STATE OF OHIO v. MICHAEL WILLIAMSON
No. 104294
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
September 29, 2016
[Cite as State v. Williamson, 2016-Ohio-7053.]
BEFORE: E.A. Gallagher, J., Jones, A.J., and Stewart, J.
JOURNAL ENTRY AND OPINION; JUDGMENT: AFFIRMED; Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-01-406972-ZA
Michael Williamson, pro se
Richland Correctional Institution
P.O. Box 8107
Mansfield, Ohio 44901
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Diane Smilanick
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant Michael Williamson, pro se, appeals the trial court‘s denial of his petition to vacate or set aside his judgment of conviction or sentence. He contends (1) that the trial court erred in denying his petition for postconviction relief without issuing findings of fact and conclusions of law (2) that a “history of vindictiveness” by the trial court warrants a de novo review of his petition for postconviction relief or the “dismissal” of his convictions and sentence with prejudice and (3) that the trial court erred in denying his request for counsel in connection with his petition for postconviction relief. For the reasons that follow, we affirm the trial court‘s judgment.
Factual and Procedural Background
{¶2} In December 2001, a jury found Williamson guilty of 12 counts of rape. In February 2002, the trial court sentenced Williamson to twelve consecutive life prison terms, postrelease control “for the maximum period allowed,” a $240,000 fine, and court costs. Williamson appealed his convictions, arguing that the trial court had made various erroneous and prejudicial evidentiary rulings and that his trial counsel had rendered ineffective assistance by failing to object to certain testimony and failing to offer the testimony of a defense witness. Williamson did not assign any error in his direct appeal regarding his sentence or the trial court‘s advisement regarding postrelease control.
{¶4} On December 4, 2002, Williamson filed, pro se, a motion for a new trial. The trial court denied the motion. Williamson did not appeal that ruling.
{¶5} Nine years later, in December 2011, Williamson filed, pro se, a motion to vacate void judgment and order new sentencing hearing, asserting that the trial court had failed to notify him of the consequences of violating postrelease control both at his sentencing hearing and in its sentencing journal entry and that his sentence should, therefore, be vacated and the case remanded for a de novo sentencing hearing. In February 2012, the trial court issued a judgment entry denying the motion and further stating, “[c]ourt will resentence defendant on PRC issue only prior to release from prison if necessary.” Williamson did not appeal that ruling.
{¶6} In November 2012, Williamson filed, pro se, a “motion to correct sentence” in which he again requested a de novo sentencing hearing, alleging (1) that the trial court had failed to advise him of the mandatory nature of postrelease control and the consequences of violating postrelease control, (2) that the trial court failed to advise him of his right to a direct appeal and (3) that the trial court had failed to consider the
{¶7} This court held that because Williamson did not submit the transcript from the sentencing hearing, it must be presumed that he was properly notified of postrelease control at the sentencing hearing. Id. at ¶ 16. It remanded the case to the trial court “for the limited purpose of correcting its 2002 judgment entry to reflect a full notification of Williamson‘s postrelease control” with a nunc pro tunc entry and held that all other assignments of error were barred by the doctrine of res judicata. Id. at ¶ 2, 22-23.
{¶8} On September 30, 2013, the trial court entered a corrected sentencing entry “to include complete PRC language,” including that postrelease control was mandatory for five years and advising Williamson of the consequences of violating postrelease control. Williamson, once again, appealed the judgment (Appeal No. 100563). Williamson failed to file the record and the appeal was initially dismissed. However,
{¶9} This court consolidated the two appeals for purposes of oral argument and disposition. Unlike Williamson II, in Appeal Nos. 100563 and 101115, the transcript from the original sentencing hearing was part of the record on appeal. State v. Williamson, 8th Dist. Cuyahoga Nos. 100563 and 101115, 2014-Ohio-3909, ¶ 13-15 (“Williamson III“). With the benefit of the transcript, this court concluded that “it is now clear that the trial court never advised Williamson at sentencing of any of the postrelease control provisions and, therefore, the mandate of this court to issue a nunc pro tunc order was without foundation and that trial court could not nunc what it did not first tunc.” Id. at ¶ 15. This court held that the trial court had erred in imposing postrelease control without conducting a sentencing hearing and had lacked jurisdiction to conduct
{¶10} On September 24, 2014, Williamson filed, pro se, a motion to recuse the trial judge. Williamson claimed that, based upon comments the trial judge had made during his original sentencing hearing and the trial court‘s previous errors in sentencing him, the trial judge was prejudiced against him and that he “could not get a fair hearing” if the trial judge were to preside over his resentencing. The trial court denied the motion.
{¶11} On November 6, 2014, the trial court held a resentencing hearing limited to the postrelease control notification. Once again, Williamson appealed. Williamson‘s appointed appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and requested leave to withdraw as counsel. State v. Williamson, 8th Dist. Cuyahoga No. 102320, 2015-Ohio-4482, ¶ 1 (“Williamson IV“). This court granted Williamson leave to file his own appellate brief but he did not do so. Id. at ¶ 3. Following an independent review of the record, this court held that the trial court had complied with the remand as directed in Williamson III and that the appeal was wholly frivolous pursuant to Anders. Id. at ¶ 7-9. This court granted counsel‘s request to withdraw and affirmed the trial court‘s judgment. Id. at ¶ 9.
{¶14} On March 2, 2016, the trial court summarily denied Williamson‘s petition to vacate or set aside his judgment of conviction or sentence. Williamson appealed the trial court‘s denial of his petition, raising the following four assignments of error for review:
ASSIGNMENT OF ERROR NO. I:
The trial court failed to provide statutorily required findings of facts and conclusions of law and, accordingly, the appeal should be remanded to the trial court to so provide.
ASSIGNMENT OF ERROR NO. II:
The trial court deliberately refused to provide this defendant with findings of facts and conclusions of law, in line with its history of judicial vindictiveness against this defendant, justifying this court as an equitable matter, deciding this appeal de novo.
ASSIGNMENT OF ERROR NO. III:
The trial court‘s previous history of judicial vindictiveness is [sic] against this defendant, coupled with failure to provide finding of fact and conclusions of law instantly, justifies dismissal of the underlying criminal conviction, and/or its sentence, with prejudice.
ASSIGNMENT OF ERROR NO. IV:
Law and Analysis
Failure to Issue Findings of Fact and Conclusions of Law
{¶15} In his first assignment of error, Williamson argues that the trial court erred by failing to issue findings of fact and conclusions of law when denying his petition to vacate or set aside his judgment of conviction or sentence.
{¶16} “Where a criminal defendant, subsequent to his or her direct appeal, files a motion seeking vacation or correction of his or her sentence on the basis that his or her constitutional rights have been violated, such a motion is a petition for postconviction relief as defined in
{¶17} Under
{¶18} There are strict time limits for seeking postconviction relief under
{¶19} If a defendant‘s petition is untimely or a defendant files a “second petition or successive petitions for similar relief,” a court “may not entertain” the petition for postconviction relief unless the petitioner satisfies the requirements of
{¶20}
{¶21} Williamson claims that his petition was timely and not a successive petition because it was filed within 365 days of the date the transcript was filed in his direct appeal of the November 6, 2014 resentencing and was the first petition for postconviction relief he filed after the resentencing. Williamson filed his petition on November 16, 2015. The transcript in Williamson‘s appeal of the November 6, 2014 resentencing judgment entry was filed with this court on February 2, 2015. The transcript in Williamson‘s direct appeal from his convictions was filed on April 17, 2002, more than thirteen-and-a-half years earlier.
{¶22} In an attempt to obtain review of alleged errors that he either previously raised (and which were rejected) or that he could have previously raised, Williamson couches his “claims” in his petition as arising out the “ineffective assistance of resentencing counsel” or other alleged “resentencing” errors. Such “bootstrapping” is not permitted. See, e.g., State v. Williamson, 8th Dist. Cuyahoga No. 102320, 2015-Ohio-5135, ¶ 9.
{¶23} Williamson is not attacking the postrelease control notification, i.e., the portion of his sentence as to which he was resentenced at the November 6, 2004 resentencing, or seeking relief from the resentencing. He seeks to have his convictions
{¶24} Furthermore, because Williamson sought “similar relief” in prior filings for postconviction relief, his petition is properly considered a “successive petition” for purposes of
Alleged “History of Vindictiveness” by the Trial Judge
{¶25} In his second and third assignments of error, Williamson argues that the trial court‘s failure to issue findings of fact and conclusions of law combined with a “history of judicial vindictiveness” by the trial court warrants a de novo review by this court of his petition for postconviction relief or the “dismissal” of his convictions and
{¶26} As stated above, the trial court was not required to issue findings of fact and conclusions of law in denying Williamson‘s petition for postconviction relief. Accordingly, the trial court‘s failure to issue findings of fact and conclusions of law does not demonstrate “vindictiveness” calculated to prejudice Williamson on appeal.
{¶27} Although there is nothing in the record to suggest that the trial court was “vindictive” in denying Williamson‘s petition for postconviction relief without issuing findings of fact or conclusions of law, any claim of alleged bias or prejudice by the trial judge is not properly brought before this court. We have no authority to determine a claim that a trial judge is biased or prejudiced against a defendant and no authority to void a trial court‘s judgment based on a claim that the trial judge is biased or prejudiced. As the Seventh District explained in State v. Clark, 7th Dist. Mahoning No. 07-MA-87, 2008-Ohio-1179:
“The Chief Justice of the Supreme Court of Ohio, or his designee, has exclusive jurisdiction to determine a claim that a common pleas judge is
biased or prejudiced.” Jones v. Billingham, 105 Ohio App.3d 8, 11, 663 N.E.2d 657 (2d Dist.1995), citing Section 5(C), Article IV, Ohio Constitution; Adkins v. Adkins, 43 Ohio App.3d 95, 539 N.E.2d 686 (4th Dist.1988).
R.C. 2701.03 provides the exclusive means by which a litigant can assert that a common pleas judge is biased or prejudiced. Id. * * *An appellate court lacks the authority to pass upon the disqualification of a common pleas court judge or to void the judgment of a trial court on that basis. State v. Ramos, 88 Ohio App.3d 394, 398, 623 N.E.2d 1336 (1993).
Id. at ¶ 73-75; see also Fisher v. Fisher, 8th Dist. Cuyahoga No. 95821, 2011-Ohio-5251, ¶ 43 (“[C]hallenges of judicial prejudice and bias are not properly brought before an appellate court. * * * Courts of appeals lack authority to void the judgment of a trial court on such basis.“); State v. Bacon, 8th Dist. Cuyahoga No. 85475, 2005-Ohio-6238, ¶ 66 (“Appellant‘s exclusive remedy if he believed that the trial judge was biased or prejudiced against him at any stage of his case was to file an affidavit of disqualification pursuant to
Failure to Appoint Counsel for Postconviction Petition
{¶28} In his fourth and final assignment of error, Williamson argues that the trial court erred in denying his motion for appointment of counsel to represent him on his petition for postconviction relief. This argument is meritless as well. An indigent petitioner has neither a state nor a federal constitutional right to be represented by appointed counsel in a postconviction proceeding. State v. Crowder, 60 Ohio St.3d 151, 152, 573 N.E.2d 652 (1991), citing Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987);
{¶29} Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
LARRY A. JONES, SR., A.J., and MELODY J. STEWART, J., CONCUR