State v. Wright , 2022 Ohio 366 ( 2022 )

[Cite as State v. Wright, 2022-Ohio-366.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 29903
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
DEMARCO WRIGHT COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 13 10 2978(C)
DECISION AND JOURNAL ENTRY
Dated: February 9, 2022
SUTTON, Judge.
{¶1} Defendant-Appellant, Demarco Devonta Wright, appeals the judgment of the
Summit County Court of Common Pleas denying his petition for postconviction relief. For the
reasons that follow, this Court affirms.
I.
Relevant Background Information
{¶2} In State v. Wright, 9th Dist. Summit No. 27434, 2015-Ohio-2381, ¶ 2, this Court
summarized the facts leading to Mr. Wright’s arrest and conviction as follows:
In the early morning of October 25, 2013, [Mr. Wright], Teon Lipkins, and Derek
Recktenwalt robbed the house located at 617 Brown Street in Akron, Ohio in
pursuit of money and marijuana. At the time of the robbery, four of the
residence's five tenants, all college students, were at home. The tenants at home
during the robbery were [M.L.], [R.I.], [J.W.], and [T.M.]. Also present in the
home was [M.L.’s] girlfriend, [D.L.]. One tenant, [J.L.], was not in the residence
at the time of the robbery.
***
2
At around 1:00 a.m., Mr. Wright, Mr. Lipkins, and Mr. Recktenwalt broke open
the front door of the residence and entered the home. [T.M.] testified that he
awoke in the middle of the night with three unknown men standing in his
bedroom demanding money and marijuana. [T.M.] testified that one of the men
wore a red ski mask while another man, who he identified as [Mr.] Wright, held a
gun to his head during the encounter. [T.M.] then testified that the men tied his
wrists and feet together with a 20-foot guitar amplifier cord. He also testified that
the men took his cell phone.
[M.L.] stated that he walked downstairs to investigate the loud noises. Upon
walking down the stairs to the second floor, [M.L.] witnessed an unknown person
enter one of his roommates’ rooms. Another man, identified as [Mr.] Wright, then
pointed a gun at [M.L.’s] head and ordered him to sit down on the stairs and not
move. [M.L.] complied with Mr. Wright’s command. [M.L.] testified that Mr.
Wright then entered [R.I.’s] bedroom with his gun.
[R.I.] testified that he heard loud noises in the hallway before two of the three
suspects kicked in his door and ordered him to stay on his bed face down and not
move. [R.I.] identified [Mr.] Wright as one of the two men in his room that night.
The other man wore a red ski mask, according to [R.I.]. [R.I.] testified that Mr.
Wright held a gun to his head and demanded money and marijuana. The two
suspects then took money, marijuana, and a cell phone from [R.I.].
[D.L.] testified that she heard [M.L.] say, “Please don’t shoot” after he walked
downstairs to investigate the loud noises. [D.L.] immediately called 911 to report
the robbery and hid behind a couch in the attic bedroom. [D.L.] testified that one
of the intruders, later identified as [Mr.] Lipkins, then walked upstairs into the
bedroom where she was hiding. [D.L.] stated that the suspect looked at her and
began rummaging through the room’s belongings. Upon hearing police sirens, the
suspect attempted to kick out one of the room’s windows, then kicked out another
window and crawled outside onto the roof of the house.
The police eventually arrived at the scene and arrested Mr. Wright, Mr. Lipkins,
and Mr. Recktenwalt. The police returned the cell phones that the suspects had
stolen from [T.M.] and [R.I.]. The police also returned a check that the suspects
had stolen from [J.L.’s] nightstand after they broke into and ransacked his
bedroom.
Wright at ¶ 4-8.
{¶3} Following his arrest, the grand jury indicted Mr. Wright on three counts of
aggravated robbery, in violation of R.C. 2911.01(A)(1), four counts of kidnapping, in violation
of R.C. 2905.01(A)(2), one count of aggravated burglary, in violation of R.C. 2911.11(A)(2), and
3
one count of tampering with evidence, in violation of R.C. 2921.12(A)(1). Additionally,
pursuant to R.C. 2941.145, the aggravated robbery, kidnapping, and aggravated burglary charges
also carried firearm specifications. See Wright at ¶ 9.
{¶4} Following a jury trial which commenced on April 30, 2014:
[t]he jury ultimately found Mr. Wright guilty on all counts and specifications. The
trial judge sentenced Mr. Wright to 43 years of incarceration. The trial judge
sentenced Mr. Wright to ten years for the aggravated robbery of [T.M.], plus three
years for the underlying gun specification, seven years for the aggravated robbery
of [R.I.], plus three years for the underlying gun specification, and three years for
the aggravated robbery of [M.L.], plus three years for the underlying gun
specification. The trial judge ordered those sentences be served consecutively.
The trial judge then sentenced Mr. Wright to three years for the kidnapping of
[D.L.], plus three years for the underlying gun specification, to run concurrently.
She then merged the remaining kidnapping counts. The trial judge then sentenced
Mr. Wright to eleven years for the aggravated burglary, plus three years for the
underlying gun specification, to be served consecutively, and sentenced Mr.
Wright to three years for tampering with evidence, to run concurrently.
Wright at ¶ 10.
{¶5} Mr. Wright filed a direct appeal of his sentence and convictions. In so doing, Mr.
Wright raised two assignments of error for this Court’s review: (1) the trial court erred in
denying Mr. Wright’s Crim.R. 29 motion for acquittal/Mr. Wright’s convictions were against the
manifest weight of the evidence; and (2) the trial court erred in sentencing Mr. Wright to four
consecutive firearm specifications. Finding no error, this Court affirmed. Wright at ¶ 28.
{¶6} Mr. Wright moved this Court to reopen his direct appeal. However, because Mr.
Wright’s motion was untimely and he did not make a showing of good cause, this Court denied
the motion.
Mr. Wright’s Motion to Correct Void Sentences and/or Judgments
{¶7} On November 8, 2019, Mr. Wright, pro se, filed a motion to correct void
sentences and/or judgments. Mr. Wright argued he “fully comprehends the distinction” between
4
matters that: (1) can only be raised on direct appeal; (2) are only appropriate in a postconviction
petition pursuant to R.C. 2953.21; and (3) can be raised at any time. Further, Mr. Wright
indicated the “contentions” set forth in his motion could be argued anytime, and therefore are not
barred by the doctrine of res judicata. Mr. Wright raised seven grounds for relief alleging: (1)
his right to a fair trial and due process had been violated; (2) constitutional issues regarding his
sentence and convictions; (3) and the indictment was fatally defective.1
{¶8} The State opposed Mr. Wright’s motion arguing, pursuant to R.C. 2953.21, it is
actually an untimely petition for postconviction relief and Mr. Wright’s grounds for relief are
barred by the doctrine of res judicata. Specifically, the State indicated that Mr. Wright’s grounds
for relief rely on evidence in the record at the time of Mr. Wright’s direct appeal. As such, the
State sought dismissal of Mr. Wright’s motion.
{¶9} Mr. Wright also filed a supplement to his motion to correct void sentences and/or
judgment. The supplement included ground for relief number seven, which Mr. Wright claims
was incorrectly excluded from the prior motion. Mr. Wright’s allegations, in ground for relief
number seven, relate to a supplemental indictment filed in the case. For the same reasons stated
in its prior opposition, the State moved to dismiss this supplemental filing.
{¶10} Pursuant to R.C. 2953.21, the trial court reclassified Mr. Wright’s motion as an
untimely petition for postconviction relief. In so doing, the trial court explained:
[Mr. Wright’s] [petition] pertain[s] to irregularities in the indictment, the verdict
forms, and the sentence that was imposed in this case on May 21, 2014. [Mr.
Wright] claims sentencing violations and seeks post-conviction relief in his
[petition].
***
1
We note, in his motion to correct void sentences and/or judgments, Mr. Wright
misnumbered his grounds for relief as one, two, three, four, five, six, and eight.
5
[Mr. Wright’s] petition was filed well over 365 days (actually, over five years)
after the transcript of the proceedings was filed in the Court of Appeals during his
direct appeal, and therefore is not timely filed.
However, the trial court further indicated that even if Mr. Wright’s petition were timely, it still
would not have been successful. The trial court stated:
[Mr. Wright’s] arguments pertaining to the irregularities in the proceedings and
the alleged error(s) committed by the trial court judge are arguments that could
have been raised on [direct] appeal. * * *
[Mr. Wright] was present throughout his trial and at his sentencing, and his case
was appealed to the Ninth District Court of Appeals. [Mr. Wright’s] current
arguments are barred by res judicata. In order to avoid dismissal of a post-
conviction relief [petition] on res judicata grounds, the evidence supporting the
petition’s claims must be competent, relevant, and material evidence outside of
the trial court’s record, and it must not be evidence that existed or was available
for use at the time of trial. * * *
[Mr. Wright’s] claims all relate to issues that occurred during his trial and/or
sentencing, and are demonstrated in the [c]ourt’s record. [Mr. Wright’s] petition
fails to set out “sufficient operative facts” to establish substantive grounds for
relief. All of his claims are barred by res judicata.
{¶11} Mr. Wright now appeals raising eight assignments of error for our review.2
Because our analysis of Mr. Wright’s assignments of error is identical, we consolidate our
discussion below.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED WHEN IT SENTENCED [MR. WRIGHT]
ON THE KIDNAPPING OFFENSE, IN VIOLATION OF THE DOUBLE
JEOPARDY AND DUE PROCESS CLAUSES OF THE OHIO AND
UNITED STATES CONSTITUTIONS, BECAUSE IT IS AN ALLIED
OFFENSE OF SIMILAR IMPORT UNDER [R.C. 2941.25].
2
Mr. Wright’s assignments of error closely correspond with his claims for relief as stated
in his postconviction petition.
6
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED WHEN IT SENTENCED [MR. WRIGHT]
ON THE AGGRAVATED BURGLARY AND AGGRAVATED ROBBERY
OFFENSES, IN VIOLATION OF THE DOUBLE JEOPARDY AND DUE
PROCESS CLAUSES OF THE OHIO AND UNITED STATES
CONSTITUTIONS, BECAUSE THEY ARE ALLIED OFFENSE OF
SIMILAR IMPORT UNDER [R.C. 2941.25].
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED WHEN IT SENTENCED [MR. WRIGHT]
ON KIDNAPPING IN VIOLATION OF [R.C. 2905.01(C)], A FELONY OF
THE SECOND DEGREE, WHICH IS MANDATED WHEN “THE
OFFENDER RELEASES THE VICTIM IN A SAFE PLACE
UNHARMED.”
ASSIGNMENT OF ERROR IV
THE TRIAL COURT VIOLATED R.C. 2945.75 AND DENIED [MR.
WRIGHT’S] RIGHTS TO DUE PROCESS AND TRIAL BY JURY UNDER
THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE
CONSTITUTION OF THE UNITED STATES, AS WELL AS ARTICLE I,
SECTIONS 5, 10, AND 16 OF THE OHIO CONSTITUTION, WHEN IT
CONVICTED HIM OF, AND SENTENCED HIM ON, THREE FIRST
DEGREE FELONY COUNTS OF AGGRAVATED ROBBERY IN THE
ABSENCE OF A JURY VERDICT SETTING FORTH THE DEGREE OF
THE OFFENSE OR A STATEMENT THAT THE REQUIRED
AGGRAVATING ELEMENT(S) HAD BEEN FOUND BY THE JURY.
ASSIGNMENT OF ERROR V
[SAME AS ERROR 4 BUT FOR AGGRAVATED BURGLARY OFFENSE.]
ASSIGNMENT OF ERROR VI
THE INDICTMENT IS FATALLY DEFECTIVE BECAUSE IT ALLEGES
MULTIPLE, IDENTICAL, AND UNDIFFERENTIATED CHARGES
(COUNTS 1, 2, AND 3), IN VIOLATION OF THE DOUBLE JEOPARDY
AND DUE PROCESS CLAUSES OF THE OHIO AND UNITED STATES
CONSTITUTIONS.
7
ASSIGNMENT OF ERROR VII
THE INDICTMENT IS FATALLY DEFECTIVE IN REGARD[] TO THE
FIREARM SPECIFICATIONS, AS THE STATUTORY REQUIREMENTS
OF R.C. 2941.145 HAVE NOT BEEN SATISFIED.
ASSIGNMENT OF ERROR VIII
THE JUDGMENT OF CONVICTION AND SENTENCE IN THE
INSTANT CASE (LABELED “JOURNAL ENTRY”) DOES NOT COMPLY
WITH [CRIM.R. 32(C)], IN VIOLATION OF [MR. WRIGHT’S] DUE
PROCESS RIGHTS UNDER THE OHIO AND UNITED STATES
CONSTITUTIONS.
{¶12} As a preliminary matter, this Court must consider the nature of Mr. Wright’s
motion at issue in this appeal. R.C. 2953.21(A)(1)(a)(i) provides:
A person in any of the following categories may file a petition in the court that
imposed sentence, stating the grounds for relief relied upon, and asking the court
to vacate or set aside the judgment or sentence or to grant other appropriate relief:
Any person who has been convicted of a criminal offense * * * and who claims
that there was such a denial or infringement of the person’s rights as to render the
judgment void or voidable under the Ohio Constitution or the Constitution of the
United States[.]
Further, “‘[a] vaguely titled motion, including a motion to correct or vacate a judgment or
sentence,’ may be treated as a petition for postconviction relief under R.C. 2953.21(A)(1) when
the motion was filed after a direct appeal, alleged a denial of constitutional rights, sought to
render the judgment void or voidable, and requested that the judgment and sentence be vacated.”
State v. Payne, 9th Dist. Summit No. 29714, 2020-Ohio-4804, ¶ 6, quoting State v. Davis, 9th
Dist. Medina No. 15CA0004-M, 2015-Ohio-5182, ¶ 6, citing State v. Reynolds, 79 Ohio St.3d
158, 160 (1997). “This Court has characterized similar motions as petitions for postconviction
relief.” Payne at ¶ 6, citing State v. Walker, 9th Dist. Summit No. 29151, 2019-Ohio-605, ¶ 7.
Based upon the record, Mr. Wright’s motion is appropriately considered to be a petition for
postconviction relief.
8
{¶13} R.C. 2953.21(A)(2) provides, in relevant part, that a petition for postconviction
relief “shall be filed no later than three hundred sixty-five days after the date on which the trial
transcript is filed in the court of appeals in the direct appeal of the judgment of conviction or
adjudication[.]” Further, in accordance with R.C. 2953.23(A)(1), a court may not entertain an
untimely petition for postconviction relief unless both of the following apply:
(a) [e]ither 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 Supreme 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) [t]he 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[.]
Indeed, as this Court has previously stated, “a petitioner’s failure to satisfy R.C. 2953.23(A)
deprives a trial court of jurisdiction to adjudicate the merits of an untimely or successive
postconviction petition.” State v. Little, 9th Dist. Lorain No. 20CA011662, 2021-Ohio-1446, ¶
9, quoting State v. Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, ¶ 36.
{¶14} Further, a petition for postconviction relief may be properly dismissed without a
hearing on the basis of res judicata. See State v. Palmer, 9th Dist. Summit No. 28723, 2018-
Ohio-1486, ¶ 18 citing State v. Griffin, 9th Dist. Lorain No. 14CA010680, 2016-Ohio-2988, ¶
14. 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 the trial, which resulted in that judgment of
conviction, or on an appeal from that judgment.
9
State v. Perry, 10 Ohio St.2d 175 (1967), paragraph nine of the syllabus. “To avoid the
preclusive effect of res judicata, [postconviction] relief claims must be ‘based on evidence
outside of the original record that existed during direct appellate proceedings.’” Palmer at ¶ 18,
quoting State v. Bulls, 9th Dist. Summit No. 27713, 2015-Ohio-5094, ¶ 9.
{¶15} Here, the transcripts in Mr. Wright’s direct appeal were filed with this Court on
September 16, 2014. As such, Mr. Wright had until September 16, 2015 to timely file his
petition for postconviction relief. Mr. Wright, however, filed his petition on November 8, 2019,
which is well beyond three hundred sixty-five days after the date the transcripts were filed in his
direct appeal. Moreover, pursuant to R.C. 2953.23(A)(1)(a), Mr. Wright did not argue he was
unavoidably prevented from the discovery of facts which formed the basis of his claims for
relief, or that the United States Supreme Court recognized a new federal or state right that
applied retroactively to him. Therefore, the trial court lacked jurisdiction to decide Mr. Wright’s
application on its merits because it was untimely and none of the narrow exceptions applied.
{¶16} As indicated by the trial court, even if Mr. Wright’s application had been timely,
all of the alleged issues raised by Mr. Wright in his petition for postconviction relief, regarding
his charges, trial, and sentence, are based upon evidence that existed at the time of his direct
appeal. Specifically, the indictments, trial and sentencing transcripts, and judgment of
conviction were all part of the original record in this matter. Indeed, Mr. Wright could have
raised all of these alleged issues in his direct appeal. Thus, as explained above, these issues are
now barred by the doctrine of res judicata.
{¶17} Lastly, in spite of Mr. Wright’s arguments otherwise, “[a] sentence is only void
‘when a sentencing court lacks jurisdiction over the subject-matter of the case or personal
jurisdiction over the accused.’” Payne at ¶ 10, quoting State v. Harper, 160 Ohio St.3d 480,
10
2020-Ohio-2913, ¶ 42. As indicated by the record, Mr. Wright’s arguments do not implicate the
subject matter or personal jurisdiction of the trial court and his sentence is not void.
{¶18} Thus, for the reasons stated above, the trial court did not err in denying Mr.
Wright’s petition for postconviction relief as untimely and barred by the doctrine of res judicata.
{¶19} Accordingly, Mr. Wright’s eight assignments of error are overruled.
III.
{¶20} Mr. Wright’s assignments of error are overruled and the judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
BETTY SUTTON
FOR THE COURT
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CARR, P. J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
DEMARCO WRIGHT, Pro se, Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee.