[Cite as State v. Macklin, 2019-Ohio-4008.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


State of Ohio                                     Court of Appeals No. L-18-1139

        Appellee                                  Trial Court No. CR0201602333

v.

Ocolar Macklin, IV                                DECISION AND JUDGMENT

        Appellant                                 Decided: September 30, 2019

                                              *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.

        John Thebes, for appellant.

                                              *****

        PIETRYKOWSKI, J.

        {¶ 1} Appellant, Ocolar Macklin, IV, appeals from the May 31, 2018 judgment of

the Lucas County Court of Common Pleas denying appellant’s petition for postconviction

relief on res judicata grounds. For the reasons which follow, we affirm.
       {¶ 2} On appeal, appellant asserts a single assignment of error:

              THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING

       APPELLANT’S PETITION FOR RELIEF

       {¶ 3} In 2017, the trial court accepted appellant’s plea to reduced charges of

murder, with a firearm specification. Appellant was convicted and sentencing following

acceptance of his guilty plea on March 15, 2017, to serve 15 years to life in prison plus an

additional three-year mandatory prison term for the specification. The two sentences

were ordered to run consecutively. Appellant did not file a direct appeal.

       {¶ 4} Appellant did file a timely postconviction relief petition on April 5, 2018,

asserting his constitutional right to a jury trial under the U.S. and Ohio Constitutions had

been infringed because at the time of his plea, he had not understood he had a right to

have his guilt proven at a trial.

       {¶ 5} A trial court may summarily dismiss a petition for postconviction relief if

the petition “does not allege facts which, if proved, would entitle the prisoner to relief * *

*.” State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph two of the

syllabus. Therefore, the trial court may deny the petition if constitutional issues are

alleged that “* * * have already been or could have been fully litigated by the prisoner

while represented by counsel, either before his judgment of conviction or on direct appeal

from that judgment, and thus have been adjudicated against him.” Id. at paragraph seven

of the syllabus; see also R.C. 2953.21(D). An appellate court reviews the trial court’s




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decision to summarily dismiss the petition under an abuse of discretion standard. State v.

Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 51-52.

       {¶ 6} In this case, the trial court found that at the plea hearing, the court had

conducted a lengthy and thorough colloquy with appellant concerning the rights he was

waiving by entering a guilty plea. Furthermore, the court found appellant could have but

did not file a direct appeal where he could have raised a claim of entering an unknowing

or unintelligent plea. Therefore, the trial court denied the petition for postconviction

relief on res judicata grounds.

       {¶ 7} Upon a review of the record, we find the trial court did not abuse its

discretion when it dismissed the petition on the grounds the claim was barred by the

doctrine of res judicata. The infringement of a constitutional right was a claim that could

have been raised on direct appeal. Therefore, we find appellant’s sole assignment of

error not well-taken.

       {¶ 8} Having found that the trial court did not commit error prejudicial to

appellant and that substantial justice has been done, the judgment of the Lucas County

Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal

pursuant to App.R. 24.



                                                                         Judgment affirmed.




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                                                                      State v. Macklin, IV
                                                                      C.A. No. L-18-1139




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Christine E. Mayle, P.J.
                                               _______________________________
Gene A. Zmuda, J.                                          JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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