[Cite as State v. Ulmer, 2016-Ohio-2873.]


                          IN THE COURT OF APPEALS OF OHIO
                             FOURTH APPELLATE DISTRICT
                                   SCIOTO COUNTY

STATE OF OHIO,                 :
                               :    Case No. 15CA3708
     Plaintiff-Appellee,       :
                               :
     vs.                       :    DECISION AND JUDGMENT
                               :    ENTRY
DONALD ULMER,                  :
                               :
     Defendant-Appellant.      :    Released: 05/05/16
_____________________________________________________________
                          APPEARANCES:

Donald Ulmer, Lima, Ohio, Pro Se Appellant.

Mark E. Kuhn, Scioto County Prosecuting Attorney, and Jay Willis,
Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appellee.
_____________________________________________________________

McFarland, J.

        {¶1} Donald Ulmer appeals the Scioto County Common Pleas Court's

denial of his motion for merger of his sentences. On appeal, Appellant

contends that 1) he was improperly sentenced on drug possession and

trafficking offenses, which he claims were allied offenses of similar import,

in violation of his constitutional rights to due process and equal protection;

2) the evidence was insufficient as a matter of law to convict him of

tampering with evidence, and also that his conviction for tampering with

evidence was against the manifest weight of the evidence; and 3) he was
Scioto App. No. 15CA3708                                                         2

provided with ineffective assistance of trial counsel where counsel failed to

preserve objection to his conviction on the tampering with evidence charge.

Upon review, we conclude that Appellant's motion, which we have

construed as a petition for postconviction relief, was untimely filed. The

trial court lacked jurisdiction to address the merits of the petition and should

have dismissed the matter based upon its lack of jurisdiction. For these

reasons, the judgment of the Scioto County Common Pleas Court is

reversed. The trial court's judgment entry overruling Appellant's motion for

merger is vacated, and the petition for postconviction relief is dismissed for

lack of jurisdiction.

                                    FACTS

      {¶2} We recount the facts as previously set forth in State v. Ulmer,

4th Dist. Scioto No. 09CA3283, 2010-Ohio-695. On November 4, 2008,

Investigators Timberlake and Bryant of the Portsmouth Police Department

received information from a confidential informant, who had pending

criminal charges against her, advising them that she had been receiving

oxycontin from a black male from the Detroit area known as “Lee” and that

she could arrange for him to make a delivery to her. The investigators had

not worked with this particular confidential informant in the past; however,

they arranged for the confidential informant to place a recorded phone call to
Scioto App. No. 15CA3708                                                      3

Lee, in their presence, in order to set up the delivery. The officers then took

the recording back to the police department where they downloaded and

listened to it.

       {¶3} The confidential informant further informed the officers that Lee

would be driving either a gray Dodge Magnum or a gray Dodge Charger and

would be arriving in Portsmouth via routes 32 and 23. Later in the day, after

having more contact with Lee, the confidential informant contacted the

officers and advised that Lee would be arriving in Portsmouth around 7:45

p.m. that evening. At that point, Investigator Bryant went to Lucasville,

Ohio, to conduct surveillance, where he eventually observed a vehicle

matching the description given heading south on route 23 towards

Portsmouth. The confidential informant contacted the officers again and

informed that she was to meet Lee at the Wurster's Pharmacy parking lot in

Portsmouth.

       {¶4} As Appellant was approaching the designated meeting spot, the

officers received another call from the confidential informant stating she was

following Appellant's vehicle. Investigator Timberlake then observed

Appellant park on a street just south of the designated meeting place,

followed by the confidential informant. When the confidential informant

exited her vehicle and entered Appellant's vehicle, which was unplanned,
Scioto App. No. 15CA3708                                                         4

Investigator Timberlake placed a call to Investigator Bryant, who turned his

lights on to bypass traffic and pulled in to block Appellant's parked vehicle.

Investigator Timberlake, meanwhile, was approaching on foot. As

Investigator Timberlake approached, through the open car window he

overheard Appellant threaten and curse the confidential informant, accusing

her of setting him up. At that point, Investigator Timberlake became

concerned for the safety of the informant and approached Appellant's side of

the vehicle with his weapon drawn and pointed towards Appellant. He then

opened the car door and removed Appellant from the vehicle.

      {¶5} After removing Appellant from the vehicle, the officers noted a

strong smell of marijuana. When Investigator Bryant removed the

confidential informant from the vehicle, he was able to view a “blunt,” or

marijuana cigarette, in the console ash tray. Officers were also able to view

a pair of scissors and baggie in the vehicle. Upon making these findings, the

officers conducted a further search of the vehicle, which resulted in the

recovery of over 1000 oxycontin tablets.

      {¶6} The Scioto County Grand Jury returned a ten count indictment

charging Appellant with 1) possession of drugs/major drug offender, a

felony of the first degree, in violation of R.C. 2925.11(A) & (C)(1)(e); 2)

trafficking in drugs/oxycodone/major drug offender, a felony of the first
Scioto App. No. 15CA3708                                                          5

degree, in violation of R.C. 2925.03(A)(2) & (C)(1)(f); 3) trafficking in

drugs/oxycodone/major drug offender, a felony of the first degree, in

violation of R.C. 2925.03(A)(1) & (C)(1)(f); 4) conspiracy to traffic

drugs/oxycodone/major drug offender, a felony of the first degree, in

violation of R.C. 2923.01(A)(1) and 2925.03(A)(2) & (C)(1)(f); 5)

possession of criminal tools, a felony of the fifth degree, in violation of R.C.

2923.23(A) and 2923.24(C); 6) possession of criminal tools, a felony of the

fifth degree, in violation of R.C. 2923.23(A) and 2923.24(C); 7) possession

of criminal tools, a felony of the fifth degree, in violation of 2923.23(A) and

2923.24(C); 8) possession of criminal tools, a felony of the fifth degree, in

violation of R.C. 2923.24(A) and 2923.24(C); 9) possession of marijuana, a

misdemeanor, in violation of R.C. 2925.11(A) & (C)(3)(a); and 10)

tampering with evidence, a felony of the third degree, in violation of R.C.

2921.12(A)(1).

      {¶7} Appellant entered pleas of not guilty to each charge and

subsequently filed a motion to suppress. In his motion to suppress, he

sought to suppress the physical evidence seized as a result of the warrantless

search. On January 23, 2009, the trial court held a suppression hearing. At

the hearing, Investigators Timberlake and Bryant testified to the previously

set forth series of events. The State argued that the officers' initial stop of
Scioto App. No. 15CA3708                                                         6

Appellant was based upon their reasonable articulable suspicion of criminal

activity, based upon the informant's tip. The State further argued that once

Appellant was removed from the vehicle and the officers were able to smell

marijuana and view a blunt in plain view, they possessed probable cause to

search the vehicle. The trial court agreed and overruled the motion to

suppress.

      {¶8} On January 26, 2009, Appellant changed his former pleas of not

guilty to each charge in the ten count indictment and instead entered pleas of

no contest to three of the counts, including possession of drugs, trafficking

in drugs and tampering with evidence. The trial court sentenced Appellant

to serve ten years for the possession of drugs conviction, five years on the

trafficking in drugs conviction, to be served consecutively to the ten-year

sentence, and five years on the tampering with evidence conviction, to be

served concurrently to the other sentences, for a total term of fifteen years.

      {¶9} Appellant filed a direct appeal; however, his convictions and

sentences were affirmed by this Court in State v. Ulmer, supra. Appellant

then filed an application for reopening pursuant to App.R. 26(B), which was

denied by this Court. Appellant further appealed our prior decision to the

Supreme Court of Ohio, which was denied in State v. Ulmer, 125 Ohio St.3d

1450, 2010-Ohio- 2510, 927 N.E.2d 1129. Appellant subsequently filed a
Scioto App. No. 15CA3708                                                      7

motion for merger of his sentences in the trial court on February 13, 2015,

which was also denied by the trial court. Appellant now appeals from the

trial court's denial of his motion for merger.

                        ASSIGNMENTS OF ERROR

“I.    APPELLANT WAS IMPROPERLY SENTENCED ON BOTH THE
       POSSESSION AND THE TRAFFICKING OFFENSES WHEN HE
       SHOULD HAVE ONLY BEEN SENTENCED ON THE STATE'S
       CHOICE OF ONE OF THE CHARGES IN VIOLATION OF
       APPELLANT'S DUE PROCESS RIGHT AND EQUAL
       PROTECTION OF THE LAW OF THE FIFTH, SIXTH AND
       FOURTEENTH AMENDMENTS TO THE UNITED STATES AND
       OHIO CONSTITUTIONS, AND ARTICLE I, SECTION 10, 16.

II.    THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW
       TO CONVICT APPELLANT OF TAMPERING WITH EVIDENCE,
       BECAUSE THERE WAS NO PROOF THAT APPELLANT
       INTENDED TO IMPAIR THE VALUE OR AVAILABILITY OF
       THE EVIDENCE RELATED TO AN EXISTING OR LIKELY
       OFFICIAL INVESTIGATION OR PROCEEDING AND IN THE
       ALTERNATIVE, THE CONVICTION IS AGAINST THE
       MANIFEST WEIGHT OF THE EVIDENCE.

III.   APPELLANT WAS PROVIDED WITH INEFFECTIVE
       ASSISTANCE OF TRIAL COUNSEL WHERE COUNSEL FAILED
       TO PRESERVE OBJECTION ON THE TAMPERING WITH
       EVIDENCE CHARGE OR THAT THE STATE FAILED TO
       SUSTAIN A CHARGE OF TAMPERING WITH EVIDENCE IN
       VIOLATION OF APPELLANT'S SIXTH AND FOURTEENTH
       RIGHT AMENDMENT RIGHT [SIC] TO THE UNITED STATES
       CONSTITUTION AND ARTICLE I, SECTION 10, 16, OF THE
       OHIO CONSTITUTION.”

                         STANDARD OF REVIEW
Scioto App. No. 15CA3708                                                           8

      {¶10} The postconviction relief process is a collateral civil attack on

a criminal judgment rather than an appeal of the judgment. State v. Calhoun,

86 Ohio St.3d 279, 281, 714 N.E.2d 905 (1999). Postconviction relief is not

a constitutional right; instead, it is a narrow remedy that gives the petitioner

no more rights than those granted by statute. Id. It is a means to resolve

constitutional claims that cannot be addressed on direct appeal because the

evidence supporting the claims is not contained in the record. State v.

Knauff, 4th Dist. Adams No. 13CA976, 2014-Ohio-308, ¶ 18.

      {¶11} A trial court's decision to grant or deny a R.C. 2953.21 petition

for postconviction relief should be upheld absent an abuse of discretion.

State v. Bennett, 4th Dist. Scioto No. 15CA3682, 2015-Ohio-3832, ¶ 9; State

v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58. An

“abuse of discretion” is more than an error of law or judgment; it implies

that the trial court's attitude was unreasonable, arbitrary or unconscionable.

State v. Herring, 94 Ohio St.3d 246, 255, 762 N.E.2d 940 (2002); State v.

Adams, 60 Ohio St.2d 151, 157, 404 N .E.2d 144 (1980). In reviewing for

an abuse of discretion, appellate courts must not substitute their judgment

for that of the trial court. Bennett, supra; citing, State ex rel. Duncan v.

Chippewa Twp. Trustees, 73 Ohio St.3d 728, 732, 654 N.E.2d 1254 (1995);

In re Jane Doe 1, 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181 (1991).
Scioto App. No. 15CA3708                                                         9

      {¶12} Here, Appellant filed a motion entitled "DEFENDANT

ULMER'S MOTION TO MERGE ALLIED OFFEN [SIC] SCIOTO

COUNTY, OHIOSES [SIC] OF SIMILAR IMPORT PURSUANT TO

OHIO REVISED CODE [SECTION] 2941.25." The motion claimed

violations of his rights under the Ohio and United States Constitutions, and

specifically alleged that he received ineffective assistance of both trial and

appellate counsel. Based on the analysis set forth in State v. Bennett, 4th

Dist. Scioto No. 15CA3682, 2015-Ohio-3832, we construe Appellant's

“Motion for Re–Sentencing Based on Void Judgment” as a petition for

postconviction relief.

                             LEGAL ANALYSIS

      {¶13} Here, Appellant contends the trial court erred by overruling his

motion to merge allied offenses of similar import. The State opposed

Appellant's motion for merger, arguing that Appellant's arguments were

barred by the doctrine of res judicata as he had taken a prior direct appeal of

his convictions, and that the arguments raised by Appellant could have been

raised as part of his direct appeal. The trial court denied Appellant's motion,

citing the fact that Appellant had previously appealed from his convictions

and that his convictions had been affirmed on appeal. At no point did either
Scioto App. No. 15CA3708                                                         10

the State or the trial court expressly refer to Appellant's motion as a petition

for postconviction relief.

      {¶14} We agree that “the doctrine of res judicata bars the relitigation

of issues that were raised on appeal or could have been raised on appeal.”

State v. Cruz, 8th Dist. Cuyahoga No. 101544, 2014-Ohio-5695, ¶ 14;

quoting, In re A.I., 8th Dist. Cuyahoga No. 99808, 2014-Ohio-2259, ¶ 34.

Further, we note that the doctrine of res judicata is generally applicable to

petitions for postconviction relief in that the doctrine "bars claims for post-

conviction relief based on allegations which the petitioner raised, or could

have raised, in the trial court or on direct appeal.” State v. Howard, 4th Dist.

Scioto No. 96CA2470, 1997 WL 460061, *2 (Aug. 11, 1997); citing State v.

Perry, 10 Ohio St.2d 175, 226 N.E.2d 104, at paragraph nine of the syllabus

(1967). However, we note that here, Appellant had the same counsel at trial

and on appeal.

      {¶15} In State v. Miller, 4th Dist. Ross No. 01CA2614, 2002 WL

149392, *2, this Court noted that "an exception to the general rule can be

asserted in cases where the petitioner is claiming ineffective assistance of

counsel in a post-conviction relief proceeding." We explained that "[u]nder

the exception, res judicata is not a bar to a defendant's claim of ineffective

assistance of counsel in a post-conviction relief proceeding if he was
Scioto App. No. 15CA3708                                                       11

represented by the same counsel at both the trial and on direct appeal." Id.;

citing State v. Lentz, 70 Ohio St.3d 527, 529-530, 639 N.E.2d 784 (1994);

State v. Cole, 2 Ohio St.3d 112, 114, 443 N.E.2d 169 (1992). Thus, to the

extent Appellant's motion alleged ineffective assistance of trial counsel, the

doctrine of res judicata as a basis to deny his motion was improper.

      {¶16} We further note that some of the arguments contained in

Appellant's brief now on appeal also seem to claim ineffective assistance of

appellate counsel. However, “[c]laims of ineffective assistance of appellate

counsel are not cognizable in post-conviction proceedings pursuant to R.C.

2953.21.” State v. Miller, supra, at *3; quoting State v. Murnahan, 63 Ohio

St.3d 60, 584 N.E.2d 1204, syllabus (1992). Rather, “[t]he proper procedure

is to file an application for reopening under App.R. 26(B).” Id.

      {¶17} Instead of denying Appellant's petition for postconviction relief

based upon res judicata principles, we conclude that the trial court should

have dismissed Appellant's petition for lack of jurisdiction based upon the

fact that it was untimely filed. R.C. 2953(A)(2) provides that a petition for

postconviction relief must be filed no later than 180 days after the date on

which the trial transcript is filed with the court of appeals in the direct

appeal. State v. Burkes, 4th Dist. Scioto No. 13CA3582, 2014-Ohio-3311,
Scioto App. No. 15CA3708                                                     12

¶ 16. R.C. 2953.23(A) authorizes a trial court to address the merits of an

untimely filed petition for postconviction relief if:

      "(1) Both of the following apply:

      (a) Either the petitioner shows that the petitioner was

      unavoidably prevented from discovery of the facts upon which

      the petitioner must rely to present the claim for relief, or,

      subsequent to the period prescribed in division (A)(2) of section

      2953.21 of the Revised Code or to the filing of an earlier

      petition, the United States Supreme Court recognized a new

      federal or state right that applies retroactively to persons in the

      petitioner's situation, and the petition asserts a claim based on

      that right.

      (b) The petitioner shows by clear and convincing evidence that,

      but for constitutional error at trial, no reasonable factfinder

      would have found the petitioner guilty of the offense of which

      the petitioner was convicted or, if the claim challenges a

      sentence of death that, but for constitutional error at the

      sentencing hearing, no reasonable factfinder would have found

      the petitioner eligible for the death sentence."
Scioto App. No. 15CA3708                                                         13

      {¶18} As set forth above, Appellant's petition was filed nearly six

years after his convictions. Thus, it was clearly outside the time limits.

Further, Appellant does not argue and has not demonstrated he met any of

the exceptions for filing beyond the 180-day time limit. Because Appellant's

petition for postconviction relief was untimely filed, the trial court did not

have jurisdiction to consider it and should have dismissed it based upon lack

of jurisdiction. State v. Eldridge, 4th District Scioto No. 13CA3584, 2014-

Ohio-2250, ¶ 1. For these reasons, the judgment of the Scioto County

Common Pleas Court is reversed and the trial court's judgment entry

overruling Appellant's motion for merger is vacated. Further, the petition

for postconviction relief is dismissed for lack of jurisdiction.

                              JUDGMENT REVERSED AND VACATED.
Scioto App. No. 15CA3708                                                       14

                           JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE REVERSED AND VACATED
and that Appellant recover costs from Appellee.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Scioto County Common Pleas Court to carry this judgment into
execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Abele, J.: Concurs in Judgment and Opinion.
Hoover, J.: Concurs in Judgment Only.

                                        For the Court,

                                 BY: ____________________________
                                     Matthew W. McFarland, Judge

                          NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
