State v. Jackson , 2021 Ohio 1472 ( 2021 )

[Cite as State v. Jackson, 2021-Ohio-1472.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. Craig R. Baldwin, P.J.
Plaintiff - Appellee : Hon. W. Scott Gwin, J.
: Hon. John W. Wise, J.
-vs- :
:
MORRIS JACKSON, JR., : Case No. 2020CA00165
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court
of Common Pleas, Case No. 2005-
CR-1123(B)
JUDGMENT: Affirmed
DATE OF JUDGMENT: April 26, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KYLE L. STONE MORRIS JACKSON, JR., pro se
Prosecuting Attorney Inmate No. A494-145
Stark County, Ohio Richland Correctional Institution
P.O. Box 8107
By: VICKI L. DeSANTIS Mansfield, Ohio 44905
Assistant Prosecuting Attorney
Appellate Division
110 Central Plaza South Ste. 510
Canton, Ohio 44702-1413
Stark County, Case No. 2020CA00165 2
Baldwin, J.
{¶1} Defendant-appellant Morris Jackson, Jr. appeals from the October 29, 2020
Judgment Entry of the Stark County Court of Common Pleas denying his Motion for
Ineffective Assistance of Counsel. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On August 5, 2005, appellant was indicted on two counts of aggravated
robbery, one count of grand theft of a motor vehicle, one count of attempted kidnapping
and three firearm specifications. Following a jury trial, the jury found appellant guilty on
all four counts, as well as the firearm specifications. On November 28, 2005, the court
imposed an aggregate sentence on appellant of thirty-two and one-half years in prison.
{¶3} Appellant filed a direct appeal. Pursuant to an Opinion filed on December
18, 2006 in State v. Jackson, Stark App. No. 2005 CA 00309, 2006-Ohio-6728, this Court
affirmed appellant's conviction, but remanded this matter for a new sentencing hearing
based on the Ohio Supreme Court's decision in State v. Foster, 109 Ohio St.3d 1, 2006–
Ohio–856, 845 N.E.2d 470. The Ohio Supreme Court declined to accept further review.
On June 11, 2007, appellant was resentenced to an aggregate sentence of thirty- two
and a half years in prison.
{¶4} Appellant then appealed. Pursuant to an Opinion filed on July 28, 2008 in
State v. Jackson, Stark App. No. 2007–CA–00204, 2008-Ohio-3907, this Court
remanded the case for a second resentencing hearing based on the trial court's failure to
advise appellant of post release control obligations.
{¶5} On July 14, 2008, appellant filed had a Petition to Vacate or Set Aside
Sentence pursuant to R.C. 2953.21. As memorialized in a Judgment Entry filed on August
Stark County, Case No. 2020CA00165 3
6, 2008, the trial court overruled the same. On August 18, 2008, appellant was
resentenced to an aggregate sentence of thirty-two and a half years in prison. Appellant’s
motion to file a delayed appeal in the Ohio Supreme Court was denied.
{¶6} Appellant, on May 10, 2013, filed a Notice/Motion of Plain Error. The trial
court, in a Judgment Entry filed on July 12, 2013, sustained the State’s Motion to Dismiss
and Motion for Summary judgment and dismissed appellant’s Notice/Motion of Plain
Error.
{¶7} Thereafter, on August 13, 2013, appellant filed a Post-Conviction Motion.
The trial court, pursuant to a Judgment Entry filed on February 13, 2014, granted the
State’s Motion to Dismiss and Motion for Summary Judgment and dismissed appellant’s
Petition.
{¶8} On August 31, 2015, appellant filed a Petition to Vacate Void Sentence.
Following a hearing held on October 19, 2015, appellant was resentenced to thirty-two
and a half years in prison. Appellant, on August 22, 2016, filed a Notice of Plain Error
and, on August 22, 2016, also filed a Motion to Void sentence for Non-Appealable order
pursuant to R.C. 2505.02 and R.C. 2501.02. He also filed a Motion to Correct
Judgment/Journal pursuant to Crim.R. 36 on the same date. The trial court, pursuant to
a Judgment Entry filed on November 4, 2016, granted appellant’s Motion to Correct
Judgment Entry/Journal Entry in part and stated that it would issue a nunc pro tunc
sentencing entry correcting the date of appellant’s sentencing hearing, noting his in-
person appearance, and including a calculation of appellant’s jail time credit in the entry.
The trial court denied appellant’s Motion to Void sentence for Non-Appealable order and
stated that with respect to his Notice of Plain Error, it would issue a nunc pro tunc entry
Stark County, Case No. 2020CA00165 4
including a calculation of appellant’s jail time credit. The trial court filed a Nunc Pro Tunc
Sentencing Entry on November 4, 2016.
{¶9} Appellant, on June 13, 2019, filed a Motion to Vacate and Void
Sentence/Merge Allied Offenses. The trial court denied the motion on August 22, 2019.
Appellant attempted to appeal from such entry but this Court dismissed the appeal on the
grounds that appellant had failed to perfect the appeal by filing the notice of appeal with
the trial court. Appellant then filed a Notice of Appeal in the Ohio Supreme Court.
However, his motion for a delayed appeal was denied on January 21, 2020.
{¶10} Appellant, on May 20, 2020, filed a Motion for Ineffective Assistance of
Counsel. Appellant, in his motion, alleged that trial counsel was ineffective in failing to
argue that witness identification evidence was impermissibly suggestive and in advising
appellant that the State’s preemptory challenges cannot be objected to. Appellant argued
that trial counsel should have made a Batson challenge.
{¶11} The trial court, via a Judgment Entry filed on October 29, 2020, denied
appellant’s Motion for Ineffective Assistance of Counsel. The trial court found that the
motion was an untimely post-conviction motion and that appellant’s arguments were
barred by the doctrine of res judicata.
{¶12} Appellant now appeals, raising the following assignment of error on appeal:
{¶13} “I. INEFFECTIVE ASSISTANCE OF COUNSEL PURSUANT TO
STRICKLAND V. WASHINGTON, 466 U.S. 668.”
I
{¶14} Appellant, in his sole assignment of error, argues that the trial court erred in
denying his Motion for Ineffective Assistance of Counsel. We disagree.
Stark County, Case No. 2020CA00165 5
{¶15} Appellant’s motion was an untimely filed post-conviction motion. Appellant
was obligated to file his petition for post-conviction relief no later than three hundred sixty-
five days after the expiration of the time for filing the appeal. R.C. 2953.21. If a petition is
untimely filed, the trial court is required to entertain the petition only if appellant could
meet the requirements of R.C. 2953.23(A). The trial court may not entertain the untimely
petition for post-conviction relief “unless the petitioner initially demonstrates * * * he was
unavoidably prevented from discovering the facts necessary for the claim for relief
[.]” State v. Tolliver, 10th Dist. Franklin No. 14AP-170, 2014-Ohio-4824, 2014 WL
5493878, ¶ 18; R.C. 2953.23(A)(1)(a). State v. Dunkle, 5th Dist. Licking No. 18-CA-86,
2019-Ohio-76, ¶ 16.
{¶16} Appellant's petition is delinquent, being related to a conviction that occurred
over ten years prior to the filing of the petition and appellant makes no effort to argue that
he was unavoidably prevented from discovering the errors he asserts. The trial court,
therefore, had no jurisdiction to consider this petition. State v. Apanovitch, 155 Ohio St.3d
358, 2018-Ohio-4744, 121 N.E.3d 351, reconsideration denied, 154 Ohio St.3d 1467,
2018-Ohio-5210, 114 N.E.3d 217.
{¶17} Moreover, “[u]nder 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.” State
v. Szefcyk, 77 Ohio St.3d 95, 1996-Ohio 337, 671 N.E.2d 233 (1996) (Citations omitted).
Stark County, Case No. 2020CA00165 6
{¶18} As noted by the trial court, appellant was appointed new counsel for his
direct appeal. Appellant could have raised the ineffective assistance of trial counsel
claims in one of his direct appeals. Appellant’s claims are, therefore, also barred by the
doctrine of res judicata.
{¶19} Appellant’s sole assignment of error is, therefore, overruled.
{¶20} Accordingly, the judgment of the Stark County Court of Common Pleas is
affirmed.
By: Baldwin, P.J.
Gwin, J. and
Wise, John, J. concur.