State of Ohio, Plaintiff-Appellee, v. William L. Robinson, Jr., Defendant-Appellant.
No. 16AP-887 (C.P.C. No. 12CR-1868)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
May 11, 2017
[Cite as State v. Robinson, 2017-Ohio-2773.]
(ACCELERATED CALENDAR)
Rendered on May 11, 2017
On brief: Ron O‘Brien, Prosecuting Attorney, and Michael P. Walton, for appellee.
On brief: William L. Robinson, Jr., pro se.
APPEAL from the Franklin County Court of Common Pleas
HORTON, J.
{¶ 1} Defendant-appellant, William L. Robinson, Jr., pro se, appeals the December 8, 2016 judgment of the Franklin County Court of Common Pleas denying his “Post-Conviction Petition to Vacate or Set Aside Judgement of Conviction or Sentence.” For the reasons that follow, we affirm the judgment of the trial court.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} The facts of this case are stated in our prior decision affirming appellant‘s convictions. State v. Robinson, 10th Dist. No. 13AP-563, 2014-Ohio-5201.1 As pertinent to this appeal, on April 13, 2012, the grand jury indicted appellant for aggravated burglary and sexual battery. Appellant entered a plea of not guilty to both charges and proceeded
{¶ 3} On August 22, 2016, two and one-half years after this court affirmed his convictions, appellant filed a “Post-Conviction Petition to Vacate or Set Aside Judgement of Conviction or Sentence.” In his petition, appellant argued that his conviction should be vacated based on his allegation of ineffective assistance of counsel. The state filed a memorandum contra on October 3, 2016. In the decision and entry of December 8, 2016, the trial court denied appellant‘s petition stating “[t]his matter came before the Court on Defendant‘s Petition to Vacate or Set Aside Judgement of Conviction. The Court, after full and careful consideration, finds said motion not well taken and hereby DENIES the same.” (Emphasis sic.)
II. ASSIGNMENT OF ERROR
{¶ 4} Appellant appeals, assigning the following errors for our review:
[I.] APPELLANT‘S TRIAL COUNSEL PROVIDED INCOMPETENT AND INEFFECTIVE ASSISTANCE AT, BEFORE AND DURING TRIAL, IN VIOLATION OF APPELLANT‘S FIFTH, SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION.
[II.] THE JURY VERDICTS IN THIS CASE WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE TO CONVICT ON THE CHARGE OF AGGRAVATED BURGLARY.
III. DISCUSSION - TRIAL COURT PROPERLY DENIED THE PETITION
{¶ 5} ” ‘[A] trial court‘s decision granting or denying a postconviction petition filed pursuant to
{¶ 6} The general rule is that any motion filed after the time for appeal has expired that raises constitutional issues is deemed a postconviction petition for relief as defined in
{¶ 7} Postconviction relief is a civil collateral attack on a judgment, not an additional direct appeal of the underlying judgment. State v. Phipps, 10th Dist. No. 14AP-545, 2015-Ohio-3042, ¶ 5, citing State v. Calhoun, 86 Ohio St.3d 279, 281 (1999). A petition for postconviction relief allows the 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. Phipps at ¶ 5, citing State v. Carter, 10th Dist. No. 13AP-4, 2013-Ohio-4058, ¶ 15.
{¶ 8} Except as provided in
{¶ 9}
{¶ 10} Here, appellant filed the trial transcript for his direct appeal on August 30, 2013. Thus, appellant‘s 365-day deadline to file a petition for postconviction relief expired on August 30, 2014. Appellant did not file his petition until August 22, 2016, nearly 2 years after the deadline expired. Thus, appellant‘s petition for postconviction relief is untimely.
{¶ 11} Because appellant‘s amended petition for postconviction relief is untimely, he must establish that his petition falls within one of the exceptions specified in
{¶ 12} Even if appellant‘s petition was not time barred, appellant‘s arguments would fail due to the doctrine of res judicata. ” ‘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 or conviction, or on an appeal from that judgment.” (Emphasis sic.) State v. Cole, 2 Ohio St.3d 112, 113 (1982), quoting Perry at paragraph nine of the syllabus. “Res judicata also implicitly bars a petitioner from ‘re-packaging’ evidence or issues which either were, or could have been, raised in the
{¶ 13} “Res judicata is applicable in all postconviction relief proceedings.” State v. Szefcyk, 77 Ohio St.3d 93, 95 (1996). As a result, “[p]ostconviction review is a narrow remedy, since res judicata bars any claim that was or could have been raised at trial or on direct appeal.” State v. Steffen, 70 Ohio St.3d 399, 410 (1994). “For a defendant to avoid dismissal of the petition by operation of res judicata, the evidence supporting the claims in the petition must be competent, relevant, and material evidence outside the trial court record, and it must not be evidence that existed or was available for use at the time of trial.” State v. Montgomery, 10th Dist. No. 13AP-1091, 2014-Ohio-5756, ¶ 19.
{¶ 14} Appellant makes two arguments, both of which relate to an allegation of ineffective assistance of counsel. First, appellant argues that his trial counsel should have requested certain analysis, or have experts consulted, concerning DNA evidence. Second, appellant asserts that his trial counsel was ineffective for failing to produce evidence of appellant‘s prior consistent statement at trial and, therefore, his convictions were not supported by sufficient evidence.
{¶ 15} Both of these arguments could have been raised during his direct appeal. As a result, they are barred by res judicata. All of his arguments are based on evidence that either was presented at trial, or that appellant argues should have been raised at trial. There is no newly discovered evidence. Because the evidence upon which appellant relies existed or was available for use at the time of trial, it cannot form the basis of a postconviction claim.
{¶ 16} Appellant‘s postconviction petition is untimely, resulting in a lack of jurisdiction. In addition, even if the trial court had jurisdiction, both of appellant‘s claimed grounds for relief are barred by res judicata.
IV. DISPOSITION
{¶ 17} Based on the foregoing, appellant‘s two assignments of error are overruled. Having overruled appellant‘s two assignments of error, the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
BROWN and SADLER, JJ., concur.
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