State v. DeVaughns , 2021 Ohio 729 ( 2021 )

[Cite as State v. DeVaughns, 2021-Ohio-729.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28937
:
v. : Trial Court Case No. 2006-CR-843
:
CHRISTOPHER DEVAUGHNS : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 12th day of March, 2021.
...........
MATHIAS H. HECK, JR., by JAMIE J. RIZZO, Atty. Reg. No. 0099218, 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
CHRISTOPHER DEVAUGHNS, Inmate No. 525-249, London Correctional Institution,
P.O. Box 69, London, Ohio 43140
Defendant-Appellant, Pro Se
.............
TUCKER, P.J.
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{¶ 1} Christopher DeVaughns appeals from the trial court’s denial of his petition
for post-conviction relief. Because the trial court correctly concluded that all of
DeVaughns’s claims were barred by the doctrine of res judicata, the trial court’s judgment
will be affirmed.
Facts and Procedural History
{¶ 2} In 2006, DeVaughns was convicted of felonious assault and kidnapping. In
DeVaughns’s direct appeal, we rejected his assignments of error, with one exception.
State v. DeVaughns, 2d Dist. Montgomery No. 21654, 2007-Ohio-3455. The exception
was the trial court’s failure to provide DeVaughns with an opportunity to address the court
before the sentence was imposed. Id. On remand, DeVaughns was provided an
allocution opportunity, and the record reflects that he took advantage of this opportunity.
The trial court imposed the same sentence, and DeVaughns once again appealed;
DeVaughns asserted that his convictions had been obtained through perjured testimony,
and that trial counsel had been ineffective. We rejected these claims as being beyond
the scope of the resentencing appeal, and we affirmed the trial court’s resentencing
judgment. State v. DeVaughns, 2d Dist. Montgomery No. 22349, 2008-Ohio-4010.
Pertinent to the present appeal, DeVaughns also asserted at that time that the sentence
was subject to reversal because he had been represented by a stand-in attorney at the
resentencing hearing. We rejected this argument because the record reflected that
DeVaughns had voluntarily consented to stand-in counsel at the resentencing hearing.
Id. at ¶ 30.
{¶ 3} Eleven years later, in September 2019, DeVaughns filed a document
asserting a right to post-conviction relief under R.C. 2953.21. Specifically, DeVaughns
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asserted that his constitutional right to counsel had been violated at the resentencing
hearing because his attorney did not attend the hearing, and the stand-in attorney
provided ineffective assistance. Referring to DeVaughns’s filing as a motion, the trial
court overruled the motion based upon the doctrine of res judicata. This appeal followed.
Analysis
{¶ 4} Consistent with the trial court’s analysis, and without consideration of the
petition’s timeliness or its successive nature,1 we conclude that DeVaughns’s petition
seeking post-conviction relief was barred by the doctrine of res judicata. “Under the
doctrine of res judicata, a final judgment * * * bars the convicted defendant from raising
and litigating in any proceeding, except an appeal from that judgment, any defense [or
claimed constitutional deficiency] that was raised or could have been raised * * * [in] an
appeal [from the judgment].” State v. Goldwire, 2d Dist. Montgomery No. 20838, 2005-
Ohio-5784, ¶ 11, quoting State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967).
DeVaughns either raised, or could have raised, the stand-in attorney claims he now
asserts in the direct appeal of the resentencing judgment. As such, these claims are
barred by res judicata. The trial court’s judgment is affirmed on this basis.
1
At the relevant time, unless an exception was present, a defendant had to file a petition
for post-conviction relief no later than 180 days after the trial transcript for the direct
appeal was filed in the court of appeals. The filing deadline is now 365 days after the
trial transcript is filed in the court of appeals. The conditions that allow a late filing are
that the petitioner was unavoidably prevented from discovering the facts in support of the
petition or that the United States Supreme Court has recognized a new state or federal
right applicable to the defendant’s situation and which has retroactive application.
DeVaughns’s petition was filed late, and neither situation sanctioning a late filing was
asserted. Moreover, R.C. 2953.23(A) bars a trial court from entertaining a successive
petition for post-conviction relief. The record reflects that this was not DeVaughns’s first
petition for post-conviction relief. A trial court is without jurisdiction to consider a petition
seeking post-conviction relief which is either untimely or successive. State v.
DeVaughns, 2017-Ohio-475, 84 N.E.3d 332 (2d Dist.).
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Conclusion
{¶ 5} The judgment of the Montgomery County Common Pleas Court is affirmed.
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DONOVAN, J. and WELBAUM, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Jamie J. Rizzo
Christopher DeVaughns
Hon. Gregory F. Singer