State v. Cox , 2019 Ohio 521 ( 2019 )

[Cite as State v. Cox, 2019-Ohio-521.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
MICHAEL A. COX : Case No. CT2018-0075
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum
County Common Pleas Court
Case No. CR2018-0157
JUDGMENT: Affirmed
DATE OF JUDGMENT: February 11, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
D. MICHAEL HADDOX MICHAEL A. COX, pro se.
27th North Fifth Street Noble Correctional Institution
Post Office Box 189 15708 McConnelsville Road
Zanesville, OH 43702-0189 Caldwell, OH 43724
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Wise, Earle, J.
{¶ 1} Defendant-Appellant Michael A. Cox appeals the October 24, 2018
judgment of the Court of Common Pleas, Muskingum County which denied appellant's
motion for postconviction relief without a hearing. Plaintiff-Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On March 19, 2018, after waiving in writing prosecution by indictment,
appellant pled guilty to a bill of information containing one count of possession of
methamphetamine, a felony of the fifth degree. Appellant waived a pre-sentence
investigation and proceeded to sentencing on March 23, 2018.
{¶ 3} At the sentencing hearing, appellant and the state stipulated that the bill of
information contained a scrivener's error, and the drug listed therein in should have been
cocaine, not methamphetamine. There is no record of this hearing, however, appellant's
sentencing judgment entry indicates possession of cocaine and the judgment entry
appealed from in this matter mentions said stipulation. Appellant was sentenced to 8
months incarceration.
{¶ 4} Appellant did not file a direct appeal of his conviction. Instead, on October
1, 2018, appellant filed a motion for postconviction relief. Therein, appellant set forth one
claim, arguing the state could not cure a fatally defective bill of information as a "clerical
error." On October 25, 2018, the trial court denied appellant's petition without a hearing,
finding his petition was barred by the doctrine of res judicata.
{¶ 5} Appellant subsequently filed an appeal and the matter is now before this
court for consideration. He raises two assignments of error as follows:
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I
{¶ 6} THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING POST-
CONVICTION RELIEF FOR AN UNLAWFUL AMENDMENT TO THE IDENTITY OF AN
OFFENSE
II
{¶ 7} THE TRIAL COURT LACKED JURISDICTION TO AMEND THE FATALLY
DEFECTIVE BILL OF INFORMATION AFTER ACCEPTING A GUILTY PLEA TO IT.
I, II
{¶ 8} Appellant's first and second assignments of error reach a common
resolution. We therefore address them together.
{¶ 9} In his first assignment of error, appellant argues the trial court erred in
denying his motion for postconviction relief because the bill of information speculated as
to what the drugs involved actually were, that the testimony of a lay person questioned
the identity of the offense, and that the amendment to the bill of information came after
appellant's plea of guilty. Appellant further alleges judicial bias. In his second assignment
of error, appellant argues the trial court lacked jurisdiction to amend the bill of information
as it was fatally defective. Each of appellant's complaints are res judicata.
{¶ 10} Although designed to address claimed constitutional violations, the post-
conviction relief process is a civil collateral attack on a criminal judgment, not an appeal
of that judgment. State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905 (1999); State
v. Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d 67 (1994). A petition for post-conviction
relief does not provide a petitioner a second opportunity to litigate his conviction, nor is
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the petitioner automatically entitled to an evidentiary hearing on the petition. State v.
Lewis, 5th Dist. Stark No.2007CA00358, 2008-Ohio-3113, ¶ 8, citing State v. Jackson,
64 Ohio St.2d 107, 110, 413 N.E.2d 819(1980).
{¶ 11} Under 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 93, 671 N.E.2d 233 (1996), syllabus, approving and following
State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus.
It is well settled that, “pursuant to res judicata, a defendant cannot raise an issue in a
[petition] for post-conviction relief if he or she could have raised the issue on direct
appeal.” State v. Reynolds, 79 Ohio St.3d 158, 161, 679 N.E.2d 1131 (1997). Accordingly,
“[t]o survive preclusion by res judicata, a petitioner must produce new evidence that would
render the judgment void or voidable and must also show that he could not have appealed
the claim based upon information contained in the original record.” State v. Nemchik, 9th
Dist. Lorain No. 98CA007279, 2000 WL 254908 (Mar. 8, 2000); see, also, State v. Ferko,
9th Dist. Summit No. 20608, 2001 WL 1162835 (Oct. 3, 2001). The presentation of
competent, relevant, and material evidence dehors the record may defeat the application
of res judicata. See State v. Smith, 17 Ohio St.3d 98, 101, 17 OBR 219, 221, 477 N.E.2d
1128, 1131–1132(1985), fn. 1.
{¶ 12} First, as for appellant's judicial bias claim, “Pursuant to R.C. 2701.03, only
the chief justice of the Supreme Court of Ohio or his or her designee has the authority to
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determine a claim that a common pleas court judge is biased or prejudiced.” Stanley v.
Ohio State Univ. Med. Ctr., 10th Dist. No. 12AP-999, 2013-Ohio-5140, ¶ 94. Accordingly,
we are without jurisdiction to consider appellant's claim and reject the same.
{¶ 13} As to appellant's remaining arguments, appellant could have raised each
argument in a direct appeal, but failed to do so. A petition for postconviction relief is not
a substitute for a direct appeal. State v. Holliday, 5th Dist. Delaware No. 2012-Ohio-2376¶ 17 citing State v. Thompson, 9th Dist. 11CAA110104, 2009-Ohio-200. Because
appellant could have raised his arguments in a direct appeal, they are barred in this
proceeding by the doctrine of res judicata. The trial court therefore did not err in denying
appellant's petition for postconviction relief.
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{¶ 14} The October 25, 2018 Judgment Entry of the Muskingum County Court of
Common Pleas is affirmed.
By Wise, Earle, J.
Hoffman, P.J. and
Wise, John, J. concur.
EEW/rw