State v. BolerState v. Boler
Phillip Dionte Boler, Marion, Ohio, pro se.
Keller J. Blackburn, Athens County Prosecuting Attorney, and Robert P. Driscoll, Athens County Assistant Prosecuting Attorney, Athens, Ohio, for Appellee.
CRIMINAL APPEAL FROM COMMON PLEAS COURT
ABELE, J.
{¶ 1} Phillip Dionte Boler-Bey, defendant below and appellant herein, appeals the Athens County Common Pleas Court denial of his motion for postconviction relief and assigns three errors for review:
FIRST ASSIGNMENT OF ERROR:
“DID THE MID-TRIAL AMENDMENT TO THE BILL OF PARTICULARS THAT INCLUDED A NEW THEORY OF CONDUCT CHANGE THE NAME AND IDENTITY OF
R.C. 2911.01(A)(3) , AGGRAVATED ROBBERY, ANDR.C. 2903.02(B) , MURDER, AS CHARGED IN THE INDICTMENT?”
“COULD IT BE SAID THAT APPELLANT WAS CONVICTED OF COMPLICITY TO THE VERY OFFENSES FOR WHICH HE WAS INDICTED WHERE THE TRIAL COURT PERMITTED A MID-TRIAL AMENDMENT, TO THE BILL OF PARTICULARS, THAT INCLUDED A NEW THEORY OF CONDUCT FOUND SUBSEQUENTLY TO THE FILING OF THE INDICTMENT, CONTRARY TO
R.C. 2941.03(E) ?”
THIRD ASSIGNMENT OF ERROR:
“WAS APPELLANT‘S MOTION FOR POST-CONVICTION RELIEF FROM JUDGMENT BARRED BY THE DOCTRINE OF RES JUDICATA WHERE HE RAISED ISSUES OF JURISDICTIONAL DEFECTS THAT RENDERED THE JUDGMENT OF CONVICTION VOID AB INITIO?”
{¶ 2} We first incorporate the statement of facts and prior procedural history as detailed in our decision in the direct appeal of this case. See State v. Boler, 4th Dist. Athens No. 09CA24, 2010-Ohio-3344. In our decision, we affirmed appellant‘s convictions and sentence, finding: (1) no prosecutorial misconduct during closing argument, (2) the trial court did not abuse its discretion by allowing certain challenged evidence, and (3) the cumulative error doctrine did not apply. To supplement the facts and procedural history from Boler I, we add some relevant milestones and subsequent history.
{¶ 3} The record reflects that on February 20, 2009, an Athens County grand jury returned an
{¶ 4} On June 19, 2009, a jury found appellant guilty of complicity to aggravated robbery and complicity to murder, both with firearm specifications. On June 22, 2009, the trial court issued an entry to indicate that appellant was convicted of aggravated robbery [2911.01(A)(3)] and complicity to murder [2903.02(B)], but on July 1, 2009 the court issued a nunc pro tunc judgment to correct the June 22, 2009 judgment in which “the amount of money seized from Defendant during this investigation lists the wrong amount. Also, the previous entry stated that defendant was found guilty of Count One, Aggravated Robbery which should actually be Complicity to Aggravated Robbery. * * *” On September 22, 2009, the trial court issued another nunc pro tunc entry, this time to indicate once again that appellant was convicted of aggravated robbery and complicity to murder. On October 2, 2009, the trial court issued another nunc pro tunc entry to state that appellant was convicted of complicity to aggravated robbery and complicity to murder.
{¶ 5} On May 5, 2010, and again on May 21, 2010, appellant filed motions for disclosure of grand jury transcripts. On May 21, 2010, appellant also filed his first petition for postconviction relief and asked the trial court to dismiss the defective indictment “do [sic] to lack of Sufficient Subject Matter, and Court have [sic] no Jurisdiction to hear such indictment, since the indictment does not have the necessary ingredience [sic] to create the required elements to display the initial
{¶ 6} As noted above, on July 12, 2010 this court affirmed the trial court‘s judgment of conviction. See Boler, 4th Dist. Athens App. No. 09CA24, 2010-Ohio-3344. On September 13, 2010, appellant filed a pro se
{¶ 7} On August 26, 2011, appellant filed an
{¶ 8} On January 11, 2012, appellant filed a second motion to reconsider, or in the alternative, to certify a conflict. On March 5, 2012, this court denied appellant‘s application for reconsideration and denied the untimely motion to certify a conflict. On March 16, 2012, appellant again filed a motion to reconsider this court‘s March 5, 2012 decision to deny appellant‘s January 11, 2012 application to reconsider or to certify a conflict. On May 1, 2012, this court denied appellant‘s application for reconsideration.
{¶ 9} On April 9, 2013, appellant filed a request for a re-sentencing hearing. On April 16, 2013, the trial court denied appellant‘s request for resentencing, finding that the aggravated robbery related to Osbourne and that the individual murdered was Donnie Putnam, therefore as two victims
{¶ 10} On May 2, 2013, appellant filed a second notice of appeal (13CA19) to appeal the trial court‘s April 16, 2013 decision that denied his motion for resentencing. On June 13, 2013, appellant filed a corrected notice of appeal, and on June 20, 2013, this court (13CA19) dismissed appellant‘s appeal because the trial court‘s April 16, 2013 entry is not a final appealable order. In this court‘s ruling, we also held: “Boler could have raised the issue concerning whether the trial court sentenced him on allied offenses of similar import in his sentencing on his direct appeal, but failed to do so. The doctrine of res judicata bars not only the re-litigation of previous claims, but also bars a litigant from raising any issue, claim or defense that could have been previously raised but was not. (citation omitted). The allied offenses argument was available to Boler on direct appeal. Having failed to raise the issue then, Boler is bared by the doctrine of res judicata from raising it at this time.”
{¶ 11} On September 14, 2014, appellant filed a motion to vacate a void judgment (09CA24) and raised the same issue he raises here. On October 7, 2014, the magistrate‘s order denied appellant‘s motion to vacate a void judgment and stated “[t]his Court finds nothing in Boler‘s current motion that has not or could not have been raised in his direct appeal. The doctrine of res judicata bars the consideration of errors that could have been raised on direct appeal, but were not. (Citation omitted). Moreover, Boler has not demonstrated that any of these errors would have rendered the trial court‘s judgment void; therefore, they would also not render this Court‘s judgment void. Boler‘s motion to vacate a void judgment is hereby DENIED.”
{¶ 12} On October 15, 2014 (09CA24), appellant filed a motion for a judgment on the pleadings. On October 29, 2014, the magistrate‘s order denied appellant‘s motion for judgment on the pleadings as moot because no pleadings were currently before the court. On November 25, 2014
{¶ 13} On July 17, 2017, appellant filed his second petition for postconviction relief, a motion to vacate a void judgment “due to fraud upon the court” in 09CR0091. On August 3, 2017, appellant filed a motion for judgment on the pleadings in the trial court, and on August 15, 2017, the court denied appellant‘s motion to vacate a void judgment due to fraud upon the court, construing it as “an untimely, as well as successive,
{¶ 14} On December 22, 2017, appellant filed his third motion for postconviction relief and reasserted the claims that the trial court denied on August 15, 2017. On January 2, 2018, the trial court denied appellant‘s motion for postconviction relief and noted that appellant‘s motion is “an untimely, as well as successive,
II.
{¶ 15} Postconviction relief is a civil collateral attack on a judgment, not an appeal of that judgment. State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905 (1999). A petition for postconviction relief allows a petitioner to present constitutional issues that would otherwise be unreviewable on direct appeal because the evidence supporting those issues is not contained in the record of the criminal conviction, but a postconviction relief petition does not provide a second opportunity to litigate the conviction. State v. Jones, 10th Dist. Franklin No. 16AP-803, 2017-Ohio-5529, ¶ 6.
{¶ 16} Postconviction relief is governed by
(A)(1)(a) Any person who has been convicted of a criminal offense or adjudicated a delinquent child 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 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.
“[A] trial court‘s decision granting or denying a postconviction petition filed pursuant to
R.C. 2953.21 should be upheld absent an abuse of discretion; a reviewing court should not overrule the trial court‘s finding on a petition for posconviction relief that is supported by competent and credible evidence.” State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58. Also, see Calhoun at 284 (postconviction relief “statute clearly calls for discretion in determining whether to grant a hearing”).
{¶ 17} For purposes of clarity, we first address appellant‘s third assignment of error. Appellant asserts that his motion for postconviction relief should not be barred by res judicata “where he raised issues of jurisdictional defects that rendered the judgment of conviction void ab initio,” and contends a denial of “his rights.”
{¶ 18} We first point out that the version of
{¶ 19} In addition to being untimely, a trial court may also dismiss a petition when the claims are barred by the doctrine of res judicata. See State v. Szefcyk, 77 Ohio St.3d 93, 671 N.E.2d 233 (1996), syllabus. Res judicata is applicable in all postconviction relief proceedings. Szefcyk at 95. “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 the trial, which resulted in that judgment of conviction, or on an appeal from that judgment.” Id. at syllabus. Thus, to avoid application of res judicata, a petitioner must assert a claim that was not raised, or could not have been raised, at the time of trial or on direct appeal, and support such claim with competent, relevant, and material evidence outside the record. Further, the Supreme Court of Ohio held that a trial court properly denies a
{¶ 20} In the case sub judice, the issues appellant raised in his untimely, successive petition for postconviction relief could have been raised in his direct appeal, but were not. “The doctrine of res judicata bars not only the re-litigation of previous claims, but also bars a litigant from raising any
This Court finds nothing in Boler‘s current motion that has not or could not have been raised in his direct appeal. The doctrine of res judicata bars the consideration of errors that could have been raise don direct appeal, but were not. State v. Beach, 4th Dist. Gallia App. No. 11CA4, 2012-Ohio-1630. Moreover, Boler has not demonstrated that any of these errors would have rendered the trial court‘s judgment void; therefore, they would also not render this Court‘s judgment void. Boler‘s motion to vacate a void judgment is hereby DENIED. Id. at p. 2.
The issues appellant raises in the case sub judice are the same issues raised in his September 14, 2014 motion. These matters are barred and the trial court properly dismissed the postconviction relief petition. Generally, the validity and sufficiency of an indictment must be raised on direct appeal. Payne v. Jeffreys, 109 Ohio St.3d 239, 2006-Ohio-2288, 846 N.E.2d 1248, ¶ 5. Even if a trial court‘s amendment of an indictment is improper, at most the judgment may have been voidable and a defendant would be required to raise this issue on direct appeal.
{¶ 21} Consequently, we overrule appellant‘s third assignment of error.
III.
{¶ 22} In his first assignment of error, appellant asserts that the mid-trial amendment to the bill of particulars included a new theory of conduct and changed the name and identity of
{¶ 23} The state responds that assuming, arguendo, appellant could appeal the trial court‘s decision, the amendment to the Bill of Particulars is appropriate and did not change the name or section under which appellant was indicted.
{¶ 24} The state notes that the Bill of Particulars (1) was amended in a timely manner, and (2) only specified the predicate offense(s) for aggravated burglary, so made no change to the name or identity of the crime. The theft offense predicate-offense element of aggravated robbery was specified to name “attempted theft, burglary or attempted burglary.” The burglary element was an element of the aggravated robbery charge, not an independent count. Moreover, the factual allegations in the original and amended Bills of Particulars did not change. Thus, neither the name or
{¶ 25} Therefore, appellant‘s first proposed assignment of error has no merit.
IV.
{¶ 26} In appellant‘s second assignment of error, he argues: “Could it be said that Appellant was convicted of complicity to the very offenses for which he was indicted where the trial court permitted a mid-trial amendment, to the bill of particulars, that included a new theory of conduct found subsequently to the filing of the indictment, contrary to
{¶ 27} For all of the reasons above, we affirm the trial court‘s judgment to dismiss appellant‘s untimely, successive petition for postconviction relief.
JUDGMENT AFFIRMED.
It is ordered that the judgment be affirmed and that appellee recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Athens County Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted by the trial court or this court, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty-day period, or the failure of the appellant to file a notice of appeal with the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Harsha, J. & McFarland, J.: Concur in Judgment & Opinion
For the Court
BY: _________________________
Peter B. Abele, Judge
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.