[Cite as State v. Grant, 2012-Ohio-4474.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :      JUDGES:
                                               :
                                               :      Hon. Patricia A. Delaney, P.J.
                       Plaintiff-Appellee      :      Hon. John W. Wise, J.
                                               :      Hon. Julie A. Edwards, J.
-vs-                                           :
                                               :      Case No. 11CA84
TIMOTHY GRANT                                  :
                                               :
                                               :
                       Defendant-Appellant     :      OPINION



CHARACTER OF PROCEEDING:                           Appeal from the Richland County Court of
                                                   Common Pleas, Case No. 2006-CR-834-D


JUDGMENT:                                          AFFIRMED



DATE OF JUDGMENT ENTRY:                            September 20, 2012



APPEARANCES:

For Appellant:                                        For Appellee:

TIMOTHY GRANT, pro se                                 JAMES J. MYER, JR.
No. 510-685                                           RICHLAND COUNTY PROSECUTOR
Noble Correctional Institution                        DANIEL J. BENOIT
15708 McConnelsville Rd.                              38 South Park Street
Caldwell, OH 43724                                    Mansfield, OH 44902
[Cite as State v. Grant, 2012-Ohio-4474.]


Delaney, J.

        {¶1} Appellant Timothy Grant appeals from the August 25, 2011 judgment

entry of the Richland County Court of Common Pleas overruling his motion for relief

from judgment and to correct illegal sentence. Appellee is the state of Ohio.

                              FACTS AND PROCEDURAL HISTORY

        {¶2} Appellant was convicted upon trial by jury of rape, unlawful sexual

conduct with a minor, kidnapping, sexual battery, and abduction on March 23, 2007,

and was sentenced to an aggregate prison term of 17 years on March 26, 2007. The

prison term was imposed consecutive to a term appellant was already serving.

        {¶3} We affirmed the judgment of conviction and sentence on July 7, 2008 in

State v. Grant, 5th Dist. No. 07 CA 32, 2008-Ohio-3429. The Ohio Supreme Court

denied appellant’s motion for delayed appeal on March 3, 2010 in State v. Grant, 124

Ohio St.3d 1491, 2010-Ohio-670, 922 N.E.2d 227.

        {¶4} Appellant filed a “Motion to Correct Illegal Sentence” on June 22, 2011,

and a “Motion for Relief from Judgment Pursuant to Civil Rule 60(B)(5) and Criminal

Rule 52” on July 8, 2011. The trial court denied both motions in a single entry dated

August 25, 2011, from which appellant now appeals.

        {¶5} Pursuant to App.R. 21(A), we ordered this case submitted without oral

argument because appellant is presently incarcerated.

        {¶6} Appellant raises seven Assignments of Error:

        {¶7}      “I. TRIAL COURTS ABUSE OF DISCRETION IN FAILING TO GRANT

DEFENSES           REQUEST          FOR     ACQUITTAL   UNDER   CRIMINAL   RULE   29,

ACCORDING TO THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE
Richland County, Case No. 11CA84                                  3


VIOLATING APPELLANTS 14TH AMENDMENT RIGHTS AND O CONST SEC.1

INALIENABLE RIGHTS.” (sic)

      {¶8} “II.   TRIAL COURT ABUSED IT’S DISCRETION AND COMMITTED

STRUCTURAL AND PLAIN ERROR WHEN IT DENIED DEFENSE PERMISSION TO

SUBMIT TESTIMONY OF OFFICER DUNCAN WHO RESPONDED TO ALLEGED

ASSAULT AN TOOK THE REPORT OF THE ALLEGED VICTIM AND REPORTED IN

HIS REPORT THAT VICTIM WASN’T TELLING THE TRUTH ABOUT INCIDENT.

WHICH WAS RELEVANT EVIDENCE ON BEHALF OF THE DEFENSE WHICH

CAUSED THE JURY TO ERR AND UNREASONABLY AND INCOMPETENTLY

WEIGH EVIDENCE PROPERLY, VIOLATING APPELLANT’S 14TH AMENDMENT

RIGHTS, O CONST. ART 1 SEC 1 AND O CONST ART 1 SEC 2 GUARANTEEING

EQUAL PROTECTION AN DUE PROCESS.” (sic)

      {¶9} “III. TRIAL COURT COMMITTED PLAIN ERROR IN ALLOWING JURY

INSTRUCTIONS THAT DIDN’T ADVISED JURY THAT DEFENDANT COULD ONLY

BE FOUND GUILTY OF ONE CHARGE EVEN THOUGH THE INDICTMENT MAY

HAVE CONTAINED MORE THAN ONE CHARGE FOR THE SAME CHARGE.

VIOLATING APPELLANTS 14TH AMENDMENT RIGHTS AND O CONST I SEC 1

INALIENABLE RIGHTS.” (sic)

      {¶10} “IV. TRIAL COURT COMMITTED PLAIN ERROR IN SENTENCING OF

DEFENDANT ON TWO SEPARATE CHARGES OF SIMILAR IMPORT THAT HE

COULD ONLY BE FOUND GUILTY OF ONLY ONE AND SENTENCED FOR ONLY

ONE IN VIOLATION OF APPELLANT’S 5TH AND 14TH AMENDMENT RIGHTS, O
Richland County, Case No. 11CA84                                              4


CONST. ART I SEC 1 AND O CONST ART 1 SEC 2 BOTH GUARANTEEING EQUAL

PROTECTION AND DUE PROCESS.” (sic)

      {¶11} “V.   TRIAL   COURT      COMMITTED     PLAIN    ERROR      WHEN   IT

SENTENCED DEFENDANT ON FELONY ONE RAPE AND KIDNAPPING EVEN

THOUGH JURY VERDICT ONLY FOUND DEFENDANT GUILTY OF THE TWO

CHARGES WITHOUT STATING DEGREE, WHICH WOULD ONLY BE THE LEAST

DEGREE OF THE OFFENSE WITHOUT SPECIAL FINDINGS CITED UNDER R.C.

2945.75. IN VIOLATION OF APPELLANT’S 14TH AMENDMENT RIGHTS, O CONST.

ART 1 SEC 1 AND O CONST. ART 1 SEC 2 BOTH GUARANTEEING EQUAL

PROTECTION AND DUE PROCESS.” (sic)

      {¶12} “VI. JURY VERDICT DIDN’T RENDER NECESSARY AND REQUIRED

VERDICT    FINDINGS   NAMELY       VENUE,   TIME   AND     DATE   TO   CONVICT

DEFENDANT OF CHARGES REQUIRED BY JURY INSTRUCTIONS WHICH ARE

GROUNDS FOR RELIEF BY ACQUITTAL IN VIOLATION OF APPELLANT’S 14TH

AMENDMENT RIGHTS, O CONST. ART 1 SEC 1 AND O CONST. ART 1 SEC 2

GUARANTEEING EQUAL PROTECTION AND DUE PROCESS..” (sic)

      {¶13} “VII. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND ABUSE

OF DISCRETION BY TRIAL COURT IN SAME MATTER THAT FOLLOWS WHICH

WAS A VIOLATION OF APPELLANT’S 14TH AMENDMENT RIGHTS, O CONST.

ART 1 SEC 1 AND O CONST. ART 1 SEC 2 BOTH GUARANTEEING EQUAL

PROTECTION AND DUE PROCESS.” (sic)
Richland County, Case No. 11CA84                                                        5


                                I., II., III., IV., V., VI., VII.

       {¶14} Appellant appeals from a judgment entry denying two motions: a “Motion

to Correct Illegal Sentence” and a “Motion for Relief from Judgment Pursuant to Civil

Rule 60(B)(5) and Criminal Rule 52.” We note an inconsistency between appellant’s

assignments of error and the trial court’s judgment entry from which he purports to

appeal. Appellant’s assignments of error raise substantive issues not addressed by

the trial court, and appellant has failed to assign as error the trial court’s conclusions

that his motions are untimely and barred by res judicata. In the interest of justice, we

will determine if the trial court erred in overruling appellant’s motions on those

grounds.

       {¶15} The trial court treated the motion for relief from judgment as a petition for

postconviction relief pursuant to R.C. 2953.71 and noted the motion was filed outside

the 180-day time limit for postconviction relief petitions. Appellant made no attempt to

justify his untimely postconviction relief petition pursuant to R.C. 2953.23(A).

       {¶16} R.C. 2953.21(A)(2) states:

       Except as otherwise provided in section 2953.23 of the Revised Code, a

       petition under division (A)(1) of this section shall be filed no later than one

       hundred eighty days after the date on which the trial transcript is filed in the

       court of appeals in the direct appeal of the judgment of conviction or

       adjudication or, if the direct appeal involves a sentence of death, the date on

       which the trial transcript is filed in the supreme court. If no appeal is taken,

       except as otherwise provided in section 2953.23 of the Revised Code, the
Richland County, Case No. 11CA84                                                          6


      petition shall be filed no later than one hundred eighty days after the expiration

      of the time for filing the appeal.

      {¶17} R.C. 2953.23(A)(1) provides a limited exception to the rule:

      Whether a hearing is or is not held on a petition filed pursuant to section

      2953.21 of the Revised Code, a court may not entertain a petition filed after the

      expiration of the period prescribed in division (A) of that section or a second

      petition or successive petitions for similar relief on behalf of a petitioner unless *

      * * [b]oth 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 * * *.

      {¶18} The record in appellant’s direct appeal was filed on June 6, 2007,

supplemented by the filing of the transcript on August 9, 2007. Appellant filed his

“Motion for Relief from Judgment Pursuant to Civil Rule 60(B)(5) and Criminal Rule

52” on July 8, 2011, considerably beyond the 180-day time limit. Therefore, the trial

court had no jurisdiction to consider appellant’s motion unless R.C. 2953.23 applied,
Richland County, Case No. 11CA84                                                      7


but appellant’s petition does not show he was unavoidably prevented from discovering

facts upon which it was based, nor was his petition based upon a new right recognized

by the United States Supreme Court. We therefore conclude the trial court properly

found appellant’s motion for relief from judgment to be untimely.

      {¶19} The trial court overruled appellant’s Motion to Correct Illegal Sentence

on the basis his argument that rape and kidnapping are allied offenses of similar

import was barred by res judicata. Appellant raised this issue in his third assignment

of error in his 2008 appeal and we found the argument to be without merit.

      {¶20} The trial court did not err in overruling appellant’s motion on the basis of

res judicata. The substantive assignments of error appellant improperly attempts to

raise here are similarly barred by res judicata. Not only are these arguments not

addressed by the trial court in the entry appealed from, but as the State points out,

appellant has already fully litigated his direct appeal. Res judicata will be applied to

bar the further litigation of issues that were either raised or could have been raised

upon direct appeal.
Richland County, Case No. 11CA84                                               8


      {¶21} Appellant’s seven assignments of error are overruled and the judgment

of the Richland County Court of Common Pleas is affirmed.

By: Delaney, P.J.

Wise, J. and

Edwards, J. concur.



                                     HON. PATRICIA A. DELANEY



                                     HON. JOHN W. WISE



                                     HON. JULIE A. EDWARDS




PAD:kgb
[Cite as State v. Grant, 2012-Ohio-4474.]


             IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                  :
                                               :
                                               :
                       Plaintiff-Appellee      :
                                               :
-vs-                                           :   JUDGMENT ENTRY
                                               :
TIMOTHY GRANT                                  :
                                               :
                                               :   Case No. 11CA84
                       Defendant-Appellant     :




       For the reasons stated in our accompanying Opinion on file, the judgment of the

Richland County Court of Common Pleas is affirmed. Costs assessed to Appellant.




                                             HON. PATRICIA A. DELANEY



                                             HON. JOHN W. WISE



                                             HON. JULIE A. EDWARDS
