[Cite as State v. Houston, 2011-Ohio-2798.]

               Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                                JOURNAL ENTRY AND OPINION
                                         No. 95994



                                        STATE OF OHIO

                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                    WILBERT HOUSTON

                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-303894

        BEFORE: Stewart, J., Kilbane, A.J., and Boyle, J.
       RELEASED AND JOURNALIZED: June 9, 2011

FOR APPELLANT

Wilbert Houston, Pro Se
Inmate No. 284-618
Marion Correctional Institution
P.O. Box 57
Marion, OH 43302


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Thorin O. Freeman
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113




MELODY J. STEWART, J.:

       {¶ 1} Appellant, Wilbert Houston, appeals a decision of the Cuyahoga

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

For the reasons stated below, we affirm.

       {¶ 2} In 1993, a jury found Houston guilty of aggravated murder with

an accompanying firearm specification. The trial court sentenced Houston to

life imprisonment for aggravated murder and a consecutive three years for
the firearm specification.       Houston appealed, and his conviction was

affirmed. State v. Houston (Apr. 27, 1995), 8th Dist. No. 67049, appeal not

allowed by 74 Ohio St.3d 1404, 655 N.E.2d 184. In 1996, Houston filed his

first petition for postconviction relief. The trial court denied the petition on

the grounds of res judicata and failure to submit evidentiary documents

containing sufficient operative facts demonstrating petitioner was entitled to

relief.     Houston appealed, and the denial of postconviction relief was

affirmed. State v. Houston, (Feb. 26, 1998), 8th Dist. No. 72383.

          {¶ 3} On September 23, 2010, Houston filed a second petition,

captioned “Verified Delayed Petition For Post-Conviction Relief,” which is the

subject of this appeal. In this petition, Houston argued that his indictment

was unconstitutionally vague because it named three defendants but failed to

identify any one of them as a principal offender. He further argued that he

was denied a fair trial because the trial court denied his request for a

separate trial, allowed a co-defendant to testify against him, and failed to

properly instruct the jury in the law. He also alleged ineffective assistance of

trial counsel for failing to object to the indictment, the joint trial, and the jury

instructions.    Houston supported his petition with his own “Affidavit of

Verity” and later supplemented his petition with a copy of the indictment.
      {¶ 4} On October 18, 2010, the trial court summarily denied the

petition.   Houston timely appeals raising two assignments of error for

review.

      {¶ 5} “I.    Appellant’s indictment is unconstitutionally vague and fails

to give him fair notice of the charges made against him.

      {¶ 6} “II.   The jury verdict rests on unconstitutional grounds.”

      {¶ 7} Before addressing the merits of Houston’s postconviction claims,

we must first address the state’s assertion that the petition was untimely

filed and therefore the trial court lacked jurisdiction over it.

      {¶ 8} A defendant may file a petition for postconviction relief to vacate

a judgment of conviction on the ground that the conviction is void or voidable

because the defendant was denied rights protected by the state or federal

constitution. R.C. 2953.21. A petition for postconviction relief must be filed

within the statutorily prescribed time.        R.C. 2953.21(A)(2).   A defendant

may not file a second or successive petitions for postconviction relief unless he

meets the criteria set forth by statute. Id.

      {¶ 9} R.C. 2953.23(A) states:

      {¶ 10} “(A) 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 division (A)(1) or (2) of this section applies:

      {¶ 11} “(1) Both of the following apply:

      {¶ 12} “(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.

      {¶ 13} “(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 ***.”

      {¶ 14} When a petition for postconviction relief is untimely filed, R.C.

2953.21(A)(2) divests a trial court of jurisdiction to hear the petition unless

the exceptions put forth in R.C. 2953.23 apply.          State v. Smith (Feb.17,

2000), 8th Dist. No. 75793; State v. Short, 8th Dist. No. 83492,

2004-Ohio-2695, ¶4; State v. Halliwell (1999), 134 Ohio App.3d 730, 734, 732

N.E.2d 405. In this case, Houston filed his second petition 17 years after his

conviction and 12 years after his first petition for postconviction relief.

Therefore, unless Houston can demonstrate an exception entitling him to
relief, his second petition is untimely and the trial court was without

jurisdiction to consider it.

      {¶ 15} Houston does not claim that he was unavoidably prevented from

discovery of the facts upon which he bases his claims, or that there is a new

state or federal right that applies to his situation. In fact, he gives no reason

for the lengthy delay in filing his petition and bases all of his claims on facts

in the record. Accordingly, Houston’s petition does not meet the exceptions

for an untimely petition set forth in R.C. 2953.23, and as a result, the trial

court was without jurisdiction to consider the claims raised within.

      {¶ 16} Additionally, all of Houston’s claims were raised, or could have

been raised on direct appeal or in his first petition for postconviction relief.

They are therefore barred by res judicata. State v. Perry (1967), 10 Ohio

St.2d 175, 226 N.E.2d 104.           Because Houston’s petition for postconviction

relief was untimely filed and his claims barred by principles of res judicata,

the trial court properly denied the petition without considering the merits of

those claims. Accordingly, Houston’s first and second assignments of error

are overruled.

      Judgment affirmed.

      It is ordered that appellee recover of appellant its costs herein taxed.

      The court finds there were reasonable grounds for this appeal.
      It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas to carry this judgment into execution.   A certified copy of

this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate

Procedure.




MELODY J. STEWART, JUDGE

MARY EILEEN KILBANE, A.J., and
MARY J. BOYLE, J., CONCUR
