STATE OF OHIO v. PHILLIP COLEMAN III
CASE NO. CA2023-03-037
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
12/4/2023
[Cite as State v. Coleman, 2023-Ohio-4354.]
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR 2014 03 0530
Phillip Coleman III, pro se.
M. POWELL, J.
{¶ 1} Appellant, Phillip Coleman, III, appeals a decision of the Butler County Court of Common Pleas denying his untimely petition for postconviction relief.
{¶ 2} Appellant was indicted in 2014 on one count of murder with accompanying firearm and repeat violent offender specifications and one count of having weapons while under disability. Under the indictment, appellant was subject to prison terms of 15 years to
{¶ 3} On June 6, 2022, appellant filed a pro se petition for postconviction relief (“PPCR“), arguing that his constitutional rights were violated because the indictment pursuant to which he was charged was not signed by the grand jury foreperson and his trial counsel was ineffective for failing to challenge the defective indictment. The state moved to dismiss the PPCR. Appellant filed a “Motion to Rebuttal” in opposition to the state‘s motion to dismiss, reiterating his arguments. The motion also asserted that appellant was not given a preliminary hearing “due to supposedly being indicted.”
{¶ 4} On March 20, 2023, the trial court denied appellant‘s PPCR without an evidentiary hearing. The trial court found that trial counsel was not ineffective by failing to challenge the unsigned indictment because the state could have sought an amended indictment; furthermore, as a result of the negotiated plea deal, appellant was sentenced to a 14-year prison term instead of the potential prison term of up to 31 years to life appellant faced under the indictment. The trial court also found that the PPCR was untimely and barred by res judicata. Finally, the trial court found that appellant was not entitled to an evidentiary hearing on his PPCR because the petition did not present substantive grounds for relief.
{¶ 5} Appellant now appeals, raising three assignments of error.
{¶ 6} Assignment of Error No. 1:
{¶ 8} Appellant argues that his constitutional rights were violated and the trial court lacked jurisdiction because he was not afforded a preliminary hearing in violation of
Appellant‘s Preliminary Hearing Arguments
{¶ 9} Appellant did not raise the preliminary hearing issue in his PPCR. It is “well-settled that issues not raised in the trial court may not be raised for the first time on appeal.” State v. Murray, 12th Dist. Brown No. CA2015-12-029, 2016-Ohio-4994, ¶ 27, fn. 1. Even if, arguendo, the issue was raised in appellant‘s “rebuttal motion,” his constitutional rights were not violated by the lack of a preliminary hearing.
{¶ 10} “The only purpose of a preliminary hearing is to determine whether sufficient facts exist to warrant the court in binding the accused over to the grand jury and to set bail, and once an indictment has been returned by the grand jury, a preliminary hearing before a magistrate is no longer necessary.” State v. Morris, 42 Ohio St.2d 307, 325-326 (1975). Likewise, while
{¶ 11} The grand jury foreperson is required to sign all indictments under
{¶ 12} Appellant‘s first assignment of error is overruled.
{¶ 13} Assignment of Error No. 2:
{¶ 14} DEFENDANT‘S UNITED STATES CONSTITUTION SIXTH AMENDMENT RIGHT WAS VIOLATED FOR COUNSEL FAILED TO OBJECT OR CHALLENGE DEFECTIVE INDICTMENT, AND DID NOT FILE MOTION TO DISMISS DUE TO DEFENDANT NOT HAVING A PRELIMINARY HEARING OR VALID INDICTMENT, AND WITHHELD LEGAL DOCUMENTS.
{¶ 15} Appellant argues that his trial counsel was ineffective because he failed to provide him with a copy of the indictment, challenge the unsigned indictment, and move to dismiss the charges against him based upon the defective indictment. Appellant also raises the failure to afford him a preliminary hearing.
{¶ 16} “To prevail on an ineffective assistance of counsel claim in the context of a guilty plea, the defendant must show that (1) his counsel‘s performance was deficient and
{¶ 17} Appellant‘s PPCR did not claim ineffective assistance of counsel based upon trial counsel‘s failure to provide him with a copy of the indictment and failure to seek dismissal of the charges due to the defective indictment and lack of a preliminary hearing. Because issues not raised in the trial court may not be raised for the first time on appeal, we will not consider appellant‘s arguments. Murray, 2016-Ohio-4994 at ¶ 27, fn. 1; State v. Ludwick, 4th Dist. Highland No. 22CA9, 2023-Ohio-1113, ¶ 25.
{¶ 18} Trial counsel‘s failure to challenge the unsigned indictment did not constitute ineffective assistance of counsel. Having rejected appellant‘s argument on the issue of the unsigned indictment in the first assignment of error, his claim of ineffective assistance of counsel based upon the same ground is likewise without merit. See State v. Dahlberg, 11th Dist. Ashtabula No. 2020-A-0030, 2021-Ohio-550, ¶ 89; State v. Henderson, 39 Ohio St.3d 24, 33 (1988) (“The grounds which underlie each of these instances have already been separately addressed and found to be without merit. Accordingly, we need not address the counsel-performance component of these grounds“). Additionally, even if trial counsel had challenged the indictment and it had been dismissed as defective, it would not have prevented the state from re-presenting the case to the grand jury and obtaining another indictment.
{¶ 19} Furthermore, appellant is barred by res judicata from raising trial counsel‘s failure to challenge the unsigned indictment. Under res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and
{¶ 20} The presentation of competent, relevant, and material evidence outside the record may defeat the application of res judicata. State v. Barron, 12th Dist. Warren No. CA2022-09-059, 2023-Ohio-1249, ¶ 14. “With the exception of certain ineffective assistance of counsel claims, the evidence relied upon must not be evidence that was in existence or available for use at the time of trial or direct appeal.” Id. “Post-conviction relief is available only for errors based upon facts and evidence outside the record. Errors and deficiencies in an indictment are not outside the record; therefore they can only be attacked on direct appeal.” State v. Peterson, 8th Dist. Cuyahoga No. 90263, 2008-Ohio-4239, ¶ 12. Because appellant failed to raise the defective indictment issue on direct appeal, he is barred by res judicata from raising trial counsel‘s failure to challenge the defective indictment now. Id.
{¶ 21} Appellant‘s second assignment of error is overruled.
{¶ 22} Assignment of Error No. 3:
{¶ 23} DEFENDANT‘S RIGHT TO PCR WAS VIOLATED. TRIAL COURT ERRED IN NOT GRANTING DEFENDANT‘S POST CONVICTION HEARING AND VIOLATED RULES SET FORTH IN
{¶ 24} Appellant argues that the trial court erred by denying his PPCR without a hearing. Appellant asserts that he was unavoidably prevented from discovering the defective indictment because trial counsel failed to provide him with a copy of the unsigned indictment. Appellant twice sought a copy of his indictment, first in 2020, and then,
{¶ 25} “[A] trial court properly denies a defendant‘s petition for postconviction relief without holding an evidentiary hearing where the petition, the supporting affidavits, the documentary evidence, the files, and the records do not demonstrate that petitioner set forth sufficient operative facts to establish substantive grounds for relief.” State v. Calhoun, 86 Ohio St.3d 279, 1999-Ohio-102, paragraph two of the syllabus. A trial court‘s decision to summarily deny a postconviction petition without holding an evidentiary hearing will not be reversed absent an abuse of discretion. State v. Simon, 12th Dist. Butler No. CA2014-12-255, 2015-Ohio-2989, ¶ 11.
{¶ 26} Because appellant did not file a direct appeal, he was required to file his PPCR within a specific time limit after the expiration of the time for filing the appeal. Regardless of whether the former 180-day time limit or the current 365-day time limit applied, see
{¶ 27} Under such circumstances,
{¶ 28} Contrary to his assertion, appellant was not unavoidably prevented from discovering that the indictment was unsigned. At arraignment,
{¶ 29} Furthermore, appellant cannot satisfy the requirement of
{¶ 30} The trial court, therefore, did not err in denying appellant‘s untimely PPCR without an evidentiary hearing. Appellant‘s third assignment of error is overruled.
{¶ 31} Judgment affirmed.
S. POWELL, P.J., and BYRNE, J., concur.