[Cite as State v. Vandergriff, 2015-Ohio-3177.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                          CLERMONT COUNTY




STATE OF OHIO,                                    :
                                                        CASE NOS. CA2015-01-008
        Plaintiff-Appellee,                       :               CA2015-01-009

                                                  :            OPINION
    - vs -                                                      8/10/2015
                                                  :

TIMOTHY ALLEN VANDERGRIFF,                        :

        Defendant-Appellant.                      :



    CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                         Case No. 2013 CR 00083



D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee

Timothy Allen Vandergriff, #A679452, Chillicothe Correctional Institution, P.O. Box 5500,
Chillicothe, Ohio 45601, defendant-appellant, pro se



        S. POWELL, J.

        {¶ 1} Defendant-appellant, Timothy Allen Vandergriff, appeals from a decision of the

Clermont County Court of Common Pleas denying his petition for postconviction relief. For

the reasons stated below, we affirm the decision of the trial court.

        {¶ 2} Vandergriff was indicted by a Clermont County Grand Jury charging him with

four counts of gross sexual imposition in violation of R.C. 2907.05(A)(4) and one count of

domestic violence in violation of R.C. 2919.25(A) in Case No. 2013 CR 00083. Vandergriff
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was also indicted on one count of sexual battery in violation of R.C. 2907.03(A)(5) in Case

No. 2013 CR 00173. The charges arose out of allegations that Vandergriff inappropriately

touched and molested two children and caused physical harm to another child by punching

him.

       {¶ 3} On March 26, 2013, Vandergriff pled guilty to two counts of gross sexual

imposition, one count of domestic violence, and one count of sexual battery.              After

Vandergriff's guilty plea, the trial court sentenced him to a five-year mandatory prison term on

each of the gross sexual imposition convictions, 180 days on the domestic violence

conviction, and an eight-year mandatory prison term on the sexual battery conviction. The

court ordered the sentences for gross sexual imposition and sexual battery to be served

consecutively, for a total aggregate prison term of 18 years. Vandergriff did not appeal his

convictions or sentence.

       {¶ 4} On January 16, 2014, Vandergriff filed a motion for a delayed appeal. This

court denied the motion. State v. Vandergriff, 12th Dist. Clermont Nos. CA2014-01-005 and

CA2014-01-006 (Mar. 10, 2014) (Entry Denying Motion for Delayed Appeal). On May 9,

2014, Vandergriff filed a motion to vacate his convictions and sentence. The trial court

summarily dismissed Vandergriff's motion. The trial court characterized the motion as a

petition for postconviction relief and found the petition was untimely, barred by res judicata,

and did not allege facts that if true, would entitle Vandergriff to relief.

       {¶ 5} Vandergriff now appeals, asserting a sole assignment of error:

       {¶ 6} TRIAL COURT ABUSED ITS DISCRETION BY DENYING APPELLANT'S

POST CONVICTION RELIEF PEITION, FILED PURSUANT TO R.C. 2953.21.

       {¶ 7} Vandergriff argues the trial court abused its discretion in denying his

postconviction relief petition. Vandergriff maintains the court should have granted his petition

because the court erred in holding the plea and sentencing hearings for both of his cases on
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the same day, sentencing him to maximum consecutive sentences, and imposing separate

sentences for his gross sexual imposition convictions as the charges are allied offenses of

similar import.

       {¶ 8} A postconviction proceeding is not an appeal of a criminal conviction, but

rather, a collateral civil attack on a criminal judgment. State v. Calhoun, 86 Ohio St.3d 279,

281 (1999); State v. Bayless, 12th Dist. Clinton Nos. CA2013-10-020 and CA2013-10-021,

2014-Ohio-2475, ¶ 8-10. "In reviewing an appeal of postconviction relief proceedings, this

court applies an abuse of discretion standard." State v. Wagers, 12th Dist. Preble No.

CA2011-08-007, 2012-Ohio-2258, ¶ 15. The term "abuse of discretion" connotes more than

an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or

unconscionable. State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 130.

       {¶ 9} Pursuant to R.C. 2953.21(A)(2), a petition for postconviction relief "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 * * *. If no

appeal is taken * * * the petition shall be filed no later than one hundred eighty days after the

expiration of the time for filing the appeal."1 If a postconviction relief petition is filed beyond

the 180-day time limitation, or the petition is a second or successive petition for

postconviction relief, a trial court lacks jurisdiction to consider it unless the provisions of R.C.

2953.23(A) apply. State v. Garcia, 12th Dist. Butler No. CA2013-02-025, 2013-Ohio-3677, ¶

12. As pertinent to this case, R.C. 2953.23(A)(1) provides that a trial court may entertain a

petition filed after the expiration of the 180-day time period if a petitioner establishes both of

the following requirements:

               (a) Either the petitioner shows that the petitioner was
               unavoidably prevented from discovery of the facts upon which

1. While not applicable to the present case, R.C. 2953.21(A)(2) was revised on March 23, 2015 to allow a
petitioner 365 days to file a postconviction relief petition.
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              the petitioner must rely to present the claim for relief, or,
              subsequent to the period described 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 fact-finder would
              have found the petitioner guilty of the offense of which the
              petitioner was convicted * * *.

       {¶ 10} In the present case, Vandergriff's sentencing entries were journalized on April

15, 2013 for case number 2013 CR 00083 and April 16, 2013 for case number 2013 CR

00173. Vandergriff's time to file a direct appeal expired on May 16, 2013, whereas the

deadline to timely file a postconviction relief petition expired on November 12, 2013.

Vandergriff did not file the present petition until May 9, 2014, well past the 180-day deadline

for initial petitions for postconviction relief. Vandergriff has also failed to prove he was

prevented from discovering facts he must rely upon to support his claim nor has he pointed to

any new federal or state right recognized by the United States Supreme Court that applies

retroactively and would form the basis of his claim. Therefore, the trial court lacked

jurisdiction to consider Vandergriff's petition as it was untimely and he has failed to show any

of the requirements under R.C. 2953.23(A)(1).

       {¶ 11} Regardless, even assuming, Vandergriff's petition had been timely, the trial

court was barred from considering the petition under the doctrine of res judicata. "It is well-

established that a trial court may dismiss a postconviction relief petition on the basis of the

doctrine of res judicata." State v. Davis, 12th Dist. Butler No. CA2012-12-258, 2013-Ohio-

3878, ¶ 30. The doctrine of res judicata provides that "a final judgment of conviction bars a

convicted defendant who was represented by counsel from raising and litigating in any

proceeding except 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
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resulted in that judgment of conviction, or on an appeal from that judgment." State v.

Blankenburg, 12th Dist. Butler No. CA2012-04-088, 2012-Ohio-6175, ¶ 10.

       {¶ 12} As noted above, Vandergriff argues he is entitled to postconviction relief

because the plea and sentencing hearings for both of his cases should not have been heard

together on the same day, the imposition of maximum and consecutive sentences was in

error, and the sentences for his gross sexual imposition convictions should have merged.

Vandergriff was represented by counsel in the proceedings below and could have argued

these matters on direct appeal. Therefore, these claims are barred by the doctrine of res

judicata. Further, the fact that Vandergriff failed to file a timely direct appeal or that we

denied his motion for a delayed appeal does not change this well-recognized rule. See State

v. Franklin, 4th Dist. Meigs No. 05CA9, 2006-Ohio-1198, ¶ 10; State v. Vanceleve, 12th Dist.

Clermont No. CA2014-03-024, 2015-Ohio-230, ¶ 19.               Vandergriff cannot raise legal

challenges through a petition for postconviction relief when those issues could have been

raised in a direct appeal.

       {¶ 13} Consequently, the trial court did not abuse its discretion in denying Vandergriff's

petition for postconviction relief. Vandergriff's sole assignment of error is overruled.

       {¶ 14} Judgment affirmed.


       PIPER, P.J., and HENDRICKSON, J., concur.




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