[Cite as State v. Rice, 2019-Ohio-5278.]




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


State of Ohio                                   Court of Appeals No. L-19-1048

        Appellee                                Trial Court No. CR0200601328

v.

Andre Delawrence Rice                           DECISION AND JUDGMENT

        Appellant                               Decided: December 20, 2019


                                           *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.

        Andre Delawrence Rice, pro se.

                                           *****

        PIETRYKOWSKI, J.

        {¶ 1} Defendant-appellant, Andre Delawrence Rice, pro se, appeals the

February 13, 2019 judgment of the Lucas County Court of Common Pleas denying his

postconviction “Motion for Allied Offenses Merger Resentencing.”
       {¶ 2} The relevant facts are as follows. On September 18, 2006, appellant entered

a plea of guilty pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27

L.Ed.2d 162 (1970), to one count of involuntary manslaughter and one count of

aggravated robbery. Pursuant to an agreement with the state, appellant agreed to a

20-year imprisonment sentence. Appellant was sentenced on October 30, 2006.

       {¶ 3} On direct appeal to this court, appellant argued that the trial court erred in

denying his motion to suppress, that the court erred by failing to consider the relevant

statutory factors at sentencing, and that he received ineffective assistance of counsel.

Affirming the trial court we concluded that by tendering a plea appellant waived the

suppression arguments, that a jointly recommended sentence that is authorized by law is

valid, and that there was no indication that counsel’s performance invalidated the

knowing and voluntary nature of appellant’s plea. See State v. Rice, 6th Dist. Lucas No.

L-06-1343, 2007-Ohio-6529.

       {¶ 4} Following his direct appeal, appellant filed multiple appeals from denials of

postconviction petitions challenging the validity of the indictment, alleged omission of

the mens rea, arguing that the judgment entries were either void or deficient by failing to

reflect the agreement of the parties and failing to include the nature and length of

postrelease control, and challenges to consecutive sentences including the contention that

the offenses he was sentenced for were allied offenses of similar import. This court

rejected the majority of these challenges based on a finding that the claims were waived

by appellant’s Alford plea or were barred by res judicata. See State v. Rice, 6th Dist.




2.
Lucas No. L-09-1151, 2009-Ohio-3226; State v. Rice, 6th Dist. Lucas No. L-10-1182,

2010-Ohio-5511; State v. Rice, 6th Dist. Lucas No. L-10-1120, 2011-Ohio-357; State v.

Rice, 6th Dist. Lucas No. L-12-1127, 2012-Ohio-6250.

       {¶ 5} Additionally, appellant sought habeas corpus relief in federal district court

which was denied. Rich v. Welch, N.D.Ohio No. 3:10 CV 1916, 2014 WL 4794585

(Sept. 23, 2014). In his habeas petition, appellant raised 16 grounds for relief. Six of the

grounds were found to be barred by appellant’s guilty plea. Id. at *1. Another six of the

grounds were barred by res judicata. Id. Two ineffective assistance of counsel claims

were unavailing and two claims of actual innocence were “not cognizable.” Id.

       {¶ 6} Germane to this appeal, the district court noted that the claims barred by res

judicata had already been barred in state court on the same basis. Specifically, the court

concluded that appellant’s argument that he was improperly convicted of allied offense

crimes had been “procedurally defaulted” in state court as res judicata and, thus, was not

appropriate for habeas corpus review. Id. at *21. The court further found that appellant’s

argument that he should have been sentenced to concurrent, rather than consecutive

sentences, was barred. Id. at *24.

       {¶ 7} On April 17, 2018, appellant filed the petition at issue arguing that the court

failed to conduct an allied offense merger analysis and failed to make the required

statutory findings prior to imposing a consecutive sentence. Appellant also argued that

counsel was ineffective in failing to advise appellant of the allied offense and merger

issues, by advising appellant to enter into an unconstitutional plea, and by failing to




3.
pursue the state’s production of favorable exculpatory evidence, and that based on the

court’s and counsel’s errors appellant’s plea was not knowing and voluntary. Finally,

appellant argued his actual innocence. Appellant requested that either the void judgment

be vacated and a hearing held, or he be permitted to withdraw his plea.

       {¶ 8} On February 13, 2019, the trial court dismissed the petition finding that the

issues raised had either been addressed or could have been addressed in prior filings. The

court further found that the postconviction petition was untimely. This appeal followed

with appellant raising four assignments of error for our review:

              Assignment of error No. One: The Trial Court erred by plain error

       committing prohibited Due Process & Equal Protection of law violations of

       5th & 14th Sec. 1 Amendment rights of Appellant against Double Jeopardy

       of the U.S. Constitution and similar provisions of the Ohio Constitution by

       plain error Crim.R. 52(B). Where, The Trial Court erred to perform its

       mandatory statutory duty to conduct an allied offense of similar import

       analysis as to Appellant’s conduct, animus and import; nor made no

       findings for the imposed consecutive sentencing of the purported offenses

       of aggravated robbery and involuntary manslaughter purported for

       prosecution by the State on the record during sentence, after the guilty plea

       was obtained, or in the sentencing journal entry as required by law. The

       trial court further erred by plain error in its recent judgment by failure to




4.
     correct its error, and erred to assert defense counsel’s ineffectiveness by

     plain errors as asserted by appellant.

            Assignment of error No. Two: Alternative relief Defense Counsel

     erred by committing prohibited Due Process & Equal Protection of law

     violations of 5th & 14th Sec. 1 Amendment rights of Appellant against

     Double Jeopardy of the U.S. Constitution and similar provisions of the

     Ohio Constitution by plain error in violation of Crim.R. 52(B) and R.C. §

     2941.25(A). Where counsel allowed identified ineffective assistance of

     counsel breakdowns in the adversarial testing process, by f[a]iling to advise

     Appellant of his constitutional sentencing rights of Allied offenses of

     similar import and merger and concurrent sentencing for his alleged

     purported crimes prior to the plea agreement, or during the sentencing

     hearing so Appellant could have made an informed decision as required by

     constitutional law. The trial court further erred by plain error in its

     judgment and erred to assert defense counsel’s ineffectiveness by plain

     errors as asserted by Appellant.

            Assignment of error No. Three: Alternative relief Counsel & the

     Trial Court erred by committing plain Error in violation of Crim.R. 52(B)

     and R.C. 2941.25(A). Appellant’s plea was not made knowingly,

     intelligently, or voluntarily in the constitutional sense. Where Appellant

     was denied, deprived and/or prejudiced his Due Process & Equal Protection




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     of law rights of advisement of his Allied offense of similar import and

     merger by plain error of Defense Counsel and the Trial Court as required

     by law pursuant to Crim.R. 52(B) and R.C. 2941.25(A). Violating

     Appellant’s Due Process & Equal Protection of law rights of the 5th, 6th &

     14th Sec. 1 Amendment rights of Due Process, Equal Protection,

     Compulsory Process, Effective Assistance of Counsel, and against Double

     Jeopardy by Defense Counsel and the Trial Court. The trial court further

     erred by plain error in its judgment by failure to correct its error, and erred

     to assert defense counsel’s ineffectiveness by plain errors as asserted by

     Appellant.

            Assignment of error No. Four: Prosecution erred by plain error of

     willful suppression of requested, court ordered visual exculpatory evidence

     in violation of Crim.R. 52(B) & 16, Due Process, Equal Protection,

     Compulsory Process and right to a Fair Trial of law of the 5th, 6th, 14th

     Sec. 1 Amendments to the U.S. Constitution and similar provisions of the

     Ohio Constitution. Appellant asserts his actual and factual innocence

     pursuant to firsthand eyewitness notarized affidavit admission of guilt and

     facts of the case by the actual perpetrator as alternative relief. The trial

     court further erred by plain error in its judgment by failure to correct its

     error, and erred to assert defense counsel’s ineffectiveness by plain errors

     asserted by Appellant.




6.
        {¶ 9} The postconviction statute, R.C. 2953.21(A)(2), requires that a petition for

postconviction relief “shall be filed no later than three hundred sixty-five 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.” Appellant filed his current request

approximately ten years after the statutory 365-day period set forth in R.C.

2953.21(A)(2). R.C. 2953.23 sets forth specific requirements to permit consideration of

the April 17, 2018 motion as an untimely and successive petition for postconviction

relief. R.C. 2953.23 provides that a trial court is forbidden from entertaining untimely or

successive petitions for postconviction relief unless it meets two conditions. The

petitioner must first show either that he was unavoidably prevented from discovering the

facts upon which he relies in the petition, or that the United States Supreme Court has,

since his last petition, recognized a new federal or state right that applies retroactively to

the petitioner. Then, the petitioner must show by clear and convincing evidence that a

reasonable factfinder would not have found him guilty but for constitutional error at trial.

See R.C. 2953.23(A)(1); State v. Ayers, 6th Dist. Erie No. E-07-072, 2009-Ohio-393,

¶ 15.

        {¶ 10} Our review of the denial of a postconviction petition is for whether the trial

court abused its discretion. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860

N.E.2d 77, ¶ 58. A trial court abuses its discretion when its judgment is unreasonable,

arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144

(1980).




7.
       {¶ 11} In his April 17, 2018 petition for postconviction relief, appellant failed to

address the timeliness of the petition, neither making any claims that he was unavoidably

prevented from discovery of facts supporting his claim or making any assertion of a new

federal or state right impacting his case. Thus, on this basis alone the trial court did not

err in dismissing the petition.

       {¶ 12} A cursory examination of appellant’s claims regarding allied offense,

merger, consecutive sentences and ineffective assistance of counsel demonstrate that they

were either raised previously, as set forth above, or should have been raised on direct

appeal and are barred by res judicata. Further, a freestanding claim of actual innocence is

not constitutional and is not a cognizable postconviction claim. State v. Willis, 2016-

Ohio-335, 58 N.E.3d 515 (6th Dist.)

       {¶ 13} Accordingly, we find that the trial court did not abuse its discretion when it

denied appellant’s motion for postconviction relief. Appellant’s first, second, third, and

fourth assignments of error are not well-taken.

       {¶ 14} On consideration whereof, we find that appellant was not prejudiced or

prevented from having a fair proceeding and the judgment of the Lucas County Court of

Common Pleas is affirmed. Pursuant to App.R. 24, appellant is ordered to pay the costs

of this appeal.


                                                                          Judgment affirmed.




8.
                                                                      State v. Rice
                                                                      C.A. No. L-19-1048




       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
Thomas J. Osowik, 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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