STATE OF OHIO, Plaintiff-Appellee, - vs - JOSEPH T. WEBER, Defendant-Appellant.
CASE NO. 2013-L-080
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO
August 25, 2014
2014-Ohio-4133
CYNTHIA WESTCOTT RICE, J.
Criminal Appeal from the Lake County Court of Common Pleas, Case No. 10 CR 000507. Judgment: Affirmed.
Joseph T. Weber, pro se, PID: A594653, Trumbull Correctional Institution, P.O. Box 901, Leavittsburg, OH 44430-0901 (Defendant-Appellant).
OPINION
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Joseph T. Weber, appeals from the judgment of the Lake County Court of Common Pleas denying appellant’s postconviction “Motion for Evidentiary Hearing.” For the reasons discussed below, we affirm.
{¶2} In September 2010, appellant was charged, via bill of information, with one count of carrying concealed weapons, a felony of the fourth degree, in violation of
{¶3} On June 3, 2011, appellant filed a motion for judicial release and requested a hearing. The state opposed the motion. And, on June 21, 2011, the trial court denied the motion.
{¶4} On October 22, 2012, appellant filed a pro se motion for an “evidentiary hearing.” In the motion, appellant claimed he was deprived of effective assistance of trial counsel when counsel failed to advise him of various rights he would be waiving by pleading guilty; he further asserted counsel was ineffective for failing to file a motion to suppress evidence.
{¶5} The state filed a memorandum in opposition to the motion, arguing appellant’s pleading should be treated as a petition for postconviction relief. Construing the pleading thusly, the state asserted the petition should be denied because (1) it was untimely; and (2) the arguments could have been raised on direct appeal and are therefore barred by res judicata. On December 12, 2012, the trial court determined the pleading should be treated as a petition for postconviction relief. As such, the court agreed with the state’s arguments and dismissed the petition. This appeal followed.
{¶6} Appellant asserts two assignments of error. For ease of discussion, we shall address them together. The provide:
{¶7} “[1.] Court abused its discretion in not granting evidentiary hearing which denied defendant due process and equal protection of the laws U.S.C.A. 14, 4, 5, 6.
{¶8} “[2.] Defendant was denied effective assistance of counsel and due process of the laws. U.S.C.A. 6, 14.”
{¶9} Appellant’s assigned errors argue his trial counsel was ineffective for failing to file a motion to suppress evidence. He contends that, had a hearing been held, the trial court would have concluded counsel’s alleged deficient performance functioned to prejudice appellant.
{¶10} Preliminarily, “[c]ourts may recast irregular motions into whatever category necessary to identify and establish the criteria by which the motion should be judged.” State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, ¶12, citing State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993. Because appellant’s motion was (1) filed subsequent to the expiration of the time for filing a direct appeal, (2) claimed a denial of constitutional rights, and (3) was seeking to vacate his judgment on conviction, the trial court properly construed the pleading as a petition for postconviction relief. Schlee, supra.
{¶11} When a trial court dismisses a petition for postconviction relief, we review the judgment de novo. State v. Johnson, 5th Dist. Guernsey No. 12 CA 19, 2013-Ohio-1398, ¶27.
{¶12}
{¶13} In this case, appellant was sentenced on January 11, 2011; the time for filing his direct appeal expired on February 10, 2011. Accordingly, the deadline for filing a petition for postconviction relief was August 9, 2011. The petition in the instant matter
{¶14}
{¶15} In this case, the trial court observed that appellant failed to set forth any argumentation relating to the circumstances described in
{¶16} The trial court further concluded that even if the petition was timely, appellant’s arguments were barred by res judicata. Pursuant to 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 trial, which resulted in the judgment of conviction, or on an appeal from that judgment.” State v. Szefcyk, 77 Ohio St.3d 93 (1996), syllabus. Further, to overcome the application of res judicata in the context of a
{¶17} In this case, appellant claimed his trial counsel was ineffective for failing to file a motion to suppress. Because appellant pleaded guilty to the bill of information, the only way in which he could have raised the issue is by reference to evidence dehors the record. In this respect, the argument appellant raised in his petition was not an available issue for direct appeal and, consequently, would not be barred by res judicata. Nevertheless, appellant failed to submit evidence outside the record to support any such argument pertaining to trial counsel’s ineffectiveness and, as a result, his petition would be insufficient even if it were timely. In sum, to be successful, appellant would need to obtain additional evidence outside the record to support his assertion because the paucity of information in the record prevents this court from discerning any obvious mistakes or prejudice in the proceedings below.
{¶18} Appellant’s two assigned errors are without merit.
{¶19} For the reasons discussed in this opinion, the judgment of the Lake County Court of Common Pleas is affirmed.
THOMAS R. WRIGHT, J.,
COLLEEN MARY O’TOOLE, J.,
concur.