[Cite as State v. Barnett,
2021-Ohio-822.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. Earle E. Wise, J.
:
-vs- :
: Case No. CT2020-0037
WILLIAM BARNETT :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Crimial appeal from the Muskingum County
Court of Common Pleas, Case No.2008-
0210
JUDGMENT:
DATE OF JUDGMENT ENTRY: March 17, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
D. MICHAEL HADDOX JAMES ANZELMO
Prosecuting Attorney 446 Howlad Drive
BY: TAYLOR P. BENNINGTON Gahana, OH 43230
Assistant Prosecutor
27 North Fifth St., Box 189
Zanesville, OH 43701
[Cite as State v. Barnett, 2021-Ohio-822.]
Gwin, P.J.
{¶1} Defendant-appellant William J. Barnett [“Barnett”] appeals the May 20, 2020
Judgment Entry of the Muskingum County Court of Common Pleas overruling his Petition
to Vacate or Set Aside Judgment of Conviction or Sentence.
Facts and Procedural History
{¶2} Barnett entered a plea of guilty on April 9, 2009, to Rape in violation of R.C.
2907.02, a felony of the first degree, and Aggravated Burglary in violation of R.C. 2911.11,
a felony of the first degree. In exchange for the plea, the state nolled Count 2 of the
indictment alleging kidnapping in violation of R.C. 2905.01(A)(4), the sexually violent
predator specification to Count 2, the repeat violent offender specification to Count 2 and
the sexually violent predator and repeat violent offender specifications to Count 3. The
state recommended a 10-year sentence on Count 1 and Count 2 to be served consecutive
to one another but concurrent with a sentence Barnett was currently serving in the
Franklin County Court of Common Pleas. (Sent. T. at 3). See, State v. Barnett, 5th Dist.
Muskingum No. CT2009–0025, 2010–Ohio–1695. This Court affirmed Barnett’s
conviction and sentence. Id. The Ohio Supreme Court declined to exercise jurisdiction.
State v. Barnett,
126 Ohio St.3d 1582, 2010–Ohio–4542,
934 N.E. 355 (Table).
{¶3} On November 24, 2009, Barnett filed a petition for post-conviction relief to
vacate or set aside his conviction in the trial court pursuant to R.C. 2953.21, claiming
ineffective assistance of counsel alleging he was forced to accept the plea bargain due
to misrepresentations made by counsel, he was denied a right to a preliminary hearing
and his right to a speedy trial was violated. The trial court denied Barnett’s petition by
Muskingum County, Case No. CT2020-0037 3
Judgment Entry filed November 24, 2009. No appeal was filed from the trial court’s
judgment entry denying Barnett’s petition.
{¶4} On October 23, 2015, Barnett filed: 1). Motion for Hearing on Newly
Discovered Evidence; 2). Crim.R. 33(A)(4)(6) Motion for a New Trial on Evidence Not
Available for Seven Years; 3).Crim.R. 32.1 Motion for Withdrawal of Guilty Plea—Hearing
Requested. On October 30, 2015, Barnett filed a Motion to Dismiss Alleged DNA
Evidence. On November 18, 2015, Barnett filed an Amended Motion to Suppress Alleged
DNA Evidence. The state filed a response to each motion filed by Barnett. The trial court
denied all of Barnett’s motions by Judgment Entry filed May 26, 2016. State v. Barnett,
5th Dist. Muskingum No. CT2016-0028, 2016 WL 7159140, at *1-3(Dec. 5, 2016). This
Court affirmed the judgment of the trial court.
Id. On May 17, 2017, the Ohio Supreme
Court declined to accept jurisdiction of the appeal. State v. Barnett,
149 Ohio St.3d 1408
(Ohio 2017).
{¶5} Barnett filed his habeas petition on December 4, 2017, presenting fifteen
claims. Barnett v. Warden, Marion Corr. Inst., S.D. Ohio No. 2:17-CV-1099, 2018 WL
5266755(Oct. 23, 2018). Barnett also filed a request for discovery, alleging that the state
concealed DNA evidence and prevented him from viewing any discovery material before
June 2015, when he obtained documents from the Muskingum County Sheriff’s Office.
The warden filed a motion to dismiss Barnett’s petition as time-barred. Barnett responded,
conceding that his petition was untimely but arguing that he was entitled to equitable
tolling.
Id.
{¶6} The magistrate judge reviewed the parties’ pleadings and first determined
that the record did not support Barnett’s allegation that the prosecution withheld DNA or
Muskingum County, Case No. CT2020-0037 4
other evidence or that Barnett was unable to obtain discovery material. Accordingly, the
magistrate judge denied Barnett’s motion for discovery. The magistrate judge further
concluded that Barnett’s reasons for equitable tolling—appellate counsel’s refusal to
contact him after the 2010 dismissal of his appeal by the Ohio Supreme Court; his poor
health, which has required several surgeries over the years; and his claim of actual
innocence—did not provide sufficient justification to toll the limitations period. The
magistrate judge therefore recommended granting the warden’s motion to dismiss.
Barnett v. Warden, Marion Corr. Inst., 2018 WL 5266755 at *10. Over Barnett’s
objections, the district court adopted the magistrate judge’s report, granted the warden’s
motion to dismiss, dismissed Barnett’s petition, and declined to issue a certificate of
appealability [“COA”] See, Barnett v. Wainwright ,6th Cir. No. 19-3207,
2019 WL 2489655
at *1(May 30, 2019). On appeal, the Sixth Circuit Court of Appeals denied Barnett’s’
application for a COA. Id. at *3.
{¶7} On April 7, 2020, Barnett filed a petition to vacate or set aside judgment of
conviction or sentence. By Judgment Entry filed May 1, 2020, the trial court denied
Barnett’s petition.
Assignments of Error
{¶8} Barnett raises one Assignments of Error,
{¶9} “I. THE TRIAL COURT ERRED BY DENYING BARNETT'S MOTION TO
VACATE HIS SENTENCES BECAUSE THE TRIAL COURT UNLAWFULLY ORDERED
BARNETT TO SERVE CONSECUTIVE SENTENCES, IN VIOLATION OF HIS RIGHTS
TO DUE PROCESS, GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO
Muskingum County, Case No. CT2020-0037 5
CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION.
Law and Analysis
{¶10} In his sole assignment of error, Barnett contends that the trial court
improperly imposed consecutive sentences because the trail court failed to make the
appropriate findings. Barnett further contends that this court should sua sponte construe
Barnett's motion and appeal as a motion to re-open his direct appeal pursuant to App.R.
26.
Res Judicata
{¶11} Res judicata generally bars a defendant from raising claims in a post-
sentencing motion to vacate or set aside judgment of conviction or sentence that he raised
or could have raised on direct appeal. See State v. Straley, 159 Ohio St.3d 82, 2019-
Ohio-5206,
147 N.E.3d 623, ¶23.
{¶12} In the case at bar, in his direct appeal Barnett raised, among others, the
following error,
“III. THE DEFENDANT–APPELLANT WAS DENIED DUE
PROCESS AND WAS TWICE PLACED IN JEOPARDY IN VIOLATION OF
ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE FIFTH
AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION WHEN HE WAS SENTENCED TO CONSECUTIVE
TERMS OF IMPRISONMENT FOR THE SAME OFFENSE.”
See, State v. Barnett, 5th Dist. Muskingum No. CT2009–0025, 2010–Ohio–1695.
Muskingum County, Case No. CT2020-0037 6
{¶13} Barnett was sentenced on May 11, 2009. In State v. Foster, 109 Ohio St.3d
1,
2006-Ohio-856,
845 N.E.2d 470, the Ohio Supreme Court held some sections and
provisions of Ohio’s sentencing statutes unconstitutional based on the decisions of the
United States Supreme Court in Blakely v. Washington,
542 U.S. 296,
124 S.Ct. 2531,
159 L.Ed.2d 403(2004), and Apprendi v. New Jersey,
530 U.S. 466,
120 S.Ct. 2348,
147
L.Ed.2d 435(2000). See, State v. Hodge,
128 Ohio St.3d 1,
2010-Ohio-6320,
941 N.E.2d
768. Among the provisions held unconstitutional in Foster were those requiring a trial
judge to make certain findings prior to imposing consecutive sentences, R.C.
2929.14(E)(4), and creating presumptively concurrent terms, R.C. 2929.41(A). State v.
Havergne, 8th Dist. Cuyahoga No. 96951,
2012-Ohio-810. To remedy this constitutional
defect, these provisions were severed from the remaining, valid portions of the statutory
sentencing framework.
Id.
{¶14} After the decision in Foster, trial judges who imposed consecutive
sentences did not need to apply the provisions severed by Foster but instead were to
apply the law that was displaced by the enactment of the severed provisions. State v.
Hodge, 128 Ohio St.3d 1 at ¶2. However, after Foster was decided, the United States
Supreme Court determined that a state could require its judiciary to make specific findings
necessary to impose consecutive rather than concurrent sentences without impinging on
a jury’s role as factfinder. Oregon v. Ice, 555 U.S.160, 163–164,
129 S.Ct. 711,
172
L.Ed.2d 517(2009).
{¶15} Subsequent to the decision in Ice, the Ohio Supreme Court decided that
Foster still validly excised those sections requiring findings before imposing maximum or
consecutive sentences. State v. Hodge, 128 Ohio St.3d 1, 2010–Ohio–6320, 941 N.E.2d
Muskingum County, Case No. CT2020-0037 7
768. The Supreme Court, however, held that the state legislature could enact similar
legislation.
Id. at paragraph three of the syllabus. This approach culminated in an overhaul
of Ohio’s sentencing provisions, including some similar requirements to those in existence
prior to Foster. State v. Havergne, 8th Dist. Cuyahoga No. 96951,
2012-Ohio-810, ¶8.
{¶16} At the time of Barnett’s sentencing, Hodge had not been decided, and the
new sentencing guidelines had not been enacted by the legislature. Therefore, the trial
court was not required to make findings in order to impose consecutive sentences. Hodge
at paragraph three of the syllabus.
{¶17} At the time of Barnett’s sentencing, appellate review was limited to whether
the General Assembly authorized separate punishments for the crimes committed by the
appellant. See, State v. Bickerstaff, 10 Ohio St.3d 62, 65,
461 N.E.2d 892 (1984). Barnett
raised this issue in his direct appeal. We found in the previous appeal, “[Barnett’s] double
jeopardy rights were not violated because aggravated burglary and rape are not allied
offenses of similar import.” State v. Barnett, 5th Dist. Muskingum No. CT2009–0025,
2010–Ohio–1695, ¶33.
{¶18} Accordingly, because the trial court was not required to make findings in
order to impose consecutive sentences and, further, Barnett’s had raised the issue of
whether the General Assembly authorized separate punishments for the crimes
committed by Barnett in his direct appeal, the trial court did not err in finding that Barnett’s
motion to vacate or set aside judgment of conviction or sentence was barred by res
judicata.
{¶19} Barnett’s sole assignment of error is overruled.
Muskingum County, Case No. CT2020-0037 8
{¶20} The judgment of the Muskingum County Court of Common Pleas is
affirmed.
By Gwin, P.J.,
Hoffman, J., and
Wise, Earle, J., concur
