State v. Tate , 2015 Ohio 3859 ( 2015 )

[Cite as State v. Tate, 2015-Ohio-3859.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. John W. Wise, J.
:
-vs- :
: Case No. 15-CA-40
LLOYD TATE :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Richland County
Court of Common Pleas, Case No. 2012-
CR-0666D
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 21, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DANIEL M. ROGERS LLOYD TATE #A634-143
Assistant Prosecuting Attorney Marion Correctional Institution
38 S. Park Street Box 57
Mansfield, OH 44902 Marion, OH 43301-0057
[Cite as State v. Tate, 2015-Ohio-3859.]
Gwin, P.J.
{¶1} Appellant Lloyd Tate appeals the April 9, 2015 judgment entry of the
Richland County Court of Common Pleas denying his motion for post-conviction relief.
Appellee is the State of Ohio.
Procedural History
{¶2} A statement of facts underlying appellant’s original convictions is
unnecessary to our disposition of this appeal.
{¶3} On October 9, 2012, appellant was indicted on one account of attempted
murder, a felony of the first degree, and two counts of felonious assault, one for causing
serious physical harm and one for use of a deadly weapon, both felonies of the second
degree. A repeat violent offender specification and a vehicle forfeiture specification was
attached to each count of the indictment.
{¶4} After trial, a jury found appellant guilty of all three counts in the indictment.
The trial court then heard arguments regarding the repeat violent offender specification.
The State of Ohio offered appellant’s conviction for robbery from 1989. The trial court
found appellant guilty of the repeat violent offender specifications. The trial court also
granted the forfeiture of appellant’s truck.
{¶5} The trial court sentenced appellant to eleven (11) years on the charge of
attempted murder and two (2) years on the repeat violent offender specification. The
felonious assault charges were found to be allied offenses to the attempted murder
charge.
{¶6} On January 25, 2013, appellant filed a notice of appeal to this Court of his
conviction and sentence. The transcript was filed on April 9, 2013. Appellant filed his
Richland County, Case No. 15-CA-40 3
brief with this Court on June 10, 2013, arguing, in part, that the trial court erred in finding
him to be a repeat violent offender and sentencing him to two years consecutive to the
maximum sentence on the attempted murder charge.
{¶7} On November 21, 2013, in State v. Tate, 5th Dist. Richland No. 13 CA 5,
2013-Ohio-5150, this Court affirmed appellant’s conviction, sentence, and repeat violent
offender finding and sentence. On August 29, 2014, appellant filed a motion for delayed
appeal with the Ohio Supreme Court. The motion was denied on October 22, 2014 in
State v. Tate, 140 Ohio St. 3d 1465, 2014-Ohio-4629, 18 N.E.2d 445. On March 23,
2015, appellant filed with this Court a motion to reopen his appeal, which was denied on
May 19, 2015. Appellant appealed the denial to the Ohio Supreme Court. The Ohio
Supreme Court declined to accept jurisdiction of appellant’s appeal on August 26, 2015.
{¶8} Appellant filed a motion to correct sentence on September 18, 2014 with
the trial court. The State of Ohio filed a response. The trial court issued a judgment
entry denying appellant’s motion on April 9, 2015. The trial court found the motion to
correct sentence to be a petition for post-conviction relief pursuant to R.C. 2953.21.
The trial court first found the motion to be untimely, as the petition was not filed until
September 18, 2014 and a timely post-conviction relief petition had to be filed by April 9,
2014. Additionally, the trial court found res judicata applies because this Court
previously addressed and overruled appellant’s argument.
{¶9} Appellant appeals the April 9, 2015 judgment entry of the Richland County
Court of Common Pleas and assigns the following as error:
{¶10} “I. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED
PLAIN ERROR WHEN IT IMPOSED A SENTENCE FOR THE REPEAT VIOLENT
Richland County, Case No. 15-CA-40 4
OFFENDER SPECIFICATIONS THAT WERE CONTRARY TO LAW. O.R.C.
2929.14(B)(2)(b)/(D) and 2929.01(CC)(1)-(2); OHIO CONST., ARTICLE I, SECTION 10
AND 16 AND FOURTEENTH AMENDMENT TO THE UNITED STATES
CONSTITUTION.”
I.
{¶11} The trial court considered appellant’s “motion to correct sentence” as a
petition for post-conviction relief. Appellant does not assign as error the trial court’s
decision to consider his motion as a petition for post-conviction relief. In denying the
motion, the trial court stated that it considered the motion to be untimely.
{¶12} R.C. 2953.21(A)(2) governs the time within a petition for post-conviction
relief must be filed and provides as follows:
Except as otherwise provided in section 2953.23 of the Revised Code, a
petition under division (A)(1) of this section 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 * * *.
{¶13} In this case, the trial transcript in appellant’s direct appeal was filed on
April 9, 2013. Appellant filed his petition on September 18, 2014. Therefore, his
petition is not within the three hundred sixty five days after the date on which the trial
transcript was filed with this Court in his direct appeal and thus not in compliance with
the time frame as specified in R.C. 2953.21(A)(2).
{¶14} However, pursuant to R.C. 2953.23(A), the court may consider an
untimely petition for post-conviction relief:
Richland County, Case No. 15-CA-40 5
(A) Whether a hearing is or is not held on a petition filed pursuant to
section 2953.21 of the Revised Code, a court may not entertain a petition
filed after the expiration of the period prescribed in division (A) of that
section * * * 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 the 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 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 that petitioner was guilty of the
offense of which the petitioner was convicted of * * *.
(2) The petitioner was convicted of a felony, the petitioner is an
offender for whom DNA testing was performed * * * and analyzed in
the context of and upon consideration upon all available admissible
evidence related of the inmate’s case * * * and the results of the
DNA testing establish, by clear and convincing evidence, actual
Richland County, Case No. 15-CA-40 6
innocence of that felony offense * * *.
{¶15} In this case, appellant makes no allegation in his motion that results of
DNA testing establish, by clear and convincing evidence, actual innocence. Appellant
argues that he could not be sentenced to a repeat violent offender specification under
R.C. 2929.14(B)(2)(b) because his prior conviction was not within the last twenty years.
Further, that the prior offense of robbery was not proven to be a prior offense of
violence. These matters were all contained in the trial record and thus appellant cannot
show that he was unavoidably prevented from the discovery of the facts upon which he
relies on for relief or that this is newly-discovered evidence. Appellant does not set forth
any argument in his brief as to the delay in filing, why he meets the exception
requirements contained in R.C. 2953.23(A)(1) or (A)(2), or how the petition otherwise
complies with R.C. 2953.23(A)(1) or (A)(2). As such, appellant has failed to meet his
burden under R.C. 2953.23(A)(1) or (A)(2) to file an untimely petition for post-conviction
relief.
{¶16} In addition, any errors as to these issues either were or could have been
raised on direct appeal and are therefore barred under the doctrine of res judicata.
“Under the doctrine of res judicata, a final judgment of conviction bars the defendant
from raising and litigating in any proceeding, except an appeal from that judgment, any
defense or any claimed lack of due process that the defendant raised or could have
raised at the trial which resulted in that judgment of conviction or on appeal from that
judgment.” State v. Perry, 10 Ohio St. 2d 175, 226 N.E.2d 104 (1967). Conversely,
issues properly raised in a post-conviction petition are those that could not have been
raised on direct appeal because the evidence supporting the issues is outside the
Richland County, Case No. 15-CA-40 7
record. State v. Millanovich, 42 Ohio St. 2d 46, 325 N.E.2d 540 (1975). Appellant’s
arguments do not raise any issues that are dependent upon evidence outside the
record. Further, in appellant’s direct appeal, this Court found that the trial court did not
err in finding him to be a repeat violent offender and sentencing him to two years
consecutive to the maximum sentence on the attempted murder charge. Accordingly,
the arguments appellant makes either were or could have been raised and argued on
direct appeal.
{¶17} Upon review, we find that appellant has not satisfied the R.C.
2953.23(A)(1)(a) requirement that he was unavoidably prevented from discovery of the
facts upon which he relies to present his claims for post-conviction relief. Appellant
does not offer any evidence which was not already in the record before the trial court.
Further, the issues raised by appellant either were or could have been raised in his
direct appeal and are therefore res judicata. Thus, the trial court did not err in denying
appellant’s petition to correct sentence.
Richland County, Case No. 15-CA-40 8
{¶18} Appellant’s assignment of error is overruled and the April 9, 2015
judgment entry of the Richland County Court of Common Pleas is affirmed.
By: Gwin, P.J.,
Hoffman, J., and
Wise, J., concur