A Franklin County Appeals Court panel determined that a Columbus man convicted of drug trafficking
and related offenses in 2013 missed his opportunity to appeal a 2014 resentencing when he failed to raise the issue in a direct appeal at the time.

The Tenth District Court of Appeals panel affirmed the Franklin County Common Pleas Court’s denial of 51-year-old Ruben Rhodes’ motion asking the court to fully comply with a remand order from more than 10 years ago.

“R.C. 2953.21 requires a defendant to file a postconviction petition no later than 365 days after the date on which the trial transcript is filed in the court of appeals in the direct appeal of the judgment of conviction,” Tenth District Judge David Leland wrote for the panel. “Appellant did not style his motion as a postconviction petition, but the substance of his request — that the trial court fully comply with this court’s remand order — amounts to a postconviction petition under” the statute.

Rhodes, who is currently incarcerated at Madison Correctional Institution in London, was convicted Aug. 13, 2013, of a single count of engaging in a pattern of corrupt activity, seven counts of aggravated trafficking in drugs, one count of possession of heroin and two counts of aggravated possession of drugs, case summary provided.

He was sentenced Sept. 16, 2013, to 37 years in prison.

On appeal, a Tenth District appellate panel upheld Rhodes’ convictions but remanded the case to the trial court for a new sentencing hearing to resolve a merger issue, summary continued.

The trial court held a brief resentencing hearing Dec. 3, 2014, and indicated the merging of four counts into two.

According to the summary, all parties agreed to the mergers. However, the initial resentencing entry filed Dec. 4, 2014 incorrectly stated it was sentencing Rhodes on multiple counts that included two of the merged counts.

The trial court filed a revised resentencing omitting any mention of the previously agreed-to merged counts Dec. 9, 2014.

Later that month, the trial court filed a third resentencing entry to correct an unrelated error, summary provided.

Rhodes filed a motion on Jan. 7 asking the Common Pleas court to fully comply with the appellate remand order.

The state responded with a memorandum against the court taking such action on Jan. 10. Prosecutors for the state asserted that Rhodes’ motion failed to take into account the Dec. 9, 2014, revised resentencing entry that corrected the error he was currently objecting.

Additionally, the state asserted that the motion was barred by res judicata.

On Feb. 21, the trial court denied appellant’s motion, prompting the man’s appeal.

“First, the trial court on Dec. 9, 2014, corrected what appeared to be a ministerial error in the first resentencing entry by removing its reference to Counts 83 and 84,” Leland wrote. “The trial court thus complied with this court’s remand order… . We find no abuse of discretion in the trial court’s second corrected judgment entry of Dec. 9, 2014, or its third entry of Dec. 23, 2014.”

Leland noted that the transcript of the resentencing hearing following the Tenth District remand was filed Feb. 2, 2015, and that Rhodes did not file his post-conviction petition until “about nine years too late.

“While the trial court did not rule on this basis, appellant’s untimely filing supports our conclusion the court did not abuse its discretion in denying the motion,” the appellate judge continued.

The panel also held that the post-conviction petition from a convicted defendant who is represented by counsel is barred by the doctrine of res judicata, as the issue could have been raised on direct appeal.

“Lastly, appellant argued the trial court erred in failing to separately impose fines on each of his drug possession and drug trafficking convictions,” Leland continued.  “The Ohio Rules of Appellate Procedure require an appellant’s brief to include ‘an argument containing the contentions of the appellant with respect to each assignment of error presented for review and the reasons in support of the contentions, with citations to the authorities, statutes and parts of the record on which appellant relies.’ Unfortunately, appellant failed to argue the assignment separately in the brief. We are thus permitted to disregard this assignment of error.”

Leland wrote that it did not matter that Rhodes raised “discernable contentions” about mandatory fines. Rather the appellate panel is to rule on assignments of error, not “mere arguments.”