State v. Clemmons

[Cite as State v. Clemmons, 2022-Ohio-27.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 29204
:
v. : Trial Court Case No. 2007-CR-4544
:
GREGORY CLEMMONS : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 7th day of January, 2022.
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MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, 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
GREGORY CLEMMONS, Inmate No. A577-226, London Correctional Institution, P.O.
Box 69, London, Ohio 43140
Defendant-Appellant, Pro Se
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WELBAUM, J.
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{¶ 1} Defendant-appellant, Gregory Clemmons, appeals pro se from a judgment
of the Montgomery County Court of Common Pleas, which denied his post-conviction
“Claim of Actual Innocence.” For the reasons outlined below, the judgment of the trial
court will be affirmed.
Facts and Course of Proceedings
{¶ 2} In April 2008, a jury found Clemmons guilty of rape of a child under the age
of ten. The trial court sentenced Clemmons to 15 years to life in prison and designated
him a Tier III sex offender. Clemmons thereafter appealed from his conviction, which
this court affirmed in State v. Clemmons, 2d Dist. Montgomery No. 22749, 2009-Ohio-
2066 (“Clemmons I”).
{¶ 3} In February 2009, Clemmons filed a petition for post-conviction relief. In the
petition, Clemmons argued that his conviction was not supported by sufficient evidence
and that his trial counsel was ineffective for failing to file a notice of alibi and for failing to
call alibi witnesses at trial. The trial court denied Clemmons’s petition and Clemmons
appealed. This court subsequently dismissed Clemmons’s appeal for his failure to
prosecute the matter. State v. Clemmons, 2d Dist. Montgomery No. 23629 (Decision &
Final Judgment Entry, Jan. 25, 2010).
{¶ 4} In August 2010, Clemmons filed an application to have DNA testing
performed on discharge found in the victim’s underwear in an effort to establish his
innocence. In the application, Clemmons also made various arguments about ineffective
assistance of counsel and violations of his right to confront the witnesses against him.
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The trial court denied Clemmons’s motion, and we affirmed that decision in State v.
Clemmons, 2d Dist. Montgomery No. 24377, 2011-Ohio-4474 (“Clemmons II”).
{¶ 5} On August 18, 2017, Clemmons filed a “Motion to Correct an Illegal
Sentence,” in which he claimed that the trial court had failed to properly notify him of post-
release control. Clemmons argued that while his post-release control obligation had
been included in his sentencing entry, he had not been notified of the obligation at the
sentencing hearing. In response to Clemmons’s motion, the trial court held a
resentencing hearing and orally imposed post-release control. The trial court also filed
an amended sentencing entry, which reiterated the previously-imposed sentence and
indicated that Clemmons had been resentenced for post-release control purposes only.
{¶ 6} During the resentencing hearing, Clemmons argued that the State had used
false testimony to obtain his conviction and that the jury had not been made aware of all
the varying accusations against him. In response, the trial court advised Clemmons that
the resentencing hearing was solely for the purpose of imposing post-release control and
that all of Clemmons’s arguments were barred by res judicata. Clemmons thereafter
appealed from the amended sentencing entry and raised several arguments relating to
pretrial and trial matters underlying his original conviction.
{¶ 7} On July 13, 2018, this court affirmed the trial court’s amended sentencing
entry. In so holding, we agreed that Clemmons’s arguments relating to pretrial and trial
matters were barred by res judicata. State v. Clemmons, 2d Dist. Montgomery No.
27769, 2018-Ohio-2747 (“Clemmons III”).
{¶ 8} On March 26, 2018, while Clemmons’s appeal from the amended sentencing
entry was still pending, Clemmons filed a second petition for post-conviction relief
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claiming that his trial counsel had rendered ineffective assistance by failing to: (1)
investigate the victim’s rape allegations and Clemmons’s alibi; (2) investigate
inconsistencies in the victim’s statements to the government; (3) consult with an expert
witness regarding the victim’s forensic interview; and (4) call certain witnesses at trial
whom Clemmons believed would have aided his defense.
{¶ 9} On July 6, 2018, the trial court overruled Clemmons’s petition as untimely
and impermissibly successive. The trial court also determined that Clemmons’s
ineffective assistance claims were barred by the doctrine of res judicata. Clemmons
thereafter appealed from the trial court’s decision, which we affirmed in State v.
Clemmons, 2d Dist. Montgomery No. 28085, 2019-Ohio-2997 (“Clemmons IV”).
{¶ 10} On May 17, 2021, Clemmons filed a “Claim of Actual Innocence,” wherein
Clemmons alleged that his rape conviction was void because he was, for various reasons,
denied his constitutional rights to a fair trial and due process. Specifically, Clemmons
argued that: (1) the State had engaged in prosecutorial misconduct by knowingly
presenting perjured testimony, failing to disclose evidence favorable to Clemmons, failing
to correct false testimony, and interjecting the State’s opinions about Clemmons’s guilt
during closing argument; (2) his conviction was not supported by sufficient evidence
because the State did not produce substantial, competent evidence on all elements of the
rape offense as charged in the indictment; and (3) his trial counsel had provided
ineffective assistance because counsel failed to interview witnesses prior to trial, present
case law in Clemmons’s defense, challenge certain trial exhibits submitted by the State,
have Clemmons’s mental competency assessed by a psychiatrist, object to certain
witness testimony and the State’s closing argument, request a lesser-included-offense
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jury instruction, obtain exculpatory evidence and DNA testing, and request an evidentiary
hearing on alleged Brady material.
{¶ 11} On July 2, 2021, the trial court issued a decision denying Clemmons’s
“Claim of Actual Innocence.” In so holding, the trial court found that it was an untimely,
successive petition for post-conviction relief that the trial court lacked jurisdiction to
consider. The trial court also found that the arguments raised by Clemmons in the “Claim
of Actual Innocence” were barred by the doctrine of res judicata.
{¶ 12} Clemmons now appeals from the trial court’s denial of his “Claim of Actual
Innocence,” raising four assignments of error for review. For purposes of clarity, we will
address Clemmons’s assignments of error out of order.
Fourth Assignment of Error
{¶ 13} Under his fourth assignment of error, Clemmons contends that the trial court
erred by construing his “Claim of Actual Innocence” as a petition for post-conviction relief.
We disagree.
{¶ 14} “Courts may recast irregular motions into whatever category necessary to
identify and establish the criteria by which the motion should be judged.” State v. Schlee,
117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12, citing State v. Bush, 96 Ohio
St.3d 235, 2002-Ohio-3993, 773 N.E.2d 522, ¶ 10. (Other citation omitted.) “When a
motion is filed subsequent to a direct appeal * * *, claims the denial of constitutional rights,
seeks to render the judgment of conviction void, and asks for vacation of the judgment
and sentence, the motion is properly construed as a petition for post[-]conviction relief.”
State v. Housley, 2d Dist. Miami No. 2019-CA-12, 2020-Ohio-1143, ¶ 15, citing State v.
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Reynolds, 79 Ohio St.3d 158, 160, 679 N.E.2d 1131 (1997). (Other citation omitted.)
“The court should construe such a motion as a petition for post-conviction relief despite
the caption given to the motion by the criminal defendant.” (Citations omitted.) State v.
Raypole, 12th Dist. Fayette No. CA99-05-012, 1999 WL 1042574, *3 (Nov. 15, 1999).
See also State v. Sage, 2d Dist. Montgomery No. 28519, 2020-Ohio-3575, ¶ 10.
{¶ 15} In this case, Clemmons’s “Claim of Actual Innocence” was filed after his
direct appeal. Clemmons’s “Claim of Actual Innocence” also sought the vacation of his
rape conviction on grounds that his conviction was void because he was denied his
constitutional rights to a fair trial and due process. Therefore, Clemmons’s “Claim of
Actual Innocence” satisfied all the criteria for it to be properly construed as a petition for
post-conviction relief.
{¶ 16} For the reasons outlined above, Clemmons’s fourth assignment of error is
overruled.
First, Second, and Third Assignments of Error
{¶ 17} Under his first, second, and third assignments of error, Clemmons raises
the same arguments that he raised in his “Claim of Actual Innocence.” As previously
noted, those arguments are: (1) the State had engaged in prosecutorial misconduct by
knowingly presenting perjured testimony, failing to disclose evidence favorable to
Clemmons, failing to correct false testimony, and interjecting the State’s opinions about
Clemmons’s guilt during closing argument; (2) his conviction was not supported by
sufficient evidence because the State did not produce substantial, competent evidence
on all elements of the rape offense as charged in the indictment; and (3) his trial counsel
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had provided ineffective assistance because counsel failed to interview witnesses prior
to trial, present case law in Clemmons’s defense, challenge certain trial exhibits submitted
by the State, have Clemmons’s mental competency assessed by a psychiatrist, object to
certain witness testimony and the State’s closing argument, request a lesser-included-
offense jury instruction, obtain exculpatory evidence and DNA testing, and request an
evidentiary hearing on alleged Brady material.
{¶ 18} We have already determined under Clemmons’s fourth assignment of error
that his “Claim of Actual Innocence” was properly construed as a petition for post-
conviction relief. Petitions for post-conviction relief are governed by R.C. 2953.21
through R.C. 2953.23. Under these statutes, any defendant who has been convicted of
a criminal offense and who claims to have experienced a denial or infringement of his or
her constitutional rights may petition the trial court to vacate or set aside the judgment
and sentence. R.C. 2953.21(A).
{¶ 19} When, as in this case, a direct appeal from a conviction has been taken, a
petition for post-conviction relief must be filed no later than 365 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. R.C. 2953.21(A)(2). A trial court lacks jurisdiction to consider an untimely
petition for post-conviction relief unless the untimeliness is excused under R.C.
2953.23(A). State v. Current, 2d Dist. Champaign No. 2012-CA-33, 2013-Ohio-1921,
¶ 16, citing State v. Johnson, 2d Dist. Montgomery No. 24775, 2012-Ohio-2542, ¶ 11.
(Other citations omitted.)
{¶ 20} “Pursuant to R.C. 2953.23(A)(1)(a), a defendant may not file an untimely or
successive petition for post-conviction relief unless (1) the defendant was unavoidably
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prevented from discovering the facts upon which he or she relies to present the claim, or
(2) the United States Supreme Court recognizes a new federal or state right that applies
retroactively to his or her situation and the petition asserts a claim based on that right.”
State v. Baker, 2d Dist. Montgomery No. 27596, 2017-Ohio-8602, ¶ 13. “The petitioner
must also show by clear and convincing evidence that, if not for the constitutional error
from which he suffered, no reasonable factfinder would have found him guilty.” Id., citing
R.C. 2953.23(A)(1)(b).
{¶ 21} In this case, Clemmons’s direct appeal was decided by this court 12 years
ago in 2009. Clemmons’s May 17, 2021 “Claim of Actual Innocence,” i.e., petition for
post-conviction relief, was therefore untimely as it was filed well beyond the 365-day
deadline set forth in R.C. 2953.21(A)(2).1 The petition was also a successive petition as
Clemmons previously had filed petitions for post-conviction relief in 2009 and 2018.
Because Clemmons’s “Claim of Actual Innocence” was an untimely, successive petition
for post-conviction relief, in order for the trial court to have jurisdiction to consider the
petition, Clemmons must have been unavoidably prevented from discovering the facts on
which the claims in his petition were based or the claims must have been based on a new
federal or state right.
{¶ 22} Upon review, we find that the claims raised in Clemmons’s petition were, in
essence, the same claims that he raised in his prior appeals and petitions. See
1 Effective March 23, 2015, the deadline for filing petitions for post-conviction relief was
changed from 180 days after the date on which the trial transcript is filed with the appellate
court in the direct appeal to 365 days. Sub.H.B. 663, 2014 Ohio Laws 179. Under either
deadline, Clemmons’s petition was untimely, as he filed the trial transcript with this court
for his direct appeal on August 15, 2008, and then filed his post-conviction “Claim of
Actual Innocence” 4,658 days later on May 17, 2021.
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Clemmons I, 2d Dist. Montgomery No. 22749, 2009-Ohio-2066, at ¶ 6-23 (finding
Clemmons’s rape conviction was supported by sufficient evidence and was not against
the manifest weight of the evidence); Clemmons III, 2d Dist. Montgomery No. 27769,
2018-Ohio-2747, at ¶ 9-13 (finding res judicata barred Clemmons from raising claims
related to prosecutorial misconduct at trial, the sufficiency of his indictment, the State’s
failure to disclose prior witness statements, and the trial court’s reliance on perjured
testimony); Clemmons IV, 2d Dist. Montgomery No. 28085, 2019-Ohio-2997, at ¶ 22-25
(finding res judicata barred Clemmons from raising claims of ineffective assistance of
counsel and other trial-related matters). We also find that none of the claims raised in
Clemmons’s petition were based on newly discovered facts that Clemmons was
unavoidably prevented from discovering or a new federal or state right. Therefore, the
trial court lacked jurisdiction to consider Clemmons’s untimely, successive petition and
properly denied the petition on that basis.
{¶ 23} We also find that the claims raised in Clemmons’s petition were barred by
the doctrine of res judicata. “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. Perry, 10 Ohio St.2d 175, 176, 226 N.E.2d 104 (1967), paragraph
nine of the syllabus. Res judicata also applies to any claim that was raised or could have
been raised in a prior petition for post-conviction relief. State v. Dixon, 2d Dist.
Montgomery No. 27991, 2019-Ohio-230, ¶ 18; State v. McCain, 2d Dist. Montgomery No.
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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”).
{¶ 24} In this case, all of the claims raised in Clemmons's “Claim of Actual
Innocence” could have been raised in his direct appeal or in his prior post-conviction relief
petitions. Therefore, the trial court correctly determined that those claims were barred
by the doctrine of res judicata.
{¶ 25} For the foregoing reasons, Clemmons’s first, second, and third assignments
of error are overruled.
Conclusion
{¶ 26} Having overruled all four assignments of error raised by Clemmons, the
judgment of the trial court is affirmed.
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TUCKER, P.J. and EPLEY, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Andrew T. French
Gregory Clemmons
Hon. Mary Katherine Huffman