDY TRIAL RIGHTS PURSUANT [TO] O.R.C. 2945.71-73 FROM
BEING FAIRLY ADDRESSED?
DID THE TRIAL COURT ERR WHEN IT HELD TRIAL JUDGE /
COURT’S UNAUTHORIZE [sic] [AND] UNLAWFUL ACTS OF IMPOSING
SENTENCE OUTSIDE OF OHIO’S STATUTORY MANDATES WERE
VOIDABLE, AND NOT VOID, AND WERE REQUIRED TO BE
CHALLENGE[D] ON DIRECT APPEAL?
{¶ 6} In his first, second, third, and sixth assignments of error, Jackson contends
that the trial court erred when it merged a three-year sentence for a firearm specification
into his aggregate sentence of 28 years to life in prison rather than sentencing him to an
additional three years in prison. In his fourth and fifth assignments of error, Jackson
argues that his speedy trial rights were violated and that he received ineffective
assistance of counsel when his attorney failed to raise the issue prior to his second trial
in 2010.
{¶ 7} Postconviction relief is governed by R.C. 2953.21. The statute provides, in
pertinent part, that:
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 sentence, stating the grounds for relief relied upon, and asking the
-8-
court to vacate or set aside the judgment or sentence or to grant other
appropriate relief. The petitioner may file a supporting affidavit and other
documentary evidence in support of the claim for relief.
R.C. 2953.21(A)(1)(a).
{¶ 8} “A postconviction proceeding is not an appeal of a criminal conviction, but,
rather, a collateral civil attack on the judgment.” State v. Stefen, 70 Ohio St.3d 399, 410,
639 N.E.2d 67 (1994); see also State v. Gondor,
112 Ohio St.3d 377,
2006-Ohio-6679,
860 N.E.2d 77, ¶ 48. To prevail on a petition for postconviction relief, the defendant must
establish a violation of his constitutional rights which renders the judgment of conviction
void or voidable. R.C. 2953.21.
{¶ 9} The postconviction relief statutes do “not expressly mandate a hearing for
every post-conviction relief petition and, therefore, a hearing is not automatically
required.” State v. Jackson, 64 Ohio St.2d 107, 110,
413 N.E.2d 819 (1980). Rather, in
addressing a petition for postconviction relief, a trial court plays a gatekeeping role as to
whether a defendant will receive a hearing. Gondor at ¶ 51. A trial court may dismiss a
petition for postconviction relief without a hearing “where the petition, the supporting
affidavits, the documentary evidence, the files, and the records do not demonstrate that
petitioner set forth sufficient operative facts to establish substantive grounds for relief.”
State v. Calhoun,
86 Ohio St.3d 279,
714 N.E.2d 905 (1999), paragraph two of the
syllabus; Gondor at ¶ 51.
{¶ 10} We review the trial court's denial of a petition for postconviction relief for an
abuse of discretion. Gondor at ¶ 52. An abuse of discretion suggests the trial court's
decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5
-9-
Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 11} Initially, we agree with the trial court that Jackson’s motions were the
functional equivalent of petitions for postconviction relief, which were untimely because
they were not filed within 365 days after the trial transcript was filed with this court in his
direct appeal. See R.C. 2953.21(A)(2). Additionally, none of the statutory exceptions for
filing untimely petitions applied here. See R.C. 2953.23(A).
{¶ 12} The arguments raised in Jackson’s motions established, at most, that his
sentence was voidable. Jackson did not argue that his sentence was not in conformity
with statutorily mandated terms, that it was not provided for by law, or even that it failed
to comply with the formal requirements of R.C. 2941.25. See State v. Parson, 2d Dist.
Montgomery No. 24641, 2012-Ohio-730, ¶ 9. At best, Jackson's sentence was voidable;
thus he was barred by the doctrine of res judicata from challenging his sentence on these
grounds collaterally through his petition for postconviction relief, as he could have raised
the issue regarding the trial court’s failure to sentence him to an additional consecutive
three-year prison term for the second firearm specification in his direct appeal. See State
v. Videen, 2d Dist. Montgomery No. 27479,
2017-Ohio-8608, ¶ 20, citing State v. Russell,
10th Dist. Franklin No. 04AP-1149,
2005-Ohio-4063, ¶ 6-7 (finding res judicata barred
appellant from raising issues in his motion for new trial that could have been raised in his
direct appeal).
{¶ 13} In State v. Reid, 2d Dist. Montgomery No. 25790, 2014-Ohio-1282, we
stated the following:
“Pursuant to the doctrine of res judicata, a valid final judgment on the
merits bars all subsequent actions based on any claim arising out of the
-10-
transaction or occurrence that was the subject matter of the previous
action.” State v. Collins, 2d Dist. Montgomery No. 25612, 2013-Ohio-3645,
¶ 9, citing Grava v. Parkman Twp.,
73 Ohio St.3d 379, 382,
653 N.E.2d 226
(1995). Moreover, “[a]rguments challenging the imposition of a sentence
that is voidable are barred by the doctrine of res judicata if not raised on
direct appeal.” State v. Simons, 2d Dist. Champaign No. 2013 CA 5, 2013-
Ohio-3654, ¶ 42, citing State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-
1197, 884 N.E.2d 568, ¶ 30. (Other citation omitted.) In other words,
“defendants with a voidable sentence are entitled to re-sentencing only
upon a successful challenge on direct appeal.” Id. at ¶ 40, quoting State v.
Payne, 114 Ohio St.3d 502,
2007-Ohio-4642,
873 N.E.2d 306, ¶ 30.
“[A] voidable judgment is one rendered by a court that has both
jurisdiction and authority to act, but the court's judgment is invalid, irregular,
or erroneous.” Id., quoting Simpkins at ¶ 12.
Reid at ¶ 7-8.
{¶ 14} Furthermore, Jackson’s argument with respect to the trial court’s failure to
sentence him to an additional consecutive three-year prison term for the second firearm
specification is without merit because the error, if any, was harmless. Ordinarily, the
court is forbidden from imposing sentence on multiple firearm specifications for “felonies
committed as part of the same act or transaction.” See former R.C. 2929.14(D)(1)(b), now
R.C. 2929.14(B)(1)(b). However, that section applies only to the extent that former R.C.
2929.14(D)(1)(g) (now R.C. 2929.14(B)(1)(g)) does not apply. Former R.C.
2929.14(D)(1)(g) stated:
-11-
If an offender is convicted of or pleads guilty to two or more felonies, if one
or more of those felonies are aggravated murder, murder, attempted
aggravated murder, attempted murder, aggravated robbery, felonious
assault, or rape, and if the offender is convicted of or pleads guilty to a
specification of the type described under division (B)(1)(a) of this section in
connection with two or more of the felonies, the sentencing court shall
impose on the offender the prison term specified under division (B)(1)(a) of
this section for each of the two most serious specifications of which the
offender is convicted or to which the offender pleads guilty and, in its
discretion, also may impose on the offender the prison term specified under
that division for any or all of the remaining specifications.
(Emphasis added.)
{¶ 15} Here, the trial court’s failure to impose an additional three-year consecutive
prison term for the second firearm specification benefitted Jackson, because he will
ostensibly serve fewer years in prison. Accordingly, none of Jackson’s substantial rights
were violated, and he suffered no prejudice.
{¶ 16} Finally, Jackson’s arguments in regard to a violation of his speedy trial rights
and his counsel’s failure to raise the issue in the trial court were barred by res judicata.
Initially, we note that we found in Jackson I that Jackson’s speedy trial rights had not been
violated when the trial court denied his motion to dismiss on speedy trial grounds. Thus,
any issue with respect to Jackson’s speedy trial rights has already been litigated, and we
need not address it here. Additionally, “[a]ny ineffective assistance claim relating to
matters contained within the record should be brought through a direct appeal.” State v.
-12-
Lane, 2d Dist. Greene No. 2014-CA-54, 2015-Ohio-2712, ¶ 13, citing State v. Wilson, 2d
Dist. Montgomery No. 23129,
2013-Ohio-180, ¶ 47-48. “ ‘If an alleged constitutional
error [such as ineffective assistance of counsel] could have been raised and fully litigated
on direct appeal, the issue is res judicata and may not be litigated in a postconviction
proceeding.’ ”
Id., quoting State v. Franklin, 2d Dist. Montgomery No. 19041, 2002-Ohio-
2370, ¶ 9, citing State v. Perry,
10 Ohio St.2d 175, 180,
226 N.E.2d 104 (1967).
{¶ 17} In light of the foregoing, Jackson’s six assignments of error are overruled.
{¶ 18} The judgments of the trial court are affirmed.
.............
HALL, J. and WELBAUM, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
J. Joshua Rizzo
Dennis D. Jackson
Hon. Gerald Parker
