State v. Reynolds

[This opinion has been published in Ohio Official Reports at 

79 Ohio St.3d 158

.]




           THE STATE OF OHIO, APPELLANT, v. REYNOLDS, APPELLEE.
                     [Cite as State v. Reynolds, 

1997-Ohio-304

.]
Appellate procedure—Where criminal defendant, subsequent to direct appeal, files
        a motion seeking vacation or correction of sentence on basis that
        constitutional rights have been violated, the motion is a petition for
        postconviction relief as defined in R.C. 2953.21.
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.
        (No. 96-229—Submitted March 19, 1997—Decided June 25, 1997.)
        APPEAL from the Court of Appeals for Erie County, No. E-95-041.
                                  __________________
        {¶ 1} 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.
        {¶ 2} 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.
        {¶ 3} Reynolds appealed his conviction again. On September 29, 1989, the
court of appeals affirmed Reynolds’s conviction.
        {¶ 4} 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
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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).
        {¶ 5} 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.
        {¶ 6} 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.
        {¶ 7} 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.
        {¶ 8} 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.




1. This court decided Gaines on October 11, 1989, and Murphy on March 7, 1990. Thus, Gaines
and Murphy were not decided by this court until after Reynolds’s 1988 conviction was affirmed.




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                                January Term, 1997




       {¶ 9} 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, J.
       {¶ 10} 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.
       {¶ 11} 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 * * *.”
       {¶ 12} 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




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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.
       {¶ 13} 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.
       {¶ 14} 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 (1) was 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.
       {¶ 15} 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.
       {¶ 16} 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.)
       {¶ 17} 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




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                                       January Term, 1997




issue on direct appeal. State v. Duling (1970), 

21 Ohio St.2d 13

, 

50 O.O.2d 40

, 

254 N.E.2d 670

.
         {¶ 18} 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 his direct appeal, res judicata should not prevent him from seeking
application of Gaines because he could not have applied the holding in Gaines in
his case before Gaines had been decided.2
         {¶ 19} Reynolds correctly cites the law as to what is controlling authority.
However, there was nothing to prevent Reynolds from appealing the issues of
operability and proof of operability of a firearm.                    Reynolds claims that the
controlling authority in his appellate district at the time of his appeal was Vasquez.
However, this did not bar Reynolds from appealing these issues. Even if the
appellate court had cited its own decision in Vasquez and found against Reynolds,
he could have then appealed to this court, which could have reversed or modified
Vasquez. In fact, the appellate court’s request for certification of Gaines cited



2. Even if we were to accept this position, which we do not, the logic of Reynolds’s argument is
eroded by the fact that the issues of the requirement to prove operability of a firearm and the standard
of proof had been certified to this court in Gaines and Vasquez by the date of Reynolds’s conviction
in May 1988. Presumably, the certification of these issues would have alerted Reynolds to appeal
these issues because the outcome in this court could have been in his favor. However, he did not
appeal those issues in his direct appeal.




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Vasquez as one of the cases in conflict with Gaines as to the evidence required to
prove operability of a firearm. Gaines, 

46 Ohio St.3d at 66

, 

545 N.E.2d at 69

.
         {¶ 20} In other words, there was nothing that precluded Reynolds from
directly appealing the issues of operability of the firearm and the proof required to
show operability. As a result, he is precluded from arguing these issues in a petition
for postconviction relief pursuant to res judicata.
         {¶ 21} Reynolds also argues that Gaines and Murphy should apply
retroactively in a petition for postconviction relief even when not raised on direct
appeal. We decline to accept this position to preserve finality. Further, retroactive
application of Gaines and Murphy would be irrelevant in this case because we have
recently decided State v. Thompkins (1997), 

78 Ohio St.3d 380

, 

678 N.E.2d 541

,
which, if applied retroactively to the facts of the case at bar, would have upheld the
firearm specification against Reynolds despite any application of Gaines and
Murphy.3



3. In State v. 

Thompkins, supra,

 we found that Gaines and Murphy had been misinterpreted by
courts of appeals which applied too restrictive a standard for proving the operability of a firearm.
We held that in determining the operability of a firearm, the “trier of fact may consider all relevant
facts and circumstances surrounding the crime, which include any implicit threat made by the
individual in control of the firearm.” (Citations omitted.) Id at paragraph one of the syllabus.
Thompkins clarifies that actions alone, without verbal threats, may be sufficient circumstances to
establish the operability of a firearm.
          Under the facts of the case at bar, witness Kelly Ann Gibson, a cashier at the IGA, testified
that two men came into the store. Both were wearing ski masks and both were holding guns. They
indicated that “this is a robbery.” While still holding the “silver” gun, one of the men (later identified
by fingerprints as Larry Reynolds) jumped on top of the shopping carts and into the office and took
a cash register drawer out of the safe. He exited the office, came over to Gibson, and told her to
open her cash register drawer. She complied and Reynolds took the cash out of her drawer.
          Under the circumstantial test laid out in Thompkins, this evidence is sufficient to sustain a
conviction for a firearm specification. Two masked men waving guns stated that they are committing
a robbery. The fact pattern in Thompkins is almost identical to that in the case at bar.
          As Reynolds argued in his brief, if the holdings in Gaines and Murphy are now and have
been the law, then res judicata clearly applies to his motion for postconviction relief because
Reynolds should have argued that Gaines and Murphy applied to his case on his direct appeal. He
failed to make such an argument. Accordingly, the necessary conclusion to Reynolds’s argument
supports our holding.




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                                     January Term, 1997




         {¶ 22} Accordingly, Reynolds was barred from raising these issues for the
first time in the petition for postconviction relief that he entitled “Motion to Correct
or Vacate Sentence.” Duling, supra.4
         {¶ 23} Therefore, the trial court erred in vacating Reynolds’s sentence for
the firearm specification. Accordingly, we reverse the judgment of the court of
appeals and reinstate Reynolds’s sentence for the firearm specification.
                                                                            Judgment reversed.
         MOYER, C.J., DICKINSON, F.E. SWEENEY, PFEIFER and COOK, JJ., concur.
         DOUGLAS, J., concurs in judgment only.
         CLAIR E. DICKINSON, J., of the Ninth Appellate District, sitting for RESNICK,
J.
                                    __________________




4. Ironically, this matter has now come full circle. Defendant wants Gaines and Murphy
retroactively applied. If we were to accept Reynolds’s retroactive application argument, then we
would also have to apply Thompkins retroactively; and under Thompkins, Reynolds’s claim would
fail because the evidence is sufficient to support the jury’s finding that the firearm was operable.
This line of cases illustrates the need for finality and closure when issues have not been preserved
for appeal.




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