[Cite as State v. Andrews, 2011-Ohio-6106.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 1-11-42

        v.

SHAITON L. ANDREWS,                                      OPINION

        DEFENDANT-APPELLANT.




                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR 2004 0537

                                     Judgment Affirmed

                          Date of Decision: November 28, 2011




APPEARANCES:

        Shaiton L. Andrews, Appellant

        Jana E. Emerick for Appellee
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WILLAMOWSKI, J.

       {¶1} Defendant-Appellant, Shaiton L. Andrews (“Andrews”), pro-se,

appeals the judgment of the Allen County Court of Common Pleas denying

Andrews’ petition for postconviction relief (or, “petition”). On appeal, Andrews

contends that the trial court erred when it found that his petition for postconviction

relief was untimely; when it dismissed the petition without an evidentiary hearing;

when it found that his evidence did not meet the requirements for the review of an

untimely petition; and when it failed to consider that his sentence was excessive.

For the reasons set forth below, the judgment is affirmed.

       {¶2} On January 13, 2005, Andrews was indicted on two separate counts of

aggravated robbery pursuant to R.C. 2911.01(A)(1), both felonies of the first

degree.   Each count also carried a firearm specification pursuant to R.C.

2945.145(A).    The indictment charged that Andrews and Ontrayis L. Keith

(“Keith” or “co-defendant”) robbed two Allen County businesses, Crazy Wings &

Things and Lynn’s Pawn Shop, at gun point on December 1, 2004.

       {¶3} On August 29, 2005, a jury found Andrews guilty of all of the counts.

He was sentenced to ten years in prison on each of the aggravated robbery counts

and three years on each of the firearm specifications. The sentences were to run

consecutively for a total of twenty-six years in prison. This Court affirmed the



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convictions on July 26, 2005. See State v. Andrews, 3d Dist. No. 1-05-70, 2006-

Ohio-3764 (or, “Andrews I”).

        {¶4} In October of 2010, Andrews filed a motion for resentencing to

correct issues relating to postrelease control in his original sentence.                             On

November 17, 2010, the trial court “resentenced” Andrews to the same sentence as

before, but included the correct postrelease control information. Andrews filed an

appeal from this resentencing, claiming that his sentence was contrary to law.

This Court overruled Andrews’ assignment of error on the basis of res judicata and

affirmed the judgment of the trial court. See State v. Andrews, 3d Dist. No. 1-10-

78, 2011-Ohio-2462 (or, “Andrews II”).

        {¶5} On May 13, 2011, Andrews filed a petition for postconviction relief.

He claimed that he was denied a fair trial and his conviction was not supported by

sufficient evidence. He based this claim on the fact that the jury in his co-

defendant’s separate trial1 found Keith guilty of the robbery of Crazy Wings &

Things, but did not convict Keith for the robbery of the pawn shop. See State v.

Keith, 3d Dist. Nos. 1-06-46 and 1-06-53, 2007-Ohio-4632.                             Andrews also

claimed that he was denied equal protection of the law because he believed his

sentence was much longer than sentences imposed for similar crimes committed


1
  Keith was not apprehended until January 2006, after the police received information from Crime Stoppers
that he was in Indiana. Therefore, Keith’s trial was not held until June 2006, approximately ten months
after Andrew’s trial.

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by similar offenders. Andrews requested an evidentiary hearing. The State filed a

motion in opposition and a motion to dismiss the petition.

      {¶6} On July 6, 2011, the trial court denied Andrews’ petition without a

hearing, providing detailed findings of fact and conclusions of law.      The trial

court found that Andrews’ petition was not timely and, therefore, the court was

without jurisdiction in the matter. It also found that the evidence in the case did

not meet the requirements for the court to consider an untimely petition for

postconviction relief pursuant to R.C. 2953.21(A)(1).

      {¶7} It is from this judgment that Andrews now appeals, raising the

following four assignments of error for our review.

                           First Assignment of Error

      The trial [court] erred in not granting an evidentiary hearing.

                          Second Assignment of Error

      The trial [court] erred in finding the petition to be untimely.

                           Third Assignment of Error

      The trial [court] erred in finding that the requirements to
      consider an untimely petition were not met.

                          Fourth Assignment of Error

      The trial [court] erred in failing to consider the evidence
      [Andrews’] sentence was inconsistent with mainstream
      sentencing for aggravated robberies where no one was physically
      harmed, contrary to O.R.C. 2929.11(B).

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       {¶8} The first three assignments of error are all closely related, so we shall

address them together. Andrews argues that his petition should be considered

timely because he believes that the time for filing a petition for postconviction

relief should be computed from the date of his new sentencing entry, not the date

of the original judgment. Furthermore, he claims that the trial court should have

held an evidentiary hearing to look into his “actual innocence” claim, given the

fact that his codefendant was acquitted of the pawn shop robbery. Andrews claims

he met the innocence and new evidence prongs of R.C. 2953.21(A)(1) by

presenting evidence of the acquittal of his codefendant which was discovered after

Andrews was convicted and could not be presented on direct appeal. He claims

that “any issues of res judicata could be overcome by his presentation of some

evidence that could show he was innocent.” (Appellant’s Brief, p. 7.)

       {¶9} Postconviction review is not a constitutional right, but is a collateral

civil attack on a judgment that is governed solely by statute. State v. Keith, 176

Ohio App.3d 260, 2008-Ohio-741, 891 N.E.2d 1191, ¶26. The postconviction

relief statute states in pertinent part:

       [a]ny person who has been convicted of a criminal offense * * *
       and who claims that there was such a denial or infringement of
       the person's rights as to render the judgment void or voidable
       under the Ohio Constitution or the Constitution of the United
       States, * * * may file a petition in the court that imposed
       sentence, stating the grounds for relief relied upon, and asking
       the court to vacate or set aside the judgment or sentence or to

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        grant other appropriate relief. The petitioner may file a
        supporting affidavit and other documentary evidence in support
        of the claim for relief.

R.C. 2953.21(A)(1)(a); State v. Yarbrough, 3d Dist. No. 17-2000-10, 2001-Ohio-

2351.

        {¶10} The time frame for filing a petition is set forth in R.C.

2953.21(A)(2), and states that in most cases, a petition must be filed no later than

180 days after the date on which the trial transcript is filed in the direct appeal of

the judgment of conviction, or, if no appeal is taken, within 180 after the

expiration of the time for filing the appeal. State v. Everette, 129 Ohio St.3d 317,

2011-Ohio-2856, 951 N.E.2d 1018, ¶11.

        {¶11} The filing of a petition for postconviction relief does not

automatically entitle the petitioner to an evidentiary hearing. See, e.g., State v.

Calhoun, 86 Ohio St.3d 279, 282, 1999-Ohio-102, 714 N.E.2d 905. The decision

to grant the petitioner an evidentiary hearing is left to the sound discretion of the

trial court.    Id. at 284.   Furthermore, a postconviction relief hearing is not

warranted for claims that were raised or could have been raised on direct appeal.

State v. Reynolds, 79 Ohio St.3d 158, 161, 1997-Ohio-304, 679 N.E.2d 1131. The

postconviction statute is not intended to be “a full-blown retrial” of the petitioner's

case; the adjudication is confined solely to the claimed constitutional violations.

Keith at ¶24.

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       {¶12} First, we affirm the trial court’s finding that Andrews’ petition was

untimely.   Andrews appealed his 2005 conviction. See Andrews I, supra. The

record reflects that the trial transcript was filed in the direct appeal of the judgment

of conviction on January 24, 2006, meaning that Andrews’ postconviction petition

was due on July 25, 2006. See R.C. 2953.21(A)(2). His May 13, 2011 filing was

more than five years beyond the statutory time limitations.

       {¶13} Although Andrews was subsequently “re-sentenced” on November

19, 2010, he is incorrect in his assertion that that his original conviction was

“vacated” and that the time for filing his postconviction petition starts anew. A

recent decision by the Supreme Court of Ohio clarified the extent of review that is

applicable after a new sentencing hearing is held due to a trial court's failure to

properly impose postrelease control. See State v. Fischer, 128 Ohio St.3d 92,

2010–Ohio–6238, 942 N.E.2d 332. When postrelease control is not properly

included in a sentence for a particular offense, “only the offending portion of the

sentence is subject to review and correction.” Id. at ¶27, 942 N.E.2d 332. The

scope of relief is limited and does not permit a reexamination of all the perceived

errors at trial or in other proceedings. Id. at ¶25, citing Hill v. United States

(1962), 368 U.S. 424, 430, 82 S.Ct. 468, 7 L.Ed.2d 417. The doctrine of “res

judicata still applies to other aspects of the merits of a conviction, including the

determination of guilt and the lawful elements of the ensuing sentence.” Id. at

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paragraph three of the syllabus, State v. Hall, 3d Dist. No. 12–10–11, 2011–Ohio–

659, ¶12.

       {¶14} In Fischer, the Ohio Supreme Court specifically addressed the issue

of whether the original appeal should be considered a nullity and whether a direct

appeal from a postrelease control sentencing should be considered the “first”

direct appeal as of right. It definitively answered this question in the negative.

Fischer, supra, ¶¶32-39. Accordingly, Andrew’s petition was untimely because

the time for a petition for postconviction relief must be computed from the time

the transcript in his direct appeal was filed on January 24, 2006.        See R.C.

2953.21(A)(2). Also, “[b]ecause the trial court lacked jurisdiction to consider the

petition, it was not required to hold an evidentiary hearing.” State v. Foster, 10th

Dist. No. 09AP–227, 2009–Ohio–5202, ¶8.          Accordingly, Andrews’ first and

second assignments of error are overruled.

       {¶15} However, the statutes governing postconviction petitions do contain

an exception to the time limitations. In his third assignment of error, Andrews

claims that the trial court erred when it found that the requirements for

consideration of an untimely petition were not met.

       {¶16} Pursuant to R.C. 2953.23(A)(1)(a), a court may consider an untimely

filed petition for postconviction relief if the petitioner shows that he was

unavoidably prevented from discovering the facts upon which his petition is based

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or the United States Supreme Court has recognized a new federal or state right that

would apply retroactively. R.C. 2953.23(A)(1)(a); State v. Fulk, 172 Ohio App.3d

635, 2007-Ohio-3141, 876 N.E.2d 983, ¶13. If the petitioner can show one of

these two threshold requirements, then the petitioner must also show “by clear and

convincing evidence that, but for constitutional error at trial, no reasonable fact

finder would have found the petitioner guilty of the offense of which the petitioner

was convicted.” R.C. 2953.23(A)(1)(b).2

        {¶17} Andrews’ filing does not contain any information or supporting

documents from which the requisite showings required by R.C. 2953.23(A)(1)

could be found. Although the outcome of Keith’s trial was not determined until

after Andrews’ appeal and the time for a petition for postconviction relief had

passed, Andrews has not specified any facts or evidence that would be pertinent to

his case that were not available to him at an earlier time and that he was

unavoidably prevented from discovering. See R.C. 2953.23(A)(1)(a). Neither is

Andrews asserting any new federal or state right that would be applicable to him,

so his petition fails the first required threshold for delayed consideration. See Id.

Because Andrews failed to meet either of the alternate threshold requirements, the

trial court was without jurisdiction to consider his untimely petition.



2
 R.C. 2953.23(A)(2) sets forth another exception to the 180-day time limit, involving DNA testing, that is
not applicable in this case.

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       {¶18} Furthermore, Andrews has not asserted any evidence of a

constitutional error at his trial that would have affected the outcome. This Court

reviewed all of the evidence in his first appeal and did not find any merit on the

issues that Andrews raised nor did we find that Andrews’ conviction was against

the manifest weight of the evidence. See Andrews I, 2006-Ohio-3764, at ¶¶30-36.

       The evidence presented was uncontradicted and unconflicting.
       There is also no reason to question the reliability of the
       testimony. Three separate people identified Andrews from the
       videotape as having been one of the two men who committed the
       pawn shop robbery, and the restaurant owner also identified
       him as one of the men who committed the second robbery.
       Thus, the weight of the evidence falls in favor of conviction.

Id. at ¶35.

       {¶19} Some of the testimony, witnesses, and evidence identifying the

second perpetrator at Keith’s trial was necessarily different in certain respects, i.e.,

prints found, the perpetrators wore different clothing, they each did different

things during and after the robberies, etc. Merely because a jury happened to find

that there was not sufficient evidence to prove beyond a reasonable doubt that

Keith had committed one of the robberies does not in any way indicate that there

was not sufficient evidence to support Andrews’ convictions.

       {¶20} Additionally, since the claims raised by Andrews were such that he

could have raised them on direct appeal (or he did raise them on previous appeals),

his postconviction petition is also barred by res judicata. Andrew’s postconviction

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claim concerning the alleged acquittal of his codefendant is not a claim that is

based on newly discovered evidence or on any constitutional errors in his trial.

Rather, it is a claim of innocence based on the same evidence that was available to

Andrews at the time of his trial. Accordingly, the trial court did not err in finding

that Andrews failed to meet the requirements for consideration of an untimely

petition for postconviction relief. Andrew’s third assignment of error is overruled.

         {¶21} In his fourth assignment of error, Andrews complains that his

sentence was excessive when compared to the sentences others have received for

similar crimes. In support, Andrews attached statistical documents that he had

requested from the Ohio Department of Rehabilitation and Correction.3

         {¶22} However, as stated above, the trial court did not have jurisdiction to

review Andrew’s untimely petition. And, as this Court stated when Andrews

raised this same issue after his sentencing to correct the postrelease control issue,

this matter is barred by res judicata “since [it] could have been raised in the trial

court at his original sentencing or in this Court in his direct appeal of his




3
  Although Andrews claims that these statistics support his argument, we note that the documents came
with the disclaimer stating that the DRC did not have any publications or information concerning the
particular data he was requesting. We note that the data provided in these reports is distinguishable in that
it only involves the sentences of those who were released; most of those who have been released were
sentenced under the old code; and “only the shortest sentenced Aggravated Robbers from SB 2 have begun
to be released” and that “the average should begin to rise again soon.” (DRC Mar. 29, 2011 letter to
Shaiton Andrews.) The statistics do not contain any information concerning how many counts were
involved in an inmate’s sentence nor how many previous offenses the inmates may have committed. Even
if the trial court had jurisdiction to review this matter, Andrews’ documents are not statistically relevant.

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conviction and sentence.” Andrews II, 2011-Ohio-2462, at ¶14. Andrews’ fourth

assignment of error is overruled.

       {¶23} Having found no error prejudicial to the Appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

ROGERS, P.J. and PRESTON, J., concur.

/jlr




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