STATE OF OHIO v. RICHARD WHITMAN
Case No. 2019CA00094
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
October 7, 2019
[Cite as State v. Whitman, 2019-Ohio-4140.]
Hоn. Patricia A. Delaney, P.J.; Hon. Craig R. Baldwin, J.; Hon. Earle E. Wise, Jr., J.
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 7, 2019
APPEARANCES:
For Plaintiff-Aрpellee: JOHN D. FERRERO, Prosecuting Attorney, By: KRISTINE W. BEARD, 110 Central Plaza, South, Suite 510, Canton, OH 44702-1413
For Defendant-Appellant: RICHARD WHITMAN, PRO SE, Inmate No. A694-724, Belmont Cоrrectional Institution, P.O. Box 540, St. Clairsville, OH 43950
OPINION
{1} Defendant-Appellant, Richard Whitman, appeals the June 6, 2019 judgment entry of the Court оf Common Pleas of Stark County, Ohio, denying his motion to vacate a void sentence and conviction. Plaintiff-Appellee is state of Ohio.
FACTS AND PROCEDURAL HISTORY
{2} On April 27, 2017, appellant was found guilty of one count of murder with a firearm specification in violation of
{3} On July 24, 2018, appellant filed a motion for postconviction rеlief, claiming ineffective assistance of counsel. By judgment entry filed August 21, 2018, the trial court denied the motion, finding appellant was “just requesting a second bite of the apple,” and it did not find any trial counsel deficiency. The trial court‘s decision was affirmed on appeal. State v. Whitman, 5th Dist. Stark No. 2018CA00134, 2019-Ohio-377.
{4} On August 13, 2018, the trial court resentenced appellant per this court‘s remand. See Judgment Entry filed September 28, 2018.
{5} On April 15, 2019, appellant filed a petition to vacate and set aside judgment of conviction and sentence, claiming in part recent changes to
{6} Appellant filеd an appeal and this matter is now before this court for consideration. Appellant has failed to set fоrth an assignment of error, however we glean the following from his brief:2
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{7} “THE TRIAL COURT ERRED IN DENYING APPELLANT‘S PETITION TO VACATE AND SET ASIDE JUDGMENT OF CONVICTION AND SENTENCE.”
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{8} In his sole assignment of error, appellant claims the trial court erred in denying his petition to vacate and set aside judgment of conviction and sentence. We disagree.
{9} As determined by the trial court, appellant‘s April 15, 2019 petition was clearly untimely pursuant to
(A) Whether а hearing is or is not held on a petition filed pursuant to section 2953.21 of the Revised Code, a court may not entertаin a petition filed after the expiration of the period prescribed in division (A) of that
section or a seсond petition or successive petitions for similar relief on behalf of a petitioner unless division (A)(1) or (2) of this section applies: (1) Both of the following apply:
(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 2953.21 of the Revised Code or to the filing of an earlier petition, the United States Suрreme Court recognized a new federal or state right that applies retroactively to persons in the petitioner‘s situation, and the petition asserts a claim based on that right.
(b) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found the pеtitioner guilty of the offense of which the petitioner was convicted or, if the claim challenges a sentenсe of death that, but for constitutional error at the sentencing hearing, no reasonable factfinder would havе found the petitioner eligible for the death sentence.3
{10} In reviewing appellant‘s April 15, 2019 filing, we find appellant did not satisfy the requirements of
{11} Changes to
{12} Any other arguments raised by appellant in his petition are barred under the doctrine of res judicata. As stated by the Supreme Court of Ohio in State v. Perry, 10 Ohio St.2d 175 (1967), paragraphs eight and nine of the syllabus, the doctrine of res judicata is applicable to petitions for postconviction relief. The Perry court explained the doctrine at 180-181 as follows:
Under the doctrine of res judicаta, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising аnd 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 that judgment of conviction, or on an appeal from that judgment.
{13} The issues raised by appellant in his petition could have been raised on direct appeal and/or were raised in his previous appeals.
{14} Upon review, we find the trial court did not err in denying appellant‘s petition for postconviction relief.
{15} The sole assignment of error is denied.
By Wise, Earle, J.
Delaney, P.J. and
Baldwin, J. concur.
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