State v. Lewis , 2018 Ohio 1336 ( 2018 )

[Cite as State v. Lewis, 2018-Ohio-1336.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 17 MA 0132
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
FREDDIE LEWIS )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Mahoning County,
Ohio
Case No. 02 CR 317
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: Freddie Lewis, Pro se
#443-298
Trumbull Correctional Institution
P.O. Box 901
Leavittsburg, Ohio 44430
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Carol Ann Robb
Dated: March 29, 2018
[Cite as State v. Lewis, 2018-Ohio-1336.]
WAITE, J.
{¶1} Appellant Freddie Lewis appeals an August 24, 2017 decision of the
Mahoning County Common Pleas Court denying a motion to vacate his sentence.
Appellant argues that the trial court failed to merge his aggravated murder and
aggravated robbery convictions. For the reasons provided, Appellant’s arguments
are without merit and the judgment of the trial court is affirmed.
Factual and Procedural History
{¶2} Appellant and a codefendant were indicted for aggravated murder and
aggravated robbery with firearm specifications. The indictment stemmed from an
incident that occurred on February 21, 2002 where Appellant and his codefendant
shot and killed a college student after robbing him. A jury found Appellant guilty of
complicity to aggravated murder, complicity to aggravated robbery, and the firearm
specifications. The trial court sentenced Appellant to incarceration for life with the
possibility of parole after twenty years on the aggravated murder conviction and ten
years on the aggravated robbery conviction. The two firearm specifications were
merged and the court sentenced Appellant to three years on the merged gun
specifications. The court ordered all of the sentences to run concurrently.
{¶3} We affirmed Appellant’s convictions and sentence in State v. Lewis, 7th
Dist. 03 MA 36, 2005-Ohio-2699. On July 24, 2013, Appellant filed a motion for
“Issuance of a Revised Judgment Entry of Conviction and Sentence” and
“Assessment of Subject-Matter Jurisdiction.” In the motion Appellant argued, among
other things, that the trial court failed to merge his aggravated murder and
aggravated robbery convictions for purposes of sentencing. On October 17, 2013,
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the trial court denied Appellant’s motion. Appellant did not appeal the court’s
decision. On December 15, 2014, Appellant filed a second motion for “Issuance of a
Revised Judgment Entry of Conviction and Sentence” and “Assessment of Subject-
Matter Jurisdiction.” On February 5, 2015, the trial court sua sponte dismissed the
motion. Appellant filed an appeal with this Court, which was denied as untimely. On
July 7, 2017, Appellant filed a “MOTION TO VACATE SENTENCE CONTRARY TO
LAW.” In his motion, Appellant argued that his sentence is contrary to law and that
the trial court was required to merge his aggravated murder and aggravated robbery
convictions for purposes of sentencing and failed. On August 24, 2017, the trial court
denied the motion. It is from this judgment entry that Appellant appeals.
Postconviction Petition
{¶4} A motion to correct a sentence meets the definition of a postconviction
petition if “it is a motion that (1) was filed subsequent to [the defendant’s] direct
appeal, (2) claimed a denial of constitutional rights, (3) sought to render the judgment
void, and (4) asked for vacation of the judgment and sentence.” State v. Reynolds,
79 Ohio St.3d 158, 160, 679 N.E.2d 1131 (1997).
{¶5} The motion at issue here was clearly filed subsequent to Appellant’s
direct appeal, claims a denial of constitutional rights, seeks to render the judgment
void, and asks for vacation of his sentence. Thus, the motion is construed as a
postconviction petition.
{¶6} In order to successfully assert a postconviction petition, “the petitioner
must demonstrate a denial or infringement of his rights in the proceedings resulting in
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his conviction sufficient to render the conviction void or voidable under the Ohio or
United States Constitutions.” State v. Agee, 7th Dist. No. 14 MA 0094, 2016-Ohio-
7183, ¶ 9, citing R.C. 2953.21(A)(1). The petitioner is not automatically entitled to a
hearing. State v. Cole, 2 Ohio St.3d 112, 113, 443 N.E.2d 169 (1982). Pursuant to
R.C. 2953.21(D), the petitioner bears the burden of demonstrating “substantive
grounds for relief” through the record or any supporting affidavits. However, because
a postconviction petition is not a forum to relitigate issues that could have been
raised on direct appeal, res judicata bars many claims. R.C. 2953.21(D).
{¶7} The doctrine of res judicata “bars an individual from raising a defense or
claiming a lack of due process that was or could have been raised at trial or on direct
appeal.” State v. Croom, 7th Dist. No. 13 MA 98, 2014-Ohio-5635, ¶ 7, citing State v.
Ishmail, 67 Ohio St.2d 16, 18, 423 N.E.2d 1068 (1981). However, where “an alleged
constitutional error is supported by evidence that is de hors the record, res judicata
will not bar the claim because it would have been impossible to fully litigate the claim
on direct appeal.” State v. Green, 7th Dist. No. 02 CA 35, 2003-Ohio-5142, ¶ 21,
citing State v. Smith, 125 Ohio App.3d 342, 348, 708 N.E.2d 739 (12th Dist.1997).
Timeliness
{¶8} The state contends that the trial court properly dismissed Appellant's
postconviction petition as untimely. In relevant part, R.C. 2953.21(A)(2) provides that
a postconviction petition “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.”
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{¶9} Ohio law provides a two-part exception in R.C. 2953.23(A)(1)(a)-(b).
Pursuant to R.C. 2953.23(A)(1)(a):
[T]he petitioner was unavoidably prevented from discovery of the facts
upon which the [he] must rely to present the claim for relief, or, * * * the
United States Supreme Court recognized a new federal or state right
that applies retroactively to persons in the petitioner's situation, and the
petition asserts a claim based on that right.
{¶10} Pursuant to R.C. 2953.23(A)(1)(b), the petitioner must show “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.”
{¶11} The record in this matter reflects that Appellant filed the trial transcripts
with this Court on July 31, 2003. Appellant filed his postconviction petition on July 7,
2017, approximately thirteen years after filing his transcripts. Pursuant to R.C.
2953.21(A)(2), his petition is untimely unless he can show this matter falls within the
exception provided by R.C. 2953.23(A)(1)(a)-(b).
{¶12} Appellant does not argue that his case falls within the exception. In
fact, Appellant does not present any arguments as to the timeliness of his motion.
Nonetheless, Appellant is barred from raising his arguments by the doctrine of res
judicata. Appellant could have raised an argument regarding merger in his direct
appeal. In fact, Appellant has already raised this issue twice, once in his July 24,
2013 motion and once in his December 15, 2014 motion. Appellant failed to appeal
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the trial court’s denial of his July 24, 2013 motion and his December 15, 2014 appeal
was dismissed by this Court as untimely. As such, Appellant is barred from raising
these issues because they are res judicata.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT FAILED TO MERGE APPELLANT'S
CONVICTIONS FOR AGGRAVATED MURDER AND AGGRAVATED
ROBBERY AS ALLIED OFFENSES OF SIMILAR IMPORT UNDER
R.C. 2941.25(A), IN VIOLATION OF HIS DUE PROCESS
PROTECTIONS UNDER THE FOURTEENTH AMENDMENT TO THE
U.S. CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO
CONSTITUTION.
ASSIGNMENT OF ERROR NO. 2
APPELLANT'S SENTENCE OF THIRTY-THREE YEARS TO LIFE IS
CONTRARY TO LAW AND VOID WHERE THE TRIAL COURT
FAILED TO MERGE HIS CONVICTIONS FOR AGGRAVATED
MURDER AND AGGRAVATED ROBBERY, INSTEAD SENTENCING
HIM SEPARATELY ON BOTH, VIOLATING HIS DUE PROCESS
PROTECTIONS UNDER THE FOURTEENTH AMENDMENT TO THE
U.S. CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO
CONSTITUTION.
ASSIGNMENT OF ERROR NO. 3
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THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S
MOTION TO VACATE A SENTENCE CONTRARY TO LAW, IN
VIOLATION OF HIS DUE PROCESS PROTECTIONS UNDER THE
FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION AND
ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.
{¶13} Due to the untimeliness of Appellant’s motion and the fact that he is
barred from raising these arguments by res judicata, each of these assignments of
error are moot. Hence, Appellant’s assignments of error are without merit and are
overruled.
Conclusion
{¶14} Appellant argues that the trial court failed to merge his aggravated
murder and aggravated robbery convictions. Appellant’s arguments are untimely and
are barred by res judicata. Accordingly, Appellant’s arguments are without merit and
the judgment of the trial court is affirmed.
Donofrio, J., concurs.
Robb, P.J., concurs.