State v. BilliterState v. Billiter
For Plaintiff-Appellee
MICHAEL J. ERNEST
125 East High Avenue
New Philadelphia, OH 44663
For Defendant-Appellant
FRED L. BILLITER, JR., PRO SE
15708 McConnelsville Road
Caldwell, OH 43724
Farmer, P.J.
{¶1} On November 1, 1999, appellant, Fred Billiter, Jr., pled guilty to two counts of rape in violation of
{¶2} On September 14, 2009, apрellant filed a pro se motion for relief from judgment pursuant to
{¶3} Appellant filed an appeal and this matter is now before this court for consideration. Assignment of error is as follows:
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{¶4} “THE APPELLANT‘S UNITED STATES FOURTEENTH AMENDMENT DUE PROCESS RIGHTS WERE VIOLATED WHEN THE STATE HAD FAILED TO PROPERLY EXECUTE A SEARCH WARRANT ON THE APPELLANT‘S RESIDENCE THEREBY VIOLATING HIS UNITED STATES FOURTH AMENDMENT RIGHT AGAINST ILLEGAL SEARCH AND SEIZURE.”
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{¶5} Appellant claims the trial court erred in denying his motion for relief from judgment pursuant to
{¶6} Appellant filed his pro se motion pursuant to
{¶7} In State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, ¶11, the Supreme Court of Ohio reviewed a similar filing and held the following:
{¶8} “We must now consider whether Schlee properly resorted to
{¶9}
{¶10} “(2) Except as otherwise provided in
{¶11} The trial court sentenced appellant on November 3, 1999. Appellant did not file а direct appeal. Nearly ten years later, appellant filed the subject motion for
{¶12} A trial court does not have any jurisdiction to hеar an untimely petition for postconviction relief unless the movant meets the requirements in
{¶13} “(A) Whether a hearing is or is not held on a petition filed pursuant to
{¶14} “(1) Both of the following apply:
{¶15} “(a) Either the petitioner shows that the petitioner was unavoidably prevented frоm discovery of the facts upon which the petitioner must rely to present the claim for relief, or, subsequent to the period prescribed in division (A)(2) of
{¶16} “(b) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted or, if the claim challenges a
{¶17} Upon review, we find appellant has not shown any reason under
{¶18} Also, appellant‘s arguments about the execution of the search warrant was available on direct appeal. He failed to file a direct appeal. Therefore, appellant‘s arguments are barred under the doctrine of res judicata. As stated by the Supreme Court of Ohio in State v. Perry (1967), 10 Ohio St.2d 175, paragraphs eight and nine of the syllabus, the doctrine of res judicata is applicable to petitions for postconvictiоn relief. The Perry court explained the doctrine at 180-181 as follows:
{¶19} “Under the doctrine of res judicata, a final judgment of conviction bars the convicted dеfendant 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 the trial which resulted in that judgment of conviction or on an appeal from that judgment.”
{¶20} Upon review, we find the trial court did not err in denying appellant‘s
{¶21} The sole assignment of error is denied.
By Farmer, P.J.
Edwards, J. and
Delaney, J. concur.
_s/ Sheila G. Farmer__________________
_s/ Julie A. Edwards__________________
_s/ Patricia A. Delaney________________
JUDGES
SGF/db 1201
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Tuscarawas County, Ohio is affirmed.
Costs to appellant.
_s/ Sheila G. Farmer__________________
_s/ Julie A. Edwards__________________
_s/ Patricia A. Delaney________________
JUDGES