State v. Williams , 2013 Ohio 2989 ( 2013 )

[Cite as State v. Williams, 2013-Ohio-2989.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
LAWRENCE COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : Case No. 12CA22
vs.
:
TIMOTHY T. WILLIAMS, DECISION AND JUDGMENT ENTRY
:
Defendant-Appellant.
:
_________________________________________________________________
APPEARANCES:
APPELLANT PRO SE: Timothy T. Williams, #638-889, P.O. Box 5500, Chillicothe, Ohio
45601, Pro Se
COUNSEL FOR APPELLEE: J.B. Collier, Jr., Lawrence County Prosecuting Attorney,
and Robert C. Anderson, Lawrence County Assistant
Prosecuting Attorney, Lawrence County Courthouse, One
Veterans Square, Ironton, Ohio 45638
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 6-27-13
ABELE, J.
{¶ 1} This is an appeal from a Lawrence County Common Pleas Court judgment that
overruled a “motion to vacate” filed by Timothy T. Williams, defendant below and appellant
herein. Appellant assigns the following errors for review:1:
FIRST ASSIGNMENT OF ERROR:
“INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL ON
1
Appellant’s brief does not contain a separate statement of the assignments of error as App.R. 16(A)(3) requires.
Thus, we take these assignments of error from scattered portions of his argument.
LAWRENCE, 12CA22 2
NOVEMBER 4, 2010.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT COMMITTED PLAIN ERROR BY NOT
TREATING THE FIVE OFFENSES AS ALLIED OFFENSES OF
SIMILAR IMPORT.”
THIRD ASSIGNMENT OF ERROR:
“THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
DISMISSING THE APPELLANT [sic] MOTION TO VACATE,
R.C. 2953.21 FILED ON SEPT. 5, 2012.”
FOURTH ASSIGNMENT OF ERROR:
“APPELLANT [sic] MOTION TO VACATE R.C. 2953.21 WAS
FACIALLY VALID, PURSUANT TO R.C. 2953.23(A)(1)(2),
[sic] AND THE MARCH 21, 2012 [sic] OF THE U.S. SUPREME
COURT DECISION, MISSOURI -v- FRYE, 132 S. Ct. 1399.”
{¶ 2} In 2010, appellant pled guilty, and was convicted, of three counts of aggravated
drug trafficking and two counts of aggravated possession of drugs. Appellant received a
cumulative eight year sentence. No appeal was taken from that judgment.
{¶ 3} In 2011, appellant filed a motion to vacate sentence and asserted various
arguments including, inter alia, that some of the five charges are allied offenses of similar import
and should have merged for purposes of sentencing. The appellee agreed and the trial court
ultimately ruled that counts two and four of the indictment merged, as well as counts three and
five. The trial court issued a new entry to that effect on November 10, 2011, but nevertheless
imposed an eight year cumulative total of imprisonment.
{¶ 4} We vacated that judgment in State v. Williams, 4th Dist. No. 11CA25,
2012-Ohio-3401 (Williams I), for two reasons. First, the motion to vacate was, in fact, a petition
LAWRENCE, 12CA22 3
for postconviction relief and was required to be filed no later than one hundred eighty days after
his conviction. It was not. Furthermore, appellant also failed to satisfy the criteria for late
filing under either R.C. 2953.23(A)(1) or R.C. 2953.23(A)(2). Williams I, at ¶¶11-13. Second,
we held that the trial court lacked jurisdiction to modify its own judgment under the
circumstances of the case. Id. at ¶¶10&14.
{¶ 5} On September 5, 2012, less than two months after our decision in that case,
appellant filed the present “motion to vacate” (or petition for postconviction relief). This time,
appellant argued that he should be allowed to file out of rule pursuant to 2953.23(A)(1) because
(1) he was “unavoidably prevented from discovery of the facts” necessary to present his claim,
and (2) the United States Supreme Court, in 2012, created a new federal right that applied to him
retrospectively.
{¶ 6} Eight days later, on September 13, 2012, the trial court overruled the motion.
The court reasoned that our decision in Williams I is “dispositive” of the issues raised in
appellant’s motion. This appeal followed.
I
{¶ 7} We jointly consider appellant's first two assignments of error because they relate
to the alleged problems with his original conviction. As noted earlier, however, appellant did
not appeal his original conviction. His claims of ineffective assistance of trial counsel and plain
error could have been, and should have been, raised in a first appeal of right. The doctrine of res
judicata now bars appellant from raising them at this stage of the proceeding. State v. Lofton, 4th
LAWRENCE, 12CA22 4
Dist. No. 12CA21, 2013-Ohio-1121, at ¶8; State v. Beach, 4th Dist. No. 11CA4,
2012–Ohio–1630, at ¶5, fn. 2; State v. Evans, 4th Dist. No. 09CA20, 2010–Ohio–5838, at ¶12.
{¶ 8} Thus, we overrule appellant’s first and second assignments of error for this
reason.
II
{¶ 9} We jointly consider appellant’s third and fourth assignments of error because they
address the issue of whether the trial court correctly overruled his petition for postconviction
relief. We conclude that it did.
{¶ 10} As we noted in Williams I, appellant filed his petition out of rule. Consequently,
appellant has to satisfy either R.C. 2953.23(A)(1) or R.C. 2953.23(A)(2) before the trial court
could consider it on the merits. 2012-Ohio-3401, at ¶12. Further, we noted that appellant “did
not even attempt to satisfy” either of those two statutes. Id. at ¶13. This time, appellant
apparently made an attempt, even if the attempt fell far short of what is required.
{¶ 11} Appellant's petition argued that he should have been permitted to file out of rule
on the basis of R.C. 2953.23(A)(1). That statute states in pertinent part:
“(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 or a second
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 Supreme Court recognized a new federal or state right that applies
LAWRENCE, 12CA22 5
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
petitioner guilty of the offense of which the petitioner was convicted or, if the
claim challenges a sentence of death that, but for constitutional error at the
sentencing hearing, no reasonable factfinder would have found the petitioner
eligible for the death sentence.”
{¶ 12} At the outset, we note that appellant had to satisfy both (A)(1)(a) and (A)(1)(b).
Our review of the petition's “Extension of Time Requirement” portion reveals no argument that
but for constitutional error at trial, no reasonable factfinder would have found him guilty. Thus,
his petition fails on that basis alone.
{¶ 13} In addition, appellant's “Extension of Time Requirement” alleges that he “was
unavoidably prevented from discovery of the facts” upon which he relies to make his claim.
However, appellant fails to explain (1) what, precisely, those facts are, and (2) why, exactly, he
was unavoidably prevented from discovering them. We emphasize that the language of R.C.
2953.23(A)(1) is not mere “magic words” to simply be included or recited in petitions for
postconviction relief to avoid the time limit. It is, instead, a list of procedural hurdles that must
be overcome to file for postconviction relief out of rule.
{¶ 14} Finally, appellant also cites Missouri v. Frye, ___ U.S. ___, 132 S.Ct. 1399, 182
L.Ed.2d 379 (2012), as creating a new federal Constitutional right that applies retrospectively.
Appellant’s reliance on this case is misplaced, however. First, the “right” in that case involved
is the right to effective assistance of trial counsel. This is not a new right, but, rather, one that
state and federal courts have recognized for decades.
{¶ 15} Second, the circumstances at issue in Frye concerned defense counsel’s failure to
LAWRENCE, 12CA22 6
communicate plea offers to the appellant before the offers expired. Justice Kennedy, writing for
the majority, stated “[t]his Court now holds that, as a general rule, defense counsel has the duty
to communicate formal offers from the prosecution to accept a plea on terms and conditions that
may be favorable to the accused.” 132 S.Ct. at 1408.
{¶ 16} In the case at bar, nowhere in the “Extension of Time Requirement” set out in his
petition does appellant assert that his defense counsel failed to communicate to him a plea offer.
To the contrary, the November 4, 2010 hearing transcript shows that trial counsel agreed that the
State's sentencing recommendations “accurately portrays the plea negotiations.” Here, the gist
of both postconviction motions is that appellant is unhappy with the plea agreement.
Accordingly, Frye does not support appellant’s arguments.2 Generally, a ruling on a
postconviction relief motion should not be reversed absent an abuse of a trial court's discretion.
See State v. Fisk, 4th Dist. No. 11CA4, 2011-Ohio-6116, at ¶6; State v. Hicks, 4th Dist. No.
09CA15, 2010-Ohio-89, at ¶11. An abuse of discretion is more than an error of law or
judgment; rather, it implies that a court's attitude is unreasonable, arbitrary or unconscionable.
See State v. Clark, 71 Ohio St.3d 466, 470, 644 N.E.2d 331 (1994); State v. Moreland, 50 Ohio
St.3d 58, 61, 552 N.E.2d 894 (1990).
{¶ 17} For all of these reasons, we find no merit to appellant’s third and fourth
assignments of error and they, too, are hereby overruled. Consequently, we find no error, nor an
abuse of discretion, in the trial court’s decision to overrule appellant's motion. Accordingly,
2
Even assuming, arguendo, that counsel had failed to relay a plea offer to appellant, at least one Ohio appellate
district has concluded that Missouri v. Frye does not create a new retrospective right for purposes of R.C. 2953.23(A)(1). See
State v. Hicks, 8th Dist. No. 99119, 2013-Ohio-1904, at ¶14
LAWRENCE, 12CA22 7
we hereby affirm the trial court's judgment.
JUDGMENT AFFIRMED.
[Cite as State v. Williams, 2013-Ohio-2989.]
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellee recover of appellant costs
herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Lawrence County
Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate
pursuant to Rule 27 of the Rules of Appellate Procedure.
Hoover, J.: Concurs in Judgment & Opinion
McFarland, P.J.: Concurs in Judgment Only
For the Court
BY:
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.