[Cite as State v. Pound, 2012-Ohio-3392.]




         IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                   :

        Plaintiff-Appellee                      :    C.A. CASE NOS. 24789/24980

vs.                                             :    T.C. CASE NO. 96CR3873/3

NICKEY L. POUND, SR.                            :    (Criminal Appeal from
                                                      Common Pleas Court)
        Defendant-Appellant                     :

                                            .........

                                            OPINION

                             Rendered on the 27th day of July, 2012.

                                            .........

Mathias H. Heck, Jr., Pros. Attorney; Michele D. Phipps, Asst. Pros. Attorney, Atty.
Reg. No. 0069829, P.O. Box 972, Dayton, OH 45422
      Attorneys for Plaintiff-Appellee

Nickey L. Pound, Sr., #350-806, L.E.C.I., P.O. Box 56, Lebanon, OH 45036
      Defendant-Appellant, Pro se

                                            .........

CANNON, J., sitting by assignment:

        {¶ 1} Appellant, Nickey Lee Pound, Sr., a.k.a. “Dog,” appeals the judgment of the

Montgomery County Court of Common Pleas denying his petitions for postconviction relief.

For the reasons that follow, the judgment is affirmed.
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       {¶ 2} On August 29, 1997, Pound was convicted, after trial by jury, of aggravated

murder, attempted murder, felonious assault, improperly discharging a firearm at or into an

occupied structure, having weapons while under disability, and multiple firearm

specifications. The trial court sentenced Pound to consecutive sentences as follows: 20 years

to life imprisonment for aggravated murder, nine years for attempted murder, seven years for

felonious assault, four years for improperly discharging a firearm at or into a habitation, and

three years for merged firearm specifications. The trial court additionally sentenced Pound to

a concurrent term of 11 months for having weapons while under disability.

       {¶ 3} This court affirmed Pound’s conviction in State v. Pound, 2d Dist.

Montgomery No. 16834, 1998 WL 636996 (Sept. 18, 1998). Shortly thereafter, Pound filed a

petition to vacate his sentence, which was construed as a postconviction relief petition.

Pound argued that new evidence surfaced indicating that a witness, Elvis Wooliver,

committed perjury at his trial. He also argued that he had received ineffective assistance of

counsel. The trial court denied the petition.

       {¶ 4} In 2008, Pound again filed a motion to vacate his sentence on the ground that

Wooliver committed perjury at his trial. The motion, construed as a postconviction relief

petition, was again denied.    In 2009, Pound filed his third petition, again alleging that

Wooliver committed perjury at his trial. In 2011, Pound filed his fourth petition, advancing

the same argument as his previous petitions.

       {¶ 5} In two August 2011 entries, the trial court denied Pound’s 2009 and 2011

petitions. Pound, pro se, now timely appeals from these denials and asserts three assignments
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of error for consideration by this court. This court, sua sponte, consolidated the respective

appeals. Pound’s first and second assignments of error state:

               [1.] The trial court erred when it allowed a conviction to stand in a post

       conviction proceeding when that conviction was proven to have been obtained

       through the use of known perjured testimony of which clearly affected the

       jury’s verdict.   The trial court did not afford the multiple affidavits and

       evidence the deference it was due them [sic] and all of this violated the

       appellant’s constitutional right to a fair trial and the due process of law under

       the 5th and 14th Amendments of the U.S. Constitution and Section 16, Article

       1 of the Ohio Constitution.

               [2.] The trial court erred in not conducting a hearing on this appellant’s

       petition after a substantial showing was made of both constitutional error and

       the unavoidable delay which is enhanced by the fact that the court considered

       one petition for over three years.      All of which denied this appellant his

       constitutional right to a fair trial and the due process of law guaranteed him

       [sic] by the 5th and 14th Amendments of the U.S. Constitution and Section 16,

       Article 1 of the Ohio Constitution.

       {¶ 6}    Pound, in his first and second assignments of error, argues the trial court erred

in denying his petitions and in not conducting any hearings on the petitions. Through the

years, Pound has amassed five affidavits from persons claiming that a witness at his trial,

Elvis Wooliver, committed perjury by lying on the witness stand during Pound’s jury trial. It

is clear that Pound believes he did not get a fair trial and was convicted upon false testimony.
                                                                                               4

         {¶ 7} Initially, it must be noted that a postconviction proceeding is a collateral civil

attack on a criminal judgment.         State v. Dudley, 2d Dist. Montgomery No. 23613,

2010-Ohio-4152, ¶ 30, citing State v. Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d 67. It is

therefore not an appeal of a criminal conviction. Id. Consequently, post-conviction relief is

not a constitutional right, but instead is afforded to a convicted defendant as a statutory

remedy. Id., citing State v. Moore, 99 Ohio App.3d 748, 751, 651 N.E.2d 1319 (1st Dist.

1994).

         {¶ 8} Moreover, postconviction relief is a particularly narrow remedy because the

doctrine of res judicata bars “any claim that was or could have been raised at trial or on direct

appeal.” Id.

                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 in 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.

         {¶ 9} Here, the trial court, in denying Pound’s petition, echoed its 1999 decision

denying his first petition. The trial court concluded that Pound’s claim regarding perjured

testimony was barred by res judicata. The trial court correctly explained that this was a

matter that could have and should have been raised in Pound’s direct appeal. Indeed, Pound

acknowledges in his merit brief that the issue of perjured testimony was raised during his trial
                                                                                            5

in chambers. A review of the record confirms that this issue was raised in chambers with

Pound’s counsel present. Thus, Pound could have raised this issue in his direct appeal. To a

certain extent, the perjured-testimony issue was raised on direct appeal by attacking the

credibility and reliability of Wooliver’s testimony under manifest weight and jury instruction

arguments.

       {¶ 10} Additionally, Pound could have appealed the trial court’s 1999 judgment,

which denied his first petition concerning Wooliver’s alleged perjured testimony. The record

indicates Pound failed to do so. Pound cannot now collaterally attack non-constitutional

evidentiary issues from his original trial through a postconviction petition. Further, Pound

cannot now attack the denial of a previous postconviction petition by filing additional

postconviction petitions which argue the same issue. Even if the same argument could be

considered, Pound’s second, third, and fourth petitions were each procedurally barred as

untimely under R.C. 2953.21(A)(2), as the trial court concluded in its March 3, 2010 entry.

The record indicates that Pound likewise failed to appeal this judgment.

       {¶ 11} Pound’s first and second assignments of error are without merit.

       {¶ 12} Pound’s third assignment of error states:

               This appellant’s sentence is void as a matter of law as it does not

       comport with all mandatory sentencing provisions. This appellant’s separate

       sentences are for offenses that arose from the same conduct and were

       committed with a single action and amicus [sic] and as such should have been

       merged for sentencing purposes under [R.C.] 2941.25. The failure to do so
                                                                                               6

       violates the appellant’s rights under the 5th and 14th Amendments of the U.S.

       Constitution and Sections 10 and 16, Article 1 of the Ohio Constitution.

       {¶ 13} In his third assignment of error, appellant argues that his sentence is void

because many of his offenses should have merged for the purposes of sentencing, pursuant to

State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061.

       {¶ 14} As explained above, any issues that could have been raised by a defendant on

direct appeal are barred by res judicata and not subject to appellate review. However, Pound

argues that his sentences are void and therefore not precluded from review by principles of res

judicata. While Pound correctly notes that the doctrine of res judicata does not preclude

review of a void sentence, this court has previously held the failure to merge sentences does

not render a judgment void, but voidable; therefore, such challenges, if not raised on direct

appeal, are barred by the doctrine of res judicata. State v. Parson, 2d Dist. Montgomery No.

24641, 2012-Ohio-730, ¶ 10. Thus, when an appellant does not raise the issue of merger in a

timely direct appeal, the challenge is barred by the doctrine of res judicata. State v. Martin,

Montgomery 2d Dist. No. 21697, 2007-Ohio-3585, ¶ 3. See also State v. Poole, 8th Dist.

Cuyahoga No. 94759, 2011-Ohio-716, ¶ 13 (“the time to challenge a conviction based on

allied offenses is through a direct appeal—not a resentencing hearing”); and State v.

Goldsmith, 8th Dist. Cuyahoga No. 95073, 2011-Ohio-840, ¶ 11 (“[b]ecause [appellant] failed

to raise on direct appeal from his conviction the issue concerning whether the offenses

challenged herein are allied offenses of similar import subject to merger, we find that the issue

is barred by the doctrine of res judicata”).
                                                                                              7

       {¶ 15} Pound is attempting to use the denials of his petitions to raise issues that could

and should have been raised on a direct appeal. Pound’s direct appeal was initiated in 1998.

At that point, Pound had the opportunity to timely raise any prospective errors in his

sentencing. He failed to do so.

       {¶ 16} Further, as this court explained in Parson, an appellant seeking to challenge his

pre-Johnson sentencing on the grounds of merger cannot rely on Johnson “because ‘[a] new

judicial ruling may be applied only to cases that are pending on the announcement date. * * *

 The new judicial ruling may not be applied retroactively to a conviction that has become

final, i.e. where the accused has exhausted all of his appellate remedies.’”           Parson,

2012-Ohio-730, ¶ 11, quoting Ali v. State, 104 Ohio St.3d 328, 2004-Ohio-6592, 819 N.E.2d

687, ¶ 6.

       {¶ 17} Pound’s third assignment of error is without merit.

       {¶ 18} The judgment of the Montgomery County Court of Common Pleas is hereby

affirmed.



FAIN, J., And FROELICH, J., concur.

(Hon. Timothy P. Cannon, Eleventh District Court of Appeals, sitting by assignment of the
Chief Justice of the Supreme Court of Ohio.)


Copies mailed to:

Michele D. Phipps, Esq.
Nickey L. Pound, Sr.
Hon. Timothy N. O’Connell
