State v. HoustonState v. Houston
JUDGMENT: AFFIRMED
FOR APPELLANT
Wilbert Houston, Pro Se
Inmate No. 284-618
Marion Correctional Institution
P.O. Box 57
Marion, OH 43302
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Thorin O. Freeman
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
MELODY J. STEWART, J.:
{¶ 1} Appellant, Wilbert Houston, appeals a decision of the Cuyahoga County Court of Common Pleas denying his petition for postconviction relief. For the reasons stated below, we affirm.
{¶ 2} In 1993, a jury found Houston guilty of aggravated murder with an accompanying firearm specification. The trial court sentenced Houston to life imprisonment for aggravated murder and a consecutive three years for
{¶ 3} On September 23, 2010, Houston filed a second petition, captioned “Verified Delayed Petition For Post-Conviction Relief,” which is the subject of this appeal. In this petition, Houston argued that his indictment was unconstitutionally vague because it named three defendants but failed to identify any one of them as a principal offender. He further argued that he was denied a fair trial because the trial court denied his request for a separate trial, allowed a co-defendant to testify against him, and failed to properly instruct the jury in the law. He also alleged ineffective assistance of trial counsel for failing to object to the indictment, the joint trial, and the jury instructions. Houston supported his petition with his own “Affidavit of Verity” and later supplemented his petition with a copy of the indictment.
{¶ 5} “I. Appellant‘s indictment is unconstitutionally vague and fails to give him fair notice of the charges made against him.
{¶ 6} “II. The jury verdict rests on unconstitutional grounds.”
{¶ 7} Before addressing the merits of Houston‘s postconviction claims, we must first address the state‘s assertion that the petition was untimely filed and therefore the trial court lacked jurisdiction over it.
{¶ 8} A defendant may file a petition for postconviction relief to vacate a judgment of conviction on the ground that the conviction is void or voidable because the defendant was denied rights protected by the state or federal constitution.
{¶ 9}
{¶ 10} “(A) Whether a hearing is or is not held on a petition filed pursuant to section
{¶ 11} “(1) Both of the following apply:
{¶ 12} “(a) Either the petitioner shows that the petitioner was unavoidably prevented from 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 section
{¶ 13} “(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 ***.”
{¶ 14} When a petition for postconviction relief is untimely filed,
{¶ 15} Houston does not claim that he was unavoidably prevented from discovery of the facts upon which he bases his claims, or that there is a new state or federal right that applies to his situation. In fact, he gives no reason for the lengthy delay in filing his petition and bases all of his claims on facts in the record. Accordingly, Houston‘s petition does not meet the exceptions for an untimely petition set forth in
{¶ 16} Additionally, all of Houston‘s claims were raised, or could have been raised on direct appeal or in his first petition for postconviction relief. They are therefore barred by res judicata. State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104. Because Houston‘s petition for postconviction relief was untimely filed and his claims barred by principles of res judicata, the trial court properly denied the petition without considering the merits of those claims. Accordingly, Houston‘s first and second assignments of error are overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
MELODY J. STEWART, JUDGE
MARY EILEEN KILBANE, A.J., and
MARY J. BOYLE, J., CONCUR