State ex rel. White v. Woods , 2018 Ohio 2954 ( 2018 )

[Cite as State ex rel. White v. Woods, 2018-Ohio-2954.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. Marcus D. White, :
Relator, :
v. : No. 17AP-620
Judge William H. Woods, : (REGULAR CALENDAR)
Respondent. :
D E C I S I O N
Rendered on July 26, 2018
On brief: Marcus D. White, pro se.
On brief: Ron O'Brien, Prosecuting Attorney, and Arthur J.
Marziale, Jr., for respondent.
IN MANDAMUS/PROCEDENDO
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
DORRIAN, J.
{¶ 1} Relator,1 Marcus D. White, an inmate of the Warren Correctional Institution
("WCI"), requests a writ of mandamus and/or procedendo ordering respondent, the
Honorable William H. Woods, a judge of the Franklin County Court of Common Pleas
("respondent") to issue a final appealable order in Franklin C.P. No. 03CR-7014, which
complies with R.C. 2505.02 and Crim.R. 32(C). Respondent requests this court dismiss the
action.
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,
the writ of mandamus/procedendo action was referred to a magistrate of this court. The
magistrate issued the attached decision, including findings of fact and conclusions of law,
1Marcus D. White is the relator in this case; however, in prior cases discussed herein, he was the appellant.
For ease of discussion, we refer to him hereafter as "White."
No. 17AP-620 2
and recommended this court grant respondent's motion to dismiss. The magistrate
reasoned the original action is barred because White had a plain and adequate remedy at
law which he exercised in his appeal to this court in State v. White, 10th Dist. No. 17AP-
538, 2017-Ohio-8750 ("White IV").2
{¶ 3} The criteria for granting mandamus was outlined by the Supreme Court of
Ohio in State ex rel. Priest v. Dankof, 143 Ohio St. 3d 82, 2015-Ohio-165, ¶ 2. "To obtain a
writ of mandamus, [relator] must establish a clear legal right to the requested relief, a clear
legal duty on the part of [respondent] to grant it, and the lack of an adequate remedy in the
ordinary course of the law." State ex rel. Waters v. Spaeth, 131 Ohio St. 3d 55, 2012-Ohio-
69, ¶ 6. In order to be entitled to a writ of procedendo, a relator must establish a clear legal
right to require that court to proceed, a clear legal duty on the part of the court to proceed,
and the lack of an adequate remedy in the ordinary course of law. State ex rel. Miley v.
Parrott, 77 Ohio St. 3d 64, 65 (1996). A writ of procedendo is appropriate when a court has
either refused to render a judgment or has unnecessarily delayed proceeding to judgment.
Id.
{¶ 4} White has filed objections to the magistrate's decision. In his objections,
White argues the trial court never issued a final appealable order in common pleas case No.
03CR-7014 and, therefore, the appellate court had no jurisdiction to make a ruling in White
IV and all prior appellate rulings related to common pleas case No. 03CR-7014 are nullities.
Pursuant to White, he could never have an adequate remedy at law by way of appeal because
there can be no appeal without a final appealable order that complies with R.C. 2505.02
and Crim.R. 32(C).
{¶ 5} In his complaint for mandamus/procedendo, White argued the judgment
entry issued in common pleas case No. 03CR-7014 does not comply with Crim.R. 32(C)
because: (1) the entry states that White was found guilty of R.C. 2903.02 Murder, although
the jury found him not guilty of the same, (2) the entry should have stated that White was
found guilty of R.C. 2903.02(B) Felony Murder, and should have stated that felonious
assault "to wit: Ms. Green" was the predicate offense of the Felony Murder charge, and (3)
2In this decision, we refer to White's different appeals as we did previously in our decision and memorandum
decisions in case No. 17AP-538.
No. 17AP-620 3
the entry did not sentence White or notify him of post-release control for the offense of
felonious assault "to wit: Ms. Green."
{¶ 6} According to White, the sentencing entry fails to set forth the fact of
conviction as required by Crim.R. 32(C).3 He further argues that, although the trial court's
entry denying his motion to vacate in 20124 explains the fact of his conviction for felony
murder pursuant to R.C. 2903.02(B), State v. Baker, 119 Ohio St. 3d 197, 2008-Ohio-3330,5
requires the fact of conviction be evident in one entry, not two. Finally, White argues that
because the trial court has previously denied his request for a judgment entry which
complies with Crim.R. 32(C), pursuant to our ruling in State v. Bonner, 10th Dist. No.
14AP-611, 2015-Ohio-1010, the appropriate remedy for him is to seek mandamus or
procedendo to compel the trial court to issue a compliant sentencing entry.
{¶ 7} Respondent did not file a memorandum contra White's objections. However,
in moving to dismiss, respondent argued White is attempting to achieve postconviction
relief beyond the time allotted to him pursuant to statute. Respondent noted White was
resentenced on October 20, 2006 in common pleas case No. 03CR-7014, and that now,
nearly 11 years later, he cannot seek to have his sentence modified. Respondent argued
further that res judicata applies because White did not seek appeal of his October 20, 2006
resentencing or timely file a postconviction petition.
{¶ 8} We agree with the magistrate that with this original action, White is
relitigating the same assignment of error he litigated in his appeal to this court in White IV.
3 When the original judgment entry (Aug. 4, 2005) and the re-sentencing entry (Oct. 24, 2006) were entered
in common pleas case No. 03CR-7014, Crim.R. 32(C) required: "A judgment of conviction shall set forth the
plea, the verdict, or findings, upon which each conviction is based, and the sentence." (Fn. omitted.) State v.
Lester, 130 Ohio St. 3d 303, 2011-Ohio-5204, ¶ 8. Crim.R. 32(C) was subsequently amended and now requires:
"A judgment of conviction shall set forth the fact of conviction and the sentence."
4 In denying White's September 13, 2012 motion to vacate, the trial court noted "[f]inally, the jury found the
Defendant guilty of the lesser included offense in Count One of Murder 2903.02(B). They specifically found
the predicate offense to be Felonious Assault [R.C.] 2903.11." (Common pleas case No. o3CR-7014 Dec. and
Entry Denying Deft.'s Mot. to Vacate.) This court affirmed the trial court's denial in State v. White, 10th Dist.
No. 12AP-1055, 2013-Ohio-2217 ("White III"). White filed an application for reconsideration yet did not
address therein the Baker arguments he raises now. (See June 6, 2013 App. for Recon. in White III.) White
appealed to the Supreme Court our denial of his application to reconsider but did not appeal our decision
entered May 30, 2013 in White III. The Supreme Court declined jurisdiction on the appeal of application to
reconsider.
5 Baker at ¶ 19 states "the judgment of conviction is a single document."
No. 17AP-620 4
White's assignment of error in White IV was difficult to decipher. He made numerous
arguments that the indictment in the case was deficient.6 White also, however, argued:
Thus, Appellant's direct appeal subsequent to that void
judgment is equally void, and it is as if the direct appeal never
occurred. Further, the Appellant's Judgment Entry is void on
its face, because it fails to set forth the fact of conviction.
When 1) it states Appellant was convicted of "§2903.02
Murder", a charge Appellant was found not guilty of. When
the Trial Court instructed the jury on Aggravated Murder (A)
(purposely w/prior) and Appellant was acquitted, Murder (A)
(purposely) and Appellant was acquitted, and Murder (B)
(proximate result) which Appellant was illegally convicted. 2)
fails to state the unindicted count of Felonious Assault to wit:
Ms. Green as the predicate offense/mens rea of the unindicted
Felony Murder. Fails to state Murder (A)/(purposely) nor
Felony Murder (B)/(proximate result) and therefore does not
comply with Crim. R. 32 (C). (See Ex. 1 proper
Judgment/Termination Entry, Count 6)
(Emphasis omitted.) (Sic passim.) (White's Appellate Brief in White IV at 15-16.) White
further argued:
It must also be noted that the doctrine of res judicata cannot
apply. As the judgment of conviction and sentence rendered by
the trial court is void, the judgment is not a "final" or
"appealable" order. * * * Appellant's direct appeal subsequent
to that void judgment is equally void, and it is as if the direct
appeal never occurred. In count one of the court's Judgment
Entry the court failed to state what subsection of Murder,
(Murder (A) purposely or Murder (B) proximate result)
Appellant was convicted of, or another count of felonious
assault to wit: Ms Green as the predicate offense/mens rea of
Felony Murder. Meaning the Court's Judgment Entry is void
on it's face, when it stated Appellant was "convicted of
§2903.02 Murder", a charge Appellant was found not guilty of.
(Emphasis omitted.) (Sic passim.) (White's Appellate Brief in White IV at 25-26.)
{¶ 9} In White IV, we addressed White's arguments regarding deficiencies in the
indictment and held that the untimeliness of his request for postconviction relief and res
judicata barred the same. We did not specifically address White's jurisdictional arguments
6 White also argued that "[t]he Appellant sentence is void when he was not sentenced to 2-8 years in prison or
notified of the Mandatory 5 years Post Release Control required by §2929(B)(3) for violating §2903.11(A)(1)
Felonious Assault to wit: Ms. Green." (Emphasis omitted.) (White's Appellate Brief in White IV at 15.)
No. 17AP-620 5
outlined above. White filed an application to reconsider and pointed out to the court that
it had failed to address the jurisdictional arguments outlined above. In denying the
application for reconsideration, we addressed the merits of White's jurisdictional
arguments outlined above. We stated:
In his application for reconsideration, appellant alleges that we
failed to sua sponte address or consider our own jurisdiction to
hear this appeal. Appellant argues that this case lacks a final,
appealable order because the trial court failed to properly
record all the requirements of Crim.R. 32(C) in the judgment
entry. Appellant alleges that the judgment entry does not state
a fact of conviction nor sentence. Since it is unclear whether
appellant is challenging the judgment entry of August 4, 2005,
or the re-sentencing entry of October 24, 2006, we will
consider both.
Crim.R. 32(C) provides, in pertinent part: "[a] judgment of
conviction shall set forth the fact of conviction and the
sentence. * * * The judge shall sign the judgment and the clerk
shall enter it on the journal." "A judgment of conviction is a
final order subject to appeal under R.C. 2505.02 when it sets
forth (1) the fact of the conviction, (2) the sentence, (3) the
judge's signature, and (4) the time stamp indicating the entry
upon the journal by the clerk. (Crim.R. 32(C) explained; State
v. Baker, 119 Ohio St. 3d 197, 2008-Ohio-3330, 893 N.E.2d
163, modified.)." State v. Lester, 130 Ohio St. 3d 303, 2011-
Ohio-5204, paragraph one of the syllabus. The Supreme Court
of Ohio has explained that "[t]he purpose of Crim.R. 32(C) is to
ensure that a defendant is on notice concerning when a final
judgment has been entered and the time for filing an appeal has
begun to run." Id. at ¶ 10, citing State v. Tripodo, 50 Ohio St. 2d
124, 127 (1977).
On October 22, 2003, appellant was indicted for aggravated
murder with capital and firearm specifications for the shooting
death of his mother-in-law (Count 1 of the indictment),
attempted murder with a firearm specification for the shooting
of his wife (Count 2 of the indictment), and tampering with
evidence (Count 3 of the indictment). The state dismissed
Count 3 of the indictment. A jury trial commenced on May 20,
2005, and the jury returned a verdict finding appellant not
guilty of aggravated murder, but guilty of the lesser included
offense of murder, and not guilty of attempted murder, but
guilty of the lesser included offense of felonious assault. The
jury also found that appellant used a firearm to facilitate
the offenses.
No. 17AP-620 6
Appellant timely appealed but did not argue, nor assign as
error, any claim that the judgment entry was not a final
appealable order. Subsequent to the judgment entry of
August 4, 2005, the Supreme Court of Ohio decided the case of
State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856, which
required us to remand the case to the trial court for re-
sentencing. State v. White, 10th Dist. No. 05AP-1178, 2006-
Ohio-4226 ("White I"). On October 20, 2006, a re-sentencing
hearing was held. On October 24, 2006, the trial court issued a
re-sentencing entry. Appellant again appealed but made no
claim that the re-sentencing entry was not a final appealable
order. We affirmed the trial court's judgment. State v. White,
10th Dist. No. 07AP-743, 2008-Ohio-701 ("White II").
The record reveals that both the August 4, 2005 judgment
entry and the October 24, 2006 re-sentencing entry complied
with Crim.R. 32. Contrary to appellant's claim, we find that
both entries contain the fact of conviction and the sentence.
The entries clearly state that the jury found appellant guilty of
the lesser included offense of murder as to Count 1 of the
indictment, and of the lesser included offense of felonious
assault as to Count 2 of the indictment, and that the
specifications as to Counts 1 and 2 of the indictment merge as
to sentencing. The judgment entry states that appellant was
sentenced to 15 years to life as to Count 1 of the indictment, to
be served consecutively to 7 years as to Count 2 of the
indictment, and consecutively to 3 years for the firearm
specification. The entries are also signed by the trial judge and
time-stamped by the clerk's office.
Moreover, considering that appellant filed a timely direct
appeal from the judgment entry, and appealed from the re-
sentencing entry, he cannot credibly argue that he was not on
notice when a final judgment was entered. See State v. Monroe,
10th Dist. No. 13AP-598, 2015-Ohio-844 (rejecting appellant's
challenge of trial court's denial of his motion for a final
appealable order when appellant had already fully exhausted
his appellate rights).
State v. White, 10th Dist. No. 17AP-538 (Feb. 13, 2018) (memorandum decision) (denying
reconsideration of White IV). White also filed an application for en banc consideration
alleging our decision in White IV conflicts with Bonner, State v. Rexrode, 10th Dist. No.
17AP-224, 2017-Ohio-8837, and State v. Brisco, 10th Dist. No. 16AP-759, 2017-Ohio-8089.
We denied the application and stated:
No. 17AP-620 7
In his application for en banc consideration, appellant argues
that White IV conflicts with this court's decisions in State v.
Bonner, 10th Dist. No. 14AP-611, 2015-Ohio-1010; State v.
Rexrode, 10th Dist. No. 17AP-224, 2017-Ohio-8837; and State
v. Brisco, 10th Dist. No. 16AP-759, 2017-Ohio-8089.
Appellant alleges that we failed to sua sponte address or
consider our own jurisdiction to hear this appeal, as we did in
Bonner and Rexrode, because no final appealable order was
issued by the trial court. In Bonner, we found that we lacked
jurisdiction because the trial court's modified judgment entry
did not satisfy the second element in State v. Baker, 119 Ohio
St.3d 197, 2008-Ohio-3330 and in State v. Lester, 130 Ohio
St.3d 303, 2011-Ohio-5204, by not setting forth all of the
defendant's sentences, and thus did not comply with Crim.R.
32(C), and was therefore not a final appealable order. Bonner
at ¶ 15, 17 & 26. In Rexrode, we found that we lacked
jurisdiction because the trial court's sentencing entry failed to
state that appellant was convicted of a crime. Id. at ¶ 13. In
appellant's case, we have previously found that both the trial
court's August 4, 2005 judgment entry and the October 24,
2006 re-sentencing entry complied with Crim.R. 32, and were
final appealable orders. As such, White IV does not conflict
with Bonner or Rexrode.
In Brisco, the appellant was found guilty of murder in
violation of R.C. 2903.02(B), which reads in pertinent part:
"No person shall cause the death of another as a proximate
result of the offender's committing or attempting to commit
an offense of violence that is a felony of the first or second
degree." The court in Brisco noted that Brisco's "felony
murder conviction was dependent on a finding that [Brisco]
was guilty of felonious assault." Id. at ¶ 23. As such, a factual
finding of felonious assault was an element in the murder
conviction of Brisco, which we affirmed.
In the present case, appellant was found guilty of murder
under the same statute as Brisco, in regards to his mother-in-
law. Appellant alleges that the trial court, in the judgment
entry (or re-sentencing entry), was required to address the
element of the offense, i.e., felonious assault. Appellant's
claim lacks merit. Brisco does not address the requirements
of Crim.R. 32 and Baker/Lester. There is no conflict between
White IV and Brisco.
No. 17AP-620 8
State v. White, 10th Dist. No. 17AP-538 (May 3, 2018) (memorandum decision) (denying
en banc consideration of White IV).
{¶ 10} On June 11, 2018, White filed a notice of appeal of White IV to the Supreme
Court again rearguing all the same jurisdictional issues outlined above. The case is
currently pending in the Supreme Court of Ohio in case No. 18-0790.
{¶ 11} The Supreme Court held in Priest that "[a]ppeal is generally considered an
adequate remedy sufficient to preclude a writ." Id. at ¶ 2, citing State ex rel. Pressley v.
Indus. Comm., 11 Ohio St. 2d 141 (1967), paragraph three of the syllabus.
{¶ 12} Accordingly, we agree with the magistrate that White had a prior and
adequate remedy at law which he exercised in his appeal to this court in White IV. White
cannot relitigate in this original action the issues that he has previously litigated in White
IV. Therefore, this action is barred by the plain and adequate remedy at law.
{¶ 13} Following an independent review of this matter, we find the magistrate has
properly determined the facts and applied the appropriate law. Therefore, we overrule
White's objections, and adopt the magistrate's decision as our own, including the findings
of fact and conclusions of law contained therein. In accordance with magistrate's decision,
we grant respondent's motion to dismiss and dismiss this action.
Objections overruled;
action dismissed.
KLATT and SADLER, JJ., concur.
No. 17AP-620 9
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. Marcus D. White, :
Relator, :
v. : No. 17AP-620
Judge William H. Woods, : (REGULAR CALENDAR)
Respondent. :
MAGISTRATE'S DECISION
Rendered on January 23, 2018
Marcus D. White, pro se.
Ron O'Brien, Prosecuting Attorney, and Arthur J. Marziale,
Jr., for respondent.
IN MANDAMUS AND/OR PROCEDENDO
ON RESPONDENT'S MOTION TO DISMISS
{¶ 14} In this original action, relator, Marcus D. White, an inmate of the Warren
Correctional Institution ("WCI"), requests a writ of mandamus and/or procedendo
ordering respondent, the Honorable William H. Woods, a judge of the Franklin County
Court of Common Pleas ("respondent" or "Judge Woods") to correct alleged sentencing
errors and, thus, to resentence relator such that the new sentencing entry will provide him
a final appealable order.
Findings of Fact:
{¶ 15} 1. On August 28, 2017, relator, a WCI inmate, filed this original action
against respondent.
No. 17AP-620 10
{¶ 16} 2. According to the complaint, relator was convicted of "O.R.C. 2903.02(B)
Felony Murder with a predicate offense of O.R.C. 2903.11(A)(1) Felonious Assault to wit:
Ms. Debra Green."
{¶ 17} 3. According to the complaint, at footnote number one, relator was
"resentenced October 20, 2006."
{¶ 18} 4. According to the complaint, relator has "a clear legal right to be legally
convicted and sentenced which includes issuance of a final and appealable order that
complies with O.R.C. 2505.02 and Criminal Rule 32(C)."
{¶ 19} 5. In his complaint, relator concludes that this court must compel
respondent to resentence relator to correct alleged sentencing errors.
{¶ 20} 6. Attached to his complaint as an exhibit is a copy of a decision and entry
marked as filed in the Franklin County Court of Common Pleas on November 30, 2012. The
four-page decision and entry denies a September 13, 2012 motion to vacate sentence. The
decision and entry states that the September 13, 2012 motion is being treated as a petition
for postconviction relief. The decision and entry concludes: "The petition is untimely,
barred by res judicata and, as previously discussed, lacks merit."
{¶ 21} 7. On September 26, 2017, respondent filed a motion to dismiss in the instant
action. Respondent argues, inter alia, that this action is barred by an adequate remedy in
the ordinary course of law by way of appeal or postconviction relief.
{¶ 22} 8. On October 6, 2017, relator filed a reply to respondent's motion to dismiss.
In his reply, relator requests this court "review the entire record if it so wishes under Case
No. 17APA-07-538 (10th DCA) ["White IV"] as it was docketed/submitted August 23,
2017."
{¶ 23} 9. In his memorandum in support of his reply to respondent's motion to
dismiss, relator states:
The Relator again requested a valid Judgement Entry in the
2016 Motion to Vacate for lack of subject-matter jurisdiction
and lack of a final appealable order, (for failing to state the
subsection of Murder and the predicate offense of Felony
Murder (B), "Felonious Assault to wit: Debra Green"). Which
was Denied July 12, 2017. Relator appeal[ed] the denial in
case #17APA-07-538 ["White IV"].
No. 17AP-620 11
Conclusions of Law:
{¶ 24} On November 30, 2017, during the pendency of this original action, this court
issued a decision in an appeal in Case No. 17AP-538 ["White IV"], a case that relator
requests this court to review in his reply to respondent's motion to dismiss. A review of this
court's decision in Case No. 17AP-538 ["White IV"] clearly shows that this original action is
barred by a plain and adequate remedy at law that relator exercised in his appeal to this
court in that case.
{¶ 25} In Case No. 17AP-538["White IV"], this court states in its decision:
As pertinent to this appeal, on October 12, 2003, appellant
shot his wife in the face and then fatally shot his mother-in-
law. Appellant's wife survived. On October 22, 2003,
appellant was indicted for aggravated murder with capital and
firearm specifications, and attempted murder with a firearm
specification.
A jury trial commenced on May 20, 2005, and the jury
returned a verdict finding appellant not guilty of aggravated
murder, but guilty of the lesser included offense of murder,
and not guilty of attempted murder, but guilty of the lesser
included offense of felonious assault. The jury also found that
appellant used a firearm to facilitate the offenses. On August
2, 2005, appellant was sentenced to 15 years to life on the
murder charge and 7 years on the felonious assault charge,
with the sentences to be served consecutively. In addition, the
trial court also imposed 3 years of mandatory incarceration
for the firearm specification.
Appellant appealed his conviction and sentence. The trial
transcript was filed in his direct appeal on January 24, 2006.
We affirmed in part, reversed in part, and remanded the case
for resentencing. [State v. White, 10th Dist. No. 05AP-1178,
2006-Ohio-4226] (White I"). Following his resentencing on
remand, appellant again appealed. We affirmed the trial
court's judgment. State v. White, 10th Dist. No. 07AP-743,
2008-Ohio-701 ("White II").
On September 13, 2012, appellant filed a motion to vacate and
set aside the judgment of conviction, asserting that the
judgment was void. The trial court denied appellant's motion
and he appealed. We affirmed the trial court's decision.
State v. White, 10th Dist. No. 12AP-1055, 2013-Ohio-2217
("White III").
No. 17AP-620 12
On September 16, 2016, appellant filed a motion to vacate his
judgment and conviction, claiming the trial court erred in
instructing the jury on the lesser included offense of murder.
On July 12, 2017, the trial court denied, for lack of jurisdiction,
appellant's motion because it was untimely and barred as a
successive petition under R.C. 2953.23(A) and under the
doctrine of res judicata. (July 12, 2017 Decision and Entry.)
Appellant timely filed this appeal.
***
We agree with the trial court that it lacked jurisdiction.
Appellant's motion to vacate and set aside judgment should
be treated as a postconviction petition. In general, "where a
criminal defendant, subsequent to his direct appeal, files a
motion seeking to vacate or correct his sentence on the basis
that his constitutional rights have been violated, such a
motion is deemed a petition for post-conviction relief."
State v. Rippey, 10th Dist. No. 06AP-1229, 2007-Ohio-
4521, ¶ 8, citing State v. Reynolds, 79 Ohio St. 3d 158, 160,
1997-Ohio-304, 679 N.E.2d 1131 (1997).
***
Appellant challenged the conviction and sentence he is
currently serving, and R.C. 2953.21 "is the exclusive remedy
by which a person may bring a collateral challenge to the
validity of a conviction or sentence in a criminal case." R.C.
2953.21(K). Pursuant to R.C. 2953.21(A)(2), appellant was
required to file his petition no later than 365 days after the
date on which the trial transcript was filed in the Court of
Appeals. This restriction is jurisdictional, as "a court may not
entertain a petition filed after the expiration of" that time
period. R.C. 2953.23(A). See also State v. Myers, 10th Dist.
No. 05AP-228, 2005-Ohio-5998, ¶ 28, 34.
Here, the trial transcript for appellant's direct appeal was filed
with this court on January 24, 2006. Thus, appellant's 365-
day deadline to file a petition for postconviction relief expired
on January 24, 2007. Appellant did not file his petition until
September 16, 2016, over 9 years after the deadline expired.
Thus, appellant's petition for postconviction relief was
untimely.
***
No. 17AP-620 13
Even if appellant's petition was not untimely and barred as a
successive petition, appellant's arguments would fail due to
the doctrine of res judicata. "Res judicata is applicable in all
postconviction relief proceedings." State v. Szefcyk, 77 Ohio
St.3d 93, 95, 1996-Ohio-337, 671 N.E.2d 233 (1996). 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 any claimed lack of due
process that was raised or could have been raised by the
defendant at trial, which resulted in that judgment of
conviction, or on an appeal from that judgment. State v.
Perry, 10 Ohio St. 2d 175, 226 N.E.2d 104 (1967), paragraph
nine of the syllabus.
As a result, "[p]ostconviction review is a narrow remedy, since
res judicata bars any claim that was or could have been raised
at trial or on direct appeal." State v. Steffen, 70 Ohio St. 3d
399, 410, 1994 Ohio 111, 639 N.E.2d 67 (1994); State v. Davic,
10th Dist. No. 15AP-1000, 2016-Ohio-4883, ¶ 11. Here,
appellant challenged his sentence during his direct appeal,
and he challenged his sentence in his other postconviction
pleadings. He also had the opportunity to raise his claimed
error in instructing the jury on the lesser included offenses in
a timely appeal, or in a timely postconviction petition. See
Perry at paragraph seven of the syllabus. As such, res judicata
bars appellant's motion.
Accordingly, the trial court acted reasonably when it found
that it lacked jurisdiction because appellant's petition was an
untimely and successive postconviction petition, and because
it was barred by res judicata. Appellant's assignment of error
is overruled.
State v. White, 10th Dist. No. 17AP-538, 2017-Ohio-8750, ¶ 2-6, 8, 10-11, 14-16. (Footnote
omitted.) ["White IV".]
{¶ 26} Clearly, relator cannot relitigate in this original action the assignment of error
that he did in fact litigate in his appeal to this court in Case No. 17AP-538 ["White IV"].
Thus, this action is barred by the plain and adequate remedy at law that relator has already
exercised in Case No. 17AP-538 ["White IV"].
{¶ 27} Accordingly, for all the above reasons, it is the magistrate's decision that this
court grant respondent's motion to dismiss.
No. 17AP-620 14
/S/ MAGISTRATE
KENNETH W. MACKE
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
error on appeal the court's adoption of any factual finding or
legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii),
unless the party timely and specifically objects to that factual
finding or legal conclusion as required by Civ.R. 53(D)(3)(b).