State v. Dixon , 2019 Ohio 230 ( 2019 )

[Cite as State v. Dixon, 2019-Ohio-230.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 27991
:
v. : Trial Court Case No. 2005-CR-4213/4
:
WILLIAM DIXON : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 25th day of January, 2019.
...........
MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
WILLIAM DIXON, Inmate No. 529-169, Toledo Correctional Institution, P.O. Box 80033,
Toledo, Ohio 43608
Defendant-Appellant, Pro Se
.............
WELBAUM, P.J.
-2-
{¶ 1} Defendant-appellant, William Dixon, appeals pro se from the order of the
Montgomery County Court of Common Pleas denying his “Motion to Correct Illegal
Sentence” and “Motion to Supplement.” For the reasons outlined below, the judgment
of the trial court will be affirmed.
Facts and Course of Proceedings
{¶ 2} In 2005, Dixon was one of four people who acted in concert to rob a residence
on Lynnaway Drive in Dayton, Ohio. The resident of the property was able to prevent
the robbery, but was shot and injured by one of Dixon’s co-conspirators in the process.
Dixon and his co-conspirators fled the scene after the attempted robbery, but were later
arrested and indicted for complicity to commit aggravated robbery, complicity to commit
aggravated burglary, complicity to commit felonious assault, and three attendant firearm
specifications.
{¶ 3} By the time Dixon’s case went to trial, his co-conspirators had already pled
guilty to the indicted charges and were serving their respective prison sentences. Prior
to his trial, Dixon filed two motions to suppress and several pro se motions, all of which
the trial court overruled. On the first day of trial, the trial court also overruled a last-
minute request by Dixon to retain different counsel. Later on, Dixon moved for a mistrial
twice in response to the State presenting witness testimony indicating that he had
engaged in prior robberies. However, the trial court overruled those motions as well.
{¶ 4} In proceeding with trial, the State presented evidence showing that Dixon had
planned the robbery, purchased the clothing worn during the robbery, drawn a map of the
-3-
area around the Lynnaway residence, led his co-conspirators to the Lynnaway residence,
and provided the weapon and ammunition used during the robbery attempt. In light of
this evidence, the jury found Dixon guilty of all the indicted charges and specifications.
{¶ 5} Following the jury’s verdict, the trial court sentenced Dixon to an aggregate
term of 21 years in prison. Dixon then appealed from his conviction and sentence
claiming: (1) the trial court erred in imposing consecutive, maximum sentences; (2) the
trial court abused its discretion in denying his last-minute request to replace counsel; (3)
the trial court abused its discretion in failing to declare a mistrial; (4) his convictions were
against the manifest weight of the evidence; and (5) his trial counsel provided ineffective
assistance. In support of his ineffective assistance claim, Dixon alleged that his trial
counsel denied him his right to testify at trial and failed to interview and subpoena key
defense witnesses. We rejected all of Dixon’s claims and affirmed his conviction and
sentence. See State v. Dixon, 2d Dist. Montgomery No. 21823, 2008-Ohio-755 (Dixon
I).
{¶ 6} While his appeal in Dixon I was pending, Dixon filed a petition for
postconviction relief with the trial court. In the petition, Dixon raised several claims,
including the same ineffective assistance claims raised in his direct appeal. Dixon also
raised a claim of prosecutorial misconduct alleging that the State knowingly presented
false testimony and withheld exculpatory evidence at trial. After our decision in Dixon I
was issued, the trial court denied Dixon’s petition for postconviction relief, and Dixon
appealed. On appeal, we determined that the claims raised in Dixon’s petition for
postconviction relief either lacked merit or were barred by res judicata. Accordingly, we
affirmed the trial court’s judgment denying Dixon’s petition. See State v. Dixon, 2d Dist.
-4-
Montgomery No. 23592, 2010-Ohio-2635 (Dixon II).
{¶ 7} Five years after our decision in Dixon II, Dixon filed five pro se motions with
the trial court entitled: (1) “Motion of Notice of Brief”; (2) “Motion to Submit Brief and Three
Appendices”; (3) “Motion to Seal Records and Proceedings and Motion for New Trial”; (4)
“Motion for Summary Judgment”; and (5) “Motion for New Trial for the New Evidence.”
The trial court overruled all five motions in a single order, and Dixon thereafter appealed.
{¶ 8} In this third appeal, Dixon raised several claims, including the same claims
of prosecutorial misconduct and ineffective assistance of counsel that he raised in Dixon
II. Dixon also claimed his trial counsel was ineffective for failing to file a witness list and
pertinent motions such as a motion to change venue, a motion to transfer the case to
another judge, and a motion to determine witness reliability. Dixon further claimed that
his trial counsel paid a private investigator to threaten witnesses. After reviewing the
matter, we once again found that Dixon’s claims either lacked merit or were barred by res
judicata. Therefore, we affirmed the trial court’s order overruling Dixon’s five pro se
motions. See State v. Dixon, 2d Dist. Montgomery No. 26873, 2016-Ohio-5538 (Dixon
III).
{¶ 9} Approximately eight months after our decision in Dixon III, Dixon filed a pro
se motion for relief from judgment with the trial court. In support of this motion, Dixon
argued that his sentence was void due to the trial court’s failure to merge allied offenses
of similar import at sentencing. The trial court, however, denied the motion on grounds
that res judicata applied to Dixon’s allied offenses claim. Dixon appealed, and we agreed
that the allied offenses claim was barred by res judicata since it could have been, but was
not, raised on direct appeal. See State v. Dixon, 2d Dist. Montgomery No. 27652, 2018-
-5-
Ohio-192 (Dixon IV).
{¶ 10} A month after our decision in Dixon IV, Dixon filed a pro se “Motion to Vacate
a Void Sentence Per Criminal Rule 52(B).” Shortly thereafter, Dixon filed a supplement
to that motion. The trial court denied both motions on grounds that the arguments raised
therein were previously rejected on appeal and barred by res judicata. Dixon thereafter
appealed from the trial court’s order.
{¶ 11} During this fifth appeal, Dixon once again argued that the trial court erred in
failing to merge allied offenses and by imposing consecutive sentences. Dixon also
challenged the disparity between his sentence and the sentences received by his co-
conspirators. In addition, Dixon argued that his trial and appellate counsels were
ineffective for failing to properly raise the aforementioned sentencing issues at trial and
on direct appeal. Dixon further argued that the evidence adduced at trial was insufficient
to support his convictions, the State committed prosecutorial misconduct at trial, and the
trial court was biased against him because it falsely believed he was anti-Semitic based
upon a statement made during sentencing. We rejected each of Dixon’s claims on res
judicata grounds since the claims were either raised in one of Dixon’s prior appeals or
could have been raised on direct appeal. Accordingly, we affirmed the trial court’s order
denying Dixon’s motion to vacate sentence and the corresponding supplemental motion.
See State v. Dixon, 2d Dist. Montgomery No. 27961, 2018-Ohio-4138 (Dixon V).
{¶ 12} The instant appeal concerns a pro se “Motion to Correct Illegal Sentence”
filed by Dixon on March 26, 2018, and a supplement to that motion filed by Dixon on April
10, 2018. In these motions, Dixon raised the same arguments that he had previously
raised in Dixon I through V. As it had done previously, the trial court denied the motions
-6-
on res judicata grounds. Dixon now appeals from that order, raising three assignments
of error for review.
Assignments of Error
{¶ 13} Under his first assignment of error, Dixon contends his trial counsel
rendered ineffective assistance for failing to file a witness list, a motion for a lesser
offense, a motion to dismiss, a motion for bill of particulars, a motion to suppress, and a
motion for change of venue. Dixon also claims his trial counsel failed to interview
defense witnesses, failed to obtain documents to impeach the State’s witnesses, and paid
a private investigator to threaten defense witnesses to leave town. Dixon further claims
that his trial counsel engaged in certain conduct before and during trial that purposely
sabotaged his defense. Dixon also claims both his trial and appellate counsels were
ineffective for failing to raise the issue of allied offenses at sentencing and on direct
appeal.
{¶ 14} Under his second assignment of error, Dixon contends the State engaged
in prosecutorial misconduct by coaching witnesses and knowingly submitting false
witness testimony at trial.
{¶ 15} Under his third assignment of error, Dixon contends he was denied due
process as a result of judicial bias and the disparity between his sentence and the
sentences received by his co-conspirators. Dixon also contends the trial court did not
make the necessary statutory findings at sentencing and failed to merge allied offenses
of similar import. Dixon further claims his sentence is excessive and in violation of the
Eighth Amendment’s prohibition against cruel and unusual punishment.
-7-
{¶ 16} After a thorough review of the record, we find that all of the foregoing
arguments raised by Dixon are barred by the doctrine of res judicata.
Law and Analysis
{¶ 17} “Pursuant to the doctrine of res judicata, a valid final judgment on the merits
bars all subsequent actions based on any claim arising out of the transaction or
occurrence that was the subject matter of the previous action.” State v. Collins, 2d Dist.
Montgomery No. 25612, 2013-Ohio-3645, ¶ 9, citing Grava v. Parkman Twp., 73 Ohio
St.3d 379, 653 N.E.2d 226 (1995). “The res judicata bar applies to any issue that was
raised or could have been raised in a criminal defendant’s prior appeal from his conviction
or any other final appealable order.” State v. Collins, 2d Dist. Montgomery No. 27939,
2018-Ohio-4760, ¶ 14, citing State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967).
Therefore, “[w]hen a petitioner seeks postconviction relief on an issue that was raised or
could have been raised on direct appeal, the petition is properly denied by the application
of the doctrine of res judicata.” State v. Jennison, 5th Dist. Coshocton No. 2015-CA-
0003, 2015-Ohio-3204, ¶ 9, citing State v. Tucker, 8th Dist. Cuyahoga No. 84595, 2005-
Ohio-109, ¶ 11. (Other citation omitted.)
{¶ 18} Res judicata also bars claims that could or should have been brought in a
first petition for postconviction relief. State v. Finfrock, 2d Dist. Montgomery No. 16944,
1998 WL 726478, *5 (Oct. 16, 1998); State v. McCain, 2d Dist. Montgomery No. 27195,
2017-Ohio-7518, ¶ 35 (“res judicata applies to bar raising piecemeal claims in successive
post-conviction relief petitions * * * that could have been raised, but were not, in the first
post-conviction relief petition”). “While Ohio law may permit the filing of multiple
-8-
petitions, a petitioner does not have carte blanche to file successive petitions endlessly.”
(Emphasis sic.) State v. Cotton, 8th Dist. Cuyahoga Nos. 71234 and 71235, 1997 WL
232672, *3 (May 8, 1997), citing State v. Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d 67(1994). In addition, “[t]rial courts are not required to entertain successive petitions which
allege the same grounds as an earlier petition.” State v. Williams, 8th Dist. Cuyahoga
No. 68613, 1996 WL 17333, *2 (Jan. 18, 1996), citing Steffen at 411. (Other citations
omitted.)
{¶ 19} The instant appeal represents yet another attempt by Dixon to obtain
postconviction relief under R.C. 2953.21. “To prevail on a petition for post-conviction
relief, the defendant must establish a violation of his constitutional rights which renders
the judgment of conviction void or voidable.” State v. Rollins, 2d Dist. Champaign No.
2018-CA-3, 2018-Ohio-4525, ¶ 10, citing R.C. 2953.21. In this case, all the claims raised
in support of Dixon’s petition/“Motion to Correct Illegal Sentence” were barred by res
judicata because they were either already raised and addressed in one of Dixon’s prior
five appeals or they could have been raised by Dixon during his direct appeal or in one of
his prior petitions for postconviction relief. Because all of Dixon’s claims are barred by
res judicata, his first, second, and third assignments of error are overruled.
Conclusion
{¶ 20} Having overruled all assignments of error raised by Dixon, the judgment of
the trial court is affirmed.
.............
FROELICH, J. and TUCKER, J., concur.
-9-
Copies sent to:
Mathias H. Heck, Jr.
Sarah E. Hutnik
William Dixon
Hon. Steven K. Dankof