State v. Payton

[Cite as State v. Payton, 2022-Ohio-2829.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
FAYETTE COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2022-01-001
: OPINION
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:
DANIEL G. PAYTON, :
Appellant. :
CRIMINAL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
Case No. CRI20040085
Jess C. Weade, Fayette County Prosecuting Attorney, for appellee.
Daniel G. Payton, pro se.
PIPER, P.J.
{¶ 1} Appellant, Daniel Payton, was indicted for three counts of aggravated murder,
one count of rape, and one count of kidnapping for a series of crimes occurring between
February 5 through February 15 of 2004. Payton pled guilty to one count of aggravated
murder and one count of kidnapping on February 22, 2006. At that time, he signed a plea
form that informed him of the possible sentencing range and other possible sanctions. The
plea form also stated that he was subject to postrelease control. In exchange for his guilty
Fayette CA2022-01-001
plea, the state agreed to dismiss the death specification, as well as the sexually violent
predator specification.
{¶ 2} On March 14, 2006, the trial court entered its judgment entry sentencing
Payton to a 20-years-to-life prison term for aggravated murder and 10 years for kidnapping.
After making the necessary findings, the trial court ordered those terms be served
consecutively. The kidnapping conviction required a period of postrelease control and
therefore was imposed for a period of five years. Payton did not file a direct appeal.1
{¶ 3} On May 18, 2021, Payton filed a motion to "set aside judgment and vacate
plea." The trial court overruled the motion in a written entry stating:
Defendant has filed a motion for relief from his plea and
conviction for Aggravated Murder and Kidnapping. The State
has responded on December 8, 2021.
The Court overruled Defendant's request for relief in each
particular. [sic] Defendant provides no specific citation to the
record, including the plea and sentencing entries,
demonstrating any constitutional infirmity nor has he made any
motion to withdraw his plea. The Court properly imposed Post
Release Control for the Kidnapping sentence. The balance of
Defendant's request for relief have previously been addressed
by this Court and the appellate process and are res judicata not
subject to further review.
{¶ 4} Payton appeals from the trial court's decision, raising a single assignment of
error for review:
{¶ 5} THE LOWER COURT COMMITTED PREJUDICAL ERROR IN FAILING TO
COMPLY WITH THE LEGISLATURE.
{¶ 6} In his sole assignment of error, Payton alleges the trial court erred in "failing
1. This court has previously rejected a petition for postconviction relief from Payton finding his petition
untimely and otherwise barred by res judicata. State v. Payton, 12th Dist. Fayette No. CA2017-05-009 (Dec.
11, 2017) (Accelerated Calendar Judgment Entry).
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to comply with the legislature" when it denied his motion.2 Payton's motion is properly
construed as a petition for postconviction relief. State v. Knowles, 10th Dist. Franklin No.
15AP-991, 2016-Ohio-2859, ¶ 12 (motions to correct or vacate a sentence may properly be
construed as petitions for postconviction relief).
{¶ 7} A postconviction proceeding is not an appeal of a criminal conviction, but
rather, is a collateral civil attack on a criminal judgment. State v. Dillingham, 12th Dist.
Butler Nos. CA2012-02-037 and CA2012-02-042, 2012-Ohio-5841, ¶ 8. "In reviewing an
appeal of postconviction relief proceedings, this court applies an abuse of discretion
standard." State v. Vore, 12th Dist. Warren Nos. CA2012-06-049 and CA2012-10-106,
2013-Ohio-1490, ¶ 10, citing State v. Wagers, 12th Dist. Preble No. CA2011-08-007, 2012-
Ohio-2258, ¶ 15. For this court to find an abuse of discretion we must find more than an
error of judgment; we must find that the trial court's ruling was unreasonable, arbitrary, or
unconscionable. Id. Furthermore, a reviewing court will not overrule the trial court's finding
on a petition for postconviction relief where the finding is supported by competent and
credible evidence. Wagers at ¶ 15.
{¶ 8} R.C. 2953.21(A)(2) provides that a petition for postconviction relief must be
filed no later than 365 days after the date on which the trial transcript is filed with the court
of appeals in the direct appeal, or, if a direct appeal was not pursued, 365 days after the
expiration of the time in which a direct appeal could have been filed.3 Here, Payton did not
file his motion until well beyond the expiration date. The trial court entered its sentencing
entry on March 14, 2006, which he did not directly appeal. His motion was filed on May 18,
2. In his brief, Payton argues that he was not subject to postrelease control for aggravated murder, but omits
discussion of his conviction for kidnapping.
3. Former R.C. 2953.21(A)(2) required the filing of a petition for postconviction relief within 180 days. Payton's
petition was untimely regardless of whether the former 180-day time limit or the extended 365-day time limit
applied. State v. Lawwill, 12th Dist. Warren No. CA2017-03-027, 2017-Ohio-8432, ¶ 17.
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2021, which is clearly outside the applicable time period.
{¶ 9} R.C. 2953.23(A)(1)(a) allows a trial court to entertain an untimely filed petition
for postconviction relief if the petitioner demonstrates either: (1) he was unavoidably
prevented from discovering the facts necessary for the claim for relief; or (2) the United
States Supreme Court has recognized a new federal or state right that applies retroactively
to persons in the petitioner's situation and the petitioner asserts a claim based on that right.
If the petitioner is able to satisfy one of these threshold conditions, he must then
demonstrate that, but for the constitutional error at trial, no reasonable fact finder would
have found him guilty of the offenses of which he was convicted. R.C. 2953.23(A)(1)(b);
State v. Chattams, 12th Dist. Butler No. CA2009-01-011, 2009-Ohio-6172, ¶ 17.
{¶ 10} On appeal, Payton argues that the trial court was not authorized to impose
postrelease control for aggravated murder. Therefore, he claims that his sentence is
"wholly unauthorized and void." He further claims that his plea was not knowing, intelligent,
or voluntary because the trial court "misinformed" him of "supervision and the specific
sanctions for a [sic] 'unclassified' felony."
{¶ 11} Following review, we find Payton's arguments to be without merit. In this
case, Payton has not advanced, nor could he demonstrate, any of the prerequisites for
entertaining an untimely petition for postconviction relief. Payton does not claim he was
unavoidably prevented from discovering facts necessary for his claim of relief or that the
United States Supreme Court has recognized a new federal or state right that applies
retroactively to him. Nor does he assert that, but for a constitutional error at trial, no
reasonable fact finder would have found him guilty of aggravated murder and kidnapping.
Therefore, Payton failed to satisfy the requirements necessary to entertain an untimely
petition for postconviction relief.
{¶ 12} Furthermore, "[i]t is well-established that a trial court may dismiss a
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postconviction relief petition on the basis of the doctrine of res judicata." State v. Davis,
12th Dist. Butler No. CA2012-12-258, 2013-Ohio-3878, ¶ 30. "Under 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 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 or conviction, or on an appeal from that
judgment." State v. Kaufhold, 12th Dist. Butler No. CA2021-03-021, 2021-Ohio-4539, ¶ 15.
Here, Payton could have challenged his sentence or the knowing, intelligent, and voluntary
nature of his guilty plea in a direct appeal, but failed to do so. He now attempts to challenge
his convictions through an untimely petition for postconviction relief, which is not permissible
and is barred by the doctrine of res judicata. We also agree with the trial court that Payton
was subject to postrelease control for kidnapping, and therefore his arguments regarding
the applicability of postrelease control to the crime of aggravated murder are without merit.
For all those reasons, Payton's sole assignment of error is overruled.
{¶ 13} Judgment affirmed.
S. POWELL and BYRNE, JJ., concur.
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