STATE OF OHIO, Plaintiff-Appellee, - vs - SHURMALE LAMAR GARNER, Defendant-Appellant.
CASE NO. 2017-L-037
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO
October 2, 2017
2017-Ohio-7814
DIANE V. GRENDELL, J.
Civil Appeal from the Lake County Court of Common Pleas, Case No. 06 CR 000174. Judgment: Affirmed.
Shurmale Lamar Garner, pro se, PID# A522-147, P.O. Box 8000, 501 Thompson Road, Conneaut, OH 44030 (Defendant-Appellant).
OPINION
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Shurmale Lamar Garner, appeals from the Judgment Entry of the Lake County Court of Common Pleas, denying his postconviction petition. The issues to be decided in this case are whether a claim regarding the constitutionality of a statute is untimely and barred by res judicata when it is raised over nine years after the defendant‘s conviction; whether a sentence for drug possession and trafficking is void when the police did not test the cocaine for purity, and whether
{¶2} On June 16, 2006, Garner was indicted for three drug-related offenses. Following a jury trial, Garner was convicted of Trafficking in Cocaine, a felony of the first degree, in violation of
{¶3} In his direct appeal, Garner raised issues relating to his confession, jury polling, sufficiency of the evidence, and his sentence. This court affirmed the convictions and sentence. State v. Garner, 11th Dist. Lake No. 2007-L-041, 2007-Ohio-5914.
{¶4} On June 18, 2010, Garner filed a Motion to Vacate and Correct Void Judgment, raising concerns with the jury verdict forms, which the trial court denied. This denial was affirmed in State v. Garner, 11th Dist. Lake No. 2010-L-111, 2011-Ohio-3426.
{¶5} Garner‘s March 21, 2016 Motion to Correct Clerical Error Pursuant to Crim.R. 36, alleging a sentencing error, was also denied by the trial court. That judgment was affirmed in State v. Garner, 11th Dist. Lake No. 2016-L-041, 2016-Ohio-5785.
{¶6} On January 3, 2017, Garner filed a Petition for Post-Conviction (Evidentiary Hearing) [sic], in which he argued, inter alia, that a recent Ohio Supreme Court case, State v. Gonzales, ___ Ohio St.3d ___, 2016-Ohio-8319, ___ N.E.3d ___,
{¶7} In a January 27, 2017 Judgment Entry, the trial court denied Garner‘s petition as untimely filed.
{¶8} Garner timely appeals and raises the following assignments of error:
{¶9} “[1.] The appellant‘s imprisonment violates the U.S. Constitution where he‘s imprisoned on statutes that are void for vagueness.
{¶10} “[2.] The common pleas court was required via
{¶11} “[3.] The appellant‘s sentence should be considered void because his sentence does not comply with mandatory language of the statutes [in violation] of the Fourteenth Amendment.”
{¶12} Pursuant to
{¶13} Generally, an appellate court reviews a trial court‘s denial of a petition for postconviction relief under an abuse of discretion standard. State v. Hendrix, 11th Dist. Lake No. 2012-L-080, 2013-Ohio-638, ¶ 7. This court has held, however, in cases
{¶14} The assignments of error will be considered out of order for ease of discussion.
{¶15} As an initial matter, we note that the trial court dismissed Garner‘s petition as untimely. A postconviction petition filed under
{¶16} In his first assignment of error, Garner argues that the statute under which he was convicted for Possession of Cocaine,
{¶17} As noted above, a petition must be filed within one year of the filing of the trial transcript in the direct appeal to be timely. Garner‘s petition was submitted over nine years after the transcript was filed. The exceptions to the timeliness requirement discussed above do not apply here, since Garner was not prevented from discovering
{¶18} Even if this claim was not untimely, it would be barred by the doctrine of res judicata, under which a defendant is precluded 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 * * *” or on direct appeal. State v. Hobbs, 11th Dist. Lake No. 2010-L-064, 2011-Ohio-1298, ¶ 39, citing State v. Szefcyk, 77 Ohio St.3d 93, 96, 671 N.E.2d 233 (1996). Also State v. McCaleb, 11th Dist. Lake No. 2004-L-003, 2005-Ohio-4038, ¶ 19 (applying res judicata in postconviction proceedings). Claims relating to “constitutionality of a statute or its application” which were not previously raised are also waived. State v. Awan, 22 Ohio St.3d 120, 489 N.E.2d 277 (1986), syllabus; State v. Jeffries, 182 Ohio App.3d 459, 2009-Ohio-2440, 913 N.E.2d 493, ¶ 49 (11th Dist.). Garner failed to raise this argument at the trial court level at the time of his conviction or in his direct appeal and it will not be considered now.
{¶19} The first assignment of error is without merit.
{¶20} In his third assignment of error, Garner argues that the Supreme Court‘s holding in State v. Gonzales, ___ Ohio St.3d ___, 2016-Ohio-8319, ___ N.E.3d ___, that filler material should be excluded when weighing cocaine, renders his sentence void. He contends that the purity of the cocaine in his case was not determined, which impacted the level of offense with which he was charged and his ultimate sentence.
{¶21} Initially, there is again a timeliness issue. Garner does not satisfy the exceptions to the 365 day requirement as provided in
{¶22} Furthermore, we emphasize that the initial Gonzales opinion was swiftly vacated and is no longer the law of Ohio. On December 23, 2016, the Ohio Supreme Court issued its opinion in Gonzales, holding that “in prosecuting cocaine-possession offenses under
{¶23} The third assignment of error is without merit.
{¶24} In his second assignment of error, Garner argues that he was entitled to have counsel appointed to represent him on his petition for postconviction relief.
{¶25} An offender is not automatically entitled to representation in postconviction proceedings. State v. Crowder, 60 Ohio St.3d 151, 573 N.E.2d 652 (1991), paragraph one of the syllabus (“an indigent petitioner does not have a state or a federal constitutional right to representation by an attorney in a postconviction proceeding“).
{¶27} However, this court has explained that “the indigent petitioner bears the initial burden to show in the petition that he is entitled to a hearing” and, if the petitioner fails to make such a showing, “the court is not required to notify the public defender, nor is the public defender obligated to prosecute the petition.” Giles at * 3; State v. Dudley, 11th Dist. Trumbull No. 99-T-0166, 2000 WL 1876778, * 6 (Dec. 22, 2000).
{¶28} The test for whether an evidentiary hearing must be held is whether there are substantive grounds for relief that would warrant a hearing based upon the petition, the supporting affidavits, and the files and records of the case.
{¶29} The second assignment of error is without merit.
{¶30} For the foregoing reasons, the judgment of the Lake County Court of Common Pleas, denying Garner‘s postconviction petition, is affirmed. Costs to be taxed against appellant.
CYNTHIA WESTCOTT RICE, P.J.,
TIMOTHY P. CANNON, J.,
concur.