State v. Shabazz , 2019 Ohio 5245 ( 2019 )

[Cite as State v. Shabazz, 2019-Ohio-5245.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108315
v. :
JAMILL SHABAZZ ABDUL, :
AKA JAMIL A. SHABAZZ,
:
Defendant-Appellant.
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 19, 2019
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-07-495551-A
Appearances:
Michael C. O’Malley Cuyahoga County Prosecuting
Attorney, Jennifer Meyer and Mary M. Frey, Assistant
Prosecuting Attorneys, for appellee.
Jamill Shabazz Abdul, pro se.
PATRICIA ANN BLACKMON, J.:
This cause came to be heard upon the accelerated calendar pursuant
to App.R. 11.1 and Loc.R. 11.1. Defendant-appellant, Jamill Shabazz Abdul, a.k.a.
Jamil A. Shabazz and Jamill Abdul (“Shabazz Abdul”), appeals from trial court’s
judgment denying his petition for postconviction relief. He assigns the following
error for our review:
I. The trial court violated Crim.R. 43(A) (1) of [Shabazz Abdul].
II. The trial court violated the substantial rights of [Shabazz Abdul],
according to Crim.R. 33(C).
III. The trial court abused its discretion and violated the due process
rights of [Shabazz Abdul].
Having reviewed the record and the pertinent law, we affirm the
decision of the trial court.
In 2007, Shabazz Abdul was convicted of murder with a firearm
specification, notice of prior conviction, and repeat violent offender specification in
connection with the shooting death of Gregory Rogers. Shabazz Abdul was
sentenced to 15 years to life, plus 3 years for the weapon.
On direct appeal, Shabazz Abdul argued that the conviction was not
supported by sufficient evidence, and that he did not receive effective assistance of
counsel. This court affirmed. State v. [Shabazz] Abdul, 8th Dist. Cuyahoga No.
90789, 2009-Ohio-225 (“Shabazz Abdul I”).
Later in 2009, Shabazz Abdul filed a petition for postconviction relief
in the trial court, claiming that a state’s witness committed perjury, and that he was
denied effective assistance of counsel. The trial court denied the petition, and this
court affirmed its decision. State v. Shabazz [Abdul], 8th Dist. Cuyahoga No. 94738,
2010-Ohio-5789 (“Shabazz Abdul II”).
On May 17, 2012, Shabazz Abdul filed his first motion for a new trial,
challenging his indictment, the amendment of his indictment, and the court’s jury
instructions. The motion for a new trial was denied, and this court affirmed its
decision. State v. Shabazz [Abdul], 8th Dist. Cuyahoga No. 98601, 2013-Ohio-267
(“Shabazz Abdul III”).
In 2012, Shabazz Abdul filed a pro se challenge to the imposition of
postrelease control for the murder conviction, correctly noting that postrelease
control is not applicable to murder, an unclassified felony. The trial court granted
the motion on August 20, 2012, in a journal entry that stated, “defendant’s
sentencing entry is corrected to eliminate any reference to post-release control.
However, defendant is not entitled to a de novo sentencing. See State v. Lofton, 4th
Dist. [Pickaway] No. 11CA16, 2012-Ohio-2274.”
On September 9, 2013, Shabazz Abdul filed his second motion for a
new trial, claiming newly discovered evidence. The trial court denied the second
motion for a new trial, and this court affirmed its decision. State v. Shabazz [Abdul],
8th Dist. Cuyahoga No. 100623, 2014-Ohio-3142 (“Shabazz Abdul IV”).
In 2015, Shabazz Abdul filed a motion for leave to file his third motion
for a new trial, arguing that he was unavoidably prevented from getting newly
discovered exculpatory evidence. However, Shabazz Abdul did not present this
evidence to the court. The trial court denied the motion for leave, and this court
affirmed. State v. Shabazz Abdul, 8th Dist. Cuyahoga No. 103510, 2016-Ohio-3063
(“Shabazz Abdul V”).
Turning to the instant matter, in February 2019, Shabazz Abdul filed
another petition for postconviction relief. He argued that in 2009, “pursuant to the
remand by the Court of Appeals in Case No. 90789,” his sentence was modified in
his absence in violation of Crim.R. 43. Shabazz Abdul also argued that in 2012, the
trial court issued a nunc pro tunc correction of his sentence to eliminate postrelease
control for murder, and this “effectively vacated [the] sentence and imposed a new
[and void] sentence.” The trial court denied the petition.
Petition for Postconviction Relief
Shabazz Abdul argues that the trial court erred in denying his
February 2019 petition for postconviction relief because a resentencing occurred in
his absence “on remand” in 2009 following his direct appeal. He also argues that
the court erroneously corrected the sentence in 2012 by a nunc pro tunc entry, rather
than resentencing him in a new final appealable order.
Under R.C. 2953.21, a petitioner may obtain postconviction relief
“only if the court can find that there was such a denial or infringement of the rights
of the prisoner as to render the judgment void or voidable under the Ohio
Constitution or the United States Constitution.” State v. Perry, 10 Ohio St. 2d 175,
226 N.E.2d 104 (1967), paragraph four of the syllabus. A postconviction petition is
a means to reach constitutional issues that would otherwise be impossible to reach
because the evidence supporting those issues is not contained in the record. State
v. Steffen, 70 Ohio St. 3d 399, 410, 639 N.E.2d 67 (1994); State v. Smith, 8th Dist.
Cuyahoga No. 93534, 2010-Ohio-1869, ¶ 11. It does not provide a petitioner a
second opportunity to litigate his or her conviction. Id. at ¶ 12.
The postconviction relief statute allows only a limited time to file a
petition for postconviction relief and provides that the 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 or
adjudication” challenged by the petition. R.C. 2953.21(A)(2). This restriction is
jurisdictional. R.C. 2953.23(A). However, R.C. 2953.23(A) permits a prisoner to
file an untimely, successive petition for postconviction relief only where the motion
meets the requirements of R.C. 2953.23(A)(1). State v. Apanovitch, 155 Ohio St. 3d
358, 2018-Ohio-4744, 121 N.E.3d 351, ¶ 21-22; State v. Teitelbaum, 10th Dist.
Franklin No. 19AP-137, 2019-Ohio-3175, ¶ 12. The required showing is as follows:
(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 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.
R.C. 2953.23(A)(1).
Res judicata is applicable to all postconviction proceedings. State v.
Szefcyk, 77 Ohio St. 3d 93, 95, 671 N.E.2d 233 (1996). Under this doctrine, a
defendant who was represented by counsel is barred from raising an issue in a
petition for postconviction relief if the defendant raised or could have raised the
issue at trial or on direct appeal. Id. at syllabus.
Pursuant to R.C. 2953.21(C), a trial court may deny a petition for
postconviction relief without holding an evidentiary hearing where the petition, the
supporting affidavits, the documentary evidence, the files, and the records do not
demonstrate that petitioner set forth sufficient operative facts to establish
substantive grounds for relief. State v. Calhoun, 86 Ohio St. 3d 279, 281, 1999-Ohio-
102, 714 N.E.2d 905.
On appeal, the reviewing court applies the de novo standard to
determine the issue of whether a successive petition for postconviction relief
satisfies the jurisdictional requirement established in R.C. 2953.23. Apanovitch,
155 Ohio St. 3d 358, 2018-Ohio-4744, 121 N.E.3d 351, at ¶ 24.
Considering each of Shabazz Abdul’s claims in turn, we begin with
the claim that following “remand” from his direct appeal in Shabazz Abdul I, a
resentencing occurred in his absence. The opinion in the direct appeal, Shabazz
Abdul I, states: “[t]he defendant’s conviction having been affirmed, any bail pending
appeal is terminated. Case remanded to the trial court for execution of sentence.”
Thus, there was no remand for substantive proceedings; only execution of sentence.
Therefore, the record does not support the claim of a resentencing or any
substantive proceedings occurring in Shabazz Abdul’s absence upon remand from
Shabazz Abdul I. Accordingly, this claim is without merit.
As to the contention that the trial court erred in simply correcting the
sentencing journal entry rather than conducting a new sentencing hearing, this
court rejected this same argument in State v. Opalach, 8th Dist. Cuyahoga No.
100938, 2014-Ohio-5037. This court stated:
Although the trial court properly notified Opalach of parole instead of
postrelease control at the December resentencing, conducting the
resentencing was unnecessary. As previously mentioned, there is no
statutory requirement that a defendant be advised of parole
supervision when convicted of an unclassified felony that carries an
indefinite prison term. See State v. Lawrence, 2d Dist. Montgomery
No. 24513, 2011-Ohio-5813, ¶ 8; R.C. 2929.19. Accordingly, the trial
court did not need to resentence Opalach. The court could have simply
corrected the sentencing entry by eliminating any reference to
postrelease control.
Id. at ¶ 7, citing State v. Evans, 8th Dist. Cuyahoga No. 95692, 2011-Ohio-
2153, ¶ 8-9.
As to Shabazz Abdul’s related claim that the 2012 entry created a new
judgment of conviction that, in turn, created a new final appealable order, this
argument was also rejected in Opalach. Id. at ¶ 8.
In accordance with all of the foregoing, the requirements of R.C.
2953.23 were not satisfied herein, because Shabazz Abdul’s motion does not raise
any constitutional error that could have affected the factfinder’s judgment as to his
guilt. R.C. 2953.23(A)(1)(b). Shabazz Abdul does not identify any new constitutional
right applicable to his case, and he was not “unavoidably prevented” from
discovering the 2009 and 2012 actions raised herein. Therefore, his petition does
not fall within the exceptions permitting a court to consider a late or successive
petition under R.C. 2953.23(A)(1), and it could have been properly dismissed on that
basis alone. See, e.g, State v. Melhado, 10th Dist. Franklin No. 05AP-272, 2006-
Ohio-641, ¶ 18 (“A trial court lacks jurisdiction to hear an untimely filed petition for
post-conviction relief if the two conditions of R.C. 2953.23(A)(1) are not satisfied.”).
Finally, these claims could have been brought during the appeals in Shabazz Abdul
IV or Shabazz Abdul V so they are barred by res judicata.
The trial court did not err in denying the instant petition for
postconviction relief.
Judgment is affirmed.
It is ordered that appellee recover from 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
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
MARY J. BOYLE, P.J., and
SEAN C. GALLAGHER, J., CONCUR