State v. Creech , 2020 Ohio 582 ( 2020 )

[Cite as State v. Creech, 2020-Ohio-582.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : Case No. 19CA3877
vs. :
SCOTT D. CREECH, : DECISION AND JUDGMENT
ENTRY
Defendant-Appellant. :
_________________________________________________________________
APPEARANCES:
Scott D. Creech, Chillicothe, Ohio, pro se.
Shane A. Tieman, Scioto County Prosecuting Attorney, and Jay Willis, Scioto County Assistant
Prosecuting Attorney, Portsmouth, Ohio, for appellee.
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 2-12-20
ABELE, J.
{¶ 1} This is an appeal from a Scioto County Common Pleas Court judgment that denied a
“motion to vacate void judgment” filed by Scott D. Creech, defendant below and appellant herein.
Appellant assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION
BY DENYING THE DEFENDANT’S PROPERLY FILED
MOTION TO VACATE A VOID JUDGMENT WHICH WAS
BASED ON FRUITS OF POISONOUS TREE, AMOUNTING TO A
FOURTEENTH AMENDMENT VIOLATION OF DEFENDANT’S
DUE PROCESS RIGHTS.”
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SECOND ASSIGNMENT OF ERROR:
“TRIAL AND APPELLATE COUNSELS PROVIDED
INEFFECTIVE ASSISTANCE OF COUNSEL - IN VIOLATION
OF THE SIXTH AMENDMENT - THROUGHOUT THE
PROCESS, WHEN NO ARGUMENTS AGAINST THE USE OF
ILLEGALLY SEIZED EVIDENCE WAS INTRODUCED TO THE
GRAND JURY AND AT TRIAL - WITHOUT OBJECTIONS
FROM TRIAL COUNSEL OR CITED AS A ASSIGNMENT OF
ERROR BY COUNSEL WHO KNOWINGLY PERMITTED A
MANIFEST INJUSTICE TO OCCUR.”
THIRD ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED WHEN IT FAILED TO PROVIDE
RELIEF FROM SUPPRESSION OF SAID EVIDENCE, WHEN
THE COURT KNOWINGLY ALLOWED TRIAL COUNSEL’S
FAILURE TO PROSECUTE DEFENDANT’S PROPERLY FILED
MOTION TO SUPPRESS, WHEN PRIMA FACIE EVIDENCE
EXISTED IN SUPPORT OF THE UNLAWFUL SEARCH AND
LATER SEIZURE OF EVIDENCE FROM THE RESIDENCE.”
{¶ 2} On April 30, 2008, the Scioto County Grand Jury returned an indictment that charged
appellant with (1) the illegal possession of chemicals for the manufacture of drugs, (2) the illegal
manufacture of drugs, (3) four counts of having a weapon while under a disability (counts three
through six), (4) three counts of unlawful possession of dangerous ordnance (counts seven through
nine), (5) illegally manufacturing or possessing explosives, and (6) trafficking in
methamphetamine.1
{¶ 3} Subsequently, the jury found appellant guilty of (1) the illegal possession of chemicals
for the manufacture of methamphetamine, (2) the illegal manufacture of drugs, (3) having a weapon
1
The trial court later dismissed the trafficking count.
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(a rifle) while under disability, (4) having a weapon (detonation cord) while under disability, (5)
having a weapon (sensitized ammonium nitrate) while under disability, (6) having a weapon
(blasting caps) while under disability, (7) unlawful possession of dangerous ordnance (sensitized
ammonium nitrate), (8) unlawful possession of dangerous ordnance (blasting caps), (9) unlawful
possession of dangerous ordnance (detonation cord), and (10) illegally manufacturing or processing
explosives.
{¶ 4} On October 10, 2008, the trial court sentenced appellant to serve a total of 19 years in
prison as follows: (1) five years for the illegal possession of chemicals for manufacture of
methamphetamine (count one), (2) six years for the illegal manufacture of drugs (count two), (3)
two years for having a weapon (rifle) while under disability (count three), (4) four years on each of
the three having a weapon while under disability offenses that involved the detonation cord, the
blasting caps, and the sensitized ammonium nitrate (counts four through six), (5) 11 months for each
of the offenses of unlawful possession of dangerous ordnance (counts seven through nine), and (6)
seven years for illegally manufacturing or processing explosives (count ten). The court ordered (1)
the sentences for counts one and two to be served concurrently, (2) the sentence for count three to
be served consecutively to counts one and two, (3) the sentences for counts four, five, and six to be
served concurrently with each other, but consecutively to counts one and two and to count three, (4)
the sentences for counts seven, eight, and nine to be served concurrently with each other and
concurrently with counts four through six, and (5) the sentence for count ten to be served
consecutively to counts one and two, count three, and counts four, five, and six.2
2
These facts are taken largely from our decision in State v. Creech, 4th Dist. Scioto No. 09CA3291, 2010-
Ohio-2553 (Creech I).
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{¶ 5} On appeal, this court affirmed in part, reversed in part, and remanded. Specifically,
we held that the convictions for having a weapon while under disability that stemmed from explosive
materials (detonation cord, blasting caps, and sensitized ammonium nitrate) must be merged into the
having a rifle while under disability count. Because the trial court sentenced appellant on each of
these three offenses, we reversed the trial court’s judgment on counts four, five, and six and
remanded for resentencing. We further reversed and remanded the trial court’s judgment of
conviction and sentence for counts seven, eight, and nine, because we concluded that the three
unlawful possession counts must be merged. State v. Creech, 4th Dist. Scioto No. 09CA3291,
2010-Ohio-2553, ¶ 26 and 37 (jurisdiction denied, State v. Creech, 126 Ohio St. 3d 1600, 2010-Ohio-
4928, 935 N.E.2d 46). (Creech I)
{¶ 6} On June 1, 2011, appellant filed a motion “to strike and vacate the supposed” jury
verdicts and sentencing entry. On July 4, 2011, appellant also filed a motion for leave to file
“delayed petition for post-conviction relief.” On July 5, 2012, the trial court overruled the motion
to vacate and denied leave to file a post-conviction relief petition out of rule. This court affirmed
the trial court’s judgment. State v. Creech, 4th Dist. Scioto No. 12CA3500, 2013-Ohio-3791
(jurisdiction denied, State v. Creech, 137 Ohio St. 3d 1475, 2014-Ohio-176, 2 N.E.3d 269, and
certiorari denied, Creech v. Ohio, 135 S. Ct. 250, 190 L. Ed. 2d 186). (Creech II)
{¶ 7} On November 19, 2015, appellant filed a pro se motion to dismiss based on alleged
due process and speedy trial violations. The trial court held a hearing on December 21, 2015 on the
resentencing, and, on December 23, 2015, overruled and dismissed appellant’s motion to dismiss.
Subsequently, this court affirmed the trial court’s judgment. State v. Creech, 4th Dist. Scioto No.
16CA3730, 2017-Ohio-6951, (jurisdiction denied by State v. Creech, 151 Ohio St. 3d 1428, 2017-
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Ohio-8371, 84 N.E.3d 1065, and jurisdiction denied by State v. Creech, 152 Ohio St. 3d 1466, 2018-
Ohio-1795, 97 N.E.3d 502) (Creech III). After this court affirmed the trial court’s judgment,
appellant filed a timely pro se App.R. 26(B) application to reopen. We declined to grant
defendant’s application to reopen the appeal.
{¶ 8} On September 24, 2018, appellant again filed a motion to vacate his conviction and
sentence. On May 8, 2019, the trial court denied the motion. This appeal followed.
{¶ 9} Because appellant’s first and third assignments of error raise related issues, we address
them together. In his first assignment of error, appellant asserts that the trial court erred and abused
its discretion by denying his “properly filed motion to vacate a void judgement which was based on
fruits of poisonous tree, amounting to a Fourteenth Amendment violation” of appellant’s due process
rights. In his third assignment of error, appellant contends that the trial court “erred when it failed
to provide relief from illegally obtained evidence, since the court knowingly or should have known
due to previous interaction with this case.”
{¶ 10} The trial court construed appellant’s motion as a petition for post-conviction relief
and pointed out that appellant did not request leave to file a delayed petition. In addition to the
timeliness issue and the failure to request leave to file a delayed petition, the trial court also held:
[T]he Defendant has already raised, or had the opportunity on multiple occasions, to
raise these issues before the Fourth District Court of Appeals. Indeed, in 2013-Ohio-
3791 he directly raised the issue that the judgment was void. As the Fourth District
stated then, “Defendant could also have raised these issues in Creech I, but did not.”
State v. Creech, 2013-Ohio-3791, ¶ 33. Defendant has had multiple appeals before
the Fourth District. He has either already raised, or could have raised, these
arguments before the present filing. As such, his current claim is barred by res
judicata.
The motion will be denied as Defendant has not asked leave to file a delayed petition
for post conviction relief and because the issues he attempts to raise either have been
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or already should have been raised on his direct appeal.
{¶ 11} We initially observe that this appeal is one of many of appellant’s appeals to this
court. In addition to appellant’s failure to obtain leave to file a delayed petition, under 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 claimed lack of due process that was raised or could have been raised by the defendant at
the trial, * * * or on an appeal from that judgment.” State v. Szefcyk, 77 Ohio St. 3d 93, 95, 671
N.E.2d 233 (1996), citing State v. Perry, 10 Ohio St. 2d 175, 226 N.E.2d 103 (1967), paragraph nine
of the syllabus. “‘Res judicata does not, however, apply only to direct appeals, but to all post-
conviction proceedings in which an issue was or could have been raised.’” State v. Heid, 4th Dist.
Scioto No. 15CA3710, 2016-Ohio-2756, ¶ 18, quoting State v. Montgomery, 2013-Ohio-4193, 997
N.E.2d 579, ¶ 42 (8th Dist.)
{¶ 12} As the trial court observed, in Creech II (2013-Ohio-3791) appellant raised the issue
that the trial court’s judgment is void. As the trial court held, criminal defendants may not raise
issues that either have, or could have, been raised and resolved. To the extent that appellant’s
motion raises various constitutional claims, his request constitutes an untimely petition for post-
conviction relief that the trial court could not address. R.C. 2953.23(A)(1) and (2); State v.
Hamilton, 4th Dist. Hocking No. 16CA17, 2017-Ohio-1294, ¶ 20; State v. McDougald, 4th Dist.
Scioto No. 16CA3736, 2016-Ohio-5080, ¶ 22-23. Moreover, because appellant either raised, or
could have raised, these issues in his prior direct appeal, we agree with the trial court that res judicata
bars appellant’s claims set forth in his first and third assignments of error.
{¶ 13} Thus, we overrule appellant’s first and third assignments of error.
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II.
{¶ 14} In his second assignment of error, appellant asserts that both trial and appellate
counsel “provided ineffective assistance of counsel- in violation of the Sixth Amendment -
throughout the process, when no arguments against the use of illegally seized evidence was
introduced to the Grand Jury and at trial - without objections from trial counsel or cited as a
assignment of error by counsel who knowingly permitted a manifest injustice to occur.”
{¶ 15} To the extent that appellant previously raised the alleged ineffectiveness of multiple
attorneys involved both at trial and during the appellate process, this issue has been addressed in
appellant’s pro se App.R. 26(B) application to reopen appeal, as well as in Creech I. Moreover,
appellate counsel is not required to raise and argue assignments of error that are without merit, nor
is counsel ineffective for the failure to raise every conceivable assignment of error. State v. Worley,
8th Dist. Cuyahoga No. 103105, 2017-Ohio-649, ¶ 4, citing Jones v. Barnes, 463 U.S. 745, 103 S. Ct.
3308, 77 L. Ed. 2d 987 (1983); State v. Gumm, 73 Ohio St. 3d 413, 653 N.E.2d 253 (1995). Finally,
to the extent that this assignment of error also raises a constitutional issue, the trial court properly
concluded that the request constitutes an untimely petition for post-conviction relief that the trial
court could not address. Therefore, we conclude that appellant’s second assignment of error is
without merit.
{¶ 16} Accordingly, based upon the foregoing reasons, we overrule appellant’s assignments
of error and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
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JUDGMENT ENTRY
It is ordered that the judgment be affirmed and appellee recover of appellant the 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 Scioto County
Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted by the
trial court or this court, it is temporarily continued for a period not to exceed sixty days upon the bail
previously posted. The purpose of a continued stay is to allow appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of the proceedings in that court. If a
stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period,
or the failure of the appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-
five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of
Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty
days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules
of Appellate Procedure.
Smith, P.J. & Hess, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele, Judge
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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.