[Cite as State v. Jones, 2018-Ohio-306.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                   :

                 Plaintiff-Appellee,             :
                                                                    No. 17AP-431
v.                                               :             (C.P.C. No. 13CR-2345)

Antonio M. Jones,                                :           (REGULAR CALENDAR)

                 Defendant-Appellant.            :


                                           D E C I S I O N

                                     Rendered on January 25, 2018


                 On brief: Ron O'Brien, Prosecuting Attorney, and Seth L.
                 Gilbert, for appellee.

                 On brief: Antonio M. Jones, pro se.

                   APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
        {¶ 1} Defendant-appellant, Antonio M. Jones, appeals pro se from a judgment of
the Franklin County Court of Common Pleas denying his motion for relief from judgment.
Because we conclude the trial court did not abuse its discretion by denying appellant's
motion, we affirm.
I. Facts and Procedural History
        {¶ 2} The facts of the case are more fully detailed in this court's decision affirming
appellant's convictions on direct appeal. See State v. Jones, 10th Dist. No. 14AP-796,
2015-Ohio-2357, ¶ 2-11 ("Jones I"). As relevant to the present appeal, appellant was
indicted on four charges related to the shooting death of James E. Lane on April 20, 2013:
(1) murder, in violation of R.C. 2903.02, an unclassified felony, with an accompanying
firearm specification and repeat violent offender specification, (2) felony murder, in
violation of R.C. 2903.02, an unclassified felony, with an accompanying firearm
No. 17AP-431                                                                                 2


specification and repeat violent offender specification, (3) tampering with evidence, in
violation of R.C. 2921.12, a third-degree felony, with an accompanying firearm
specification, and (4) having a weapon while under disability, in violation of R.C. 2923.13,
a third-degree felony, with an accompanying firearm specification. Jones I at ¶ 2.
Appellant pled not guilty to all charges. Id. He waived his right to a jury trial on the charge
of having a weapon under disability and a bench trial was conducted as to that charge.
The other three charges were tried before a jury. Id. at ¶ 3. The jury found appellant guilty
of murder, felony murder, and tampering with evidence, and the firearm specifications
that accompanied both murder charges. Id. at ¶ 11. The trial court found appellant guilty
of having a weapon under disability and the repeat violent offender specifications. Id.
Following a sentencing hearing on September 12, 2014, the trial court merged the felony
murder count into the murder count and sentenced appellant to an aggregate sentence of
33 years to life imprisonment. Id. The trial court journalized the convictions and sentence
in a judgment entry on September 15, 2014. Id. On direct appeal, appellant challenged the
sufficiency of the evidence and claimed the verdicts were against the manifest weight of
the evidence. Id. at ¶ 12. This court affirmed the trial court's judgment, finding that both
the sufficiency and manifest weight of the evidence supported appellant's convictions. Id.
at ¶ 35.
       {¶ 3} Appellant subsequently filed a pro se motion for leave to file a delayed
motion for new trial. The trial court denied appellant's motion for leave and this court
affirmed on appeal, holding that appellant did not show he was prevented from
discovering the evidence he sought to use to support his delayed motion for new trial.
State v. Jones, 10th Dist. No. 16AP-13, 2016-Ohio-5387, ¶ 1 ("Jones II"). Appellant also
filed a pro se petition to vacate or set aside his judgment of conviction, pursuant to R.C.
2953.21, asserting ineffective assistance of trial counsel. The trial court denied appellant's
petition, finding several of his claims of ineffective assistance of counsel were barred by
res judicata and that appellant failed to present evidence demonstrating deficient
performance and/or prejudice as to his claims. State v. Jones, 10th Dist. No. 16AP-128,
2017-Ohio-1121, ¶ 7-8 ("Jones III"). This court affirmed on appeal, holding the trial court
did not abuse its discretion by denying appellant's petition. Jones III at ¶ 32-34.
No. 17AP-431                                                                            3


       {¶ 4} On May 3, 2017, appellant filed a pro se motion for relief from judgment,
pursuant to Civ.R. 60(B)(5), asserting fraud upon the court had been committed at trial.
Plaintiff-appellee, State of Ohio, filed a memorandum in opposition requesting the trial
court deny the motion for relief from judgment. On June 2, 2017, the trial court issued a
judgment denying appellant's motion for relief from judgment. The trial court held Civ.R.
60(B) did not apply because appellant was collaterally challenging his criminal conviction
and such collateral challenges were governed by R.C. 2953.21 and Crim.R. 35. The trial
court treated appellant's motion as a petition for postconviction relief, pursuant to R.C.
2953.21, and concluded it was barred by the doctrine of res judicata and the prohibition
on successive petitions for postconviction relief contained in R.C. 2953.23.
II. Assignments of Error
       {¶ 5} Appellant appeals and assigns the following two assignments of error for
our review:
               [I.] THE JUDGMENT OF THE TRIAL COURT IS
               CONTRARY TO THE CONSTITUTIONAL MANDATES OF
               THE    UNITED  STATES   CONSTITUTION  AND
               CONSTITUTION OF OHIO AND IS AN ABUSE OF
               JUDICIAL DISCRETION OF THE FIFTH AND
               FOURTEENTH AMENDMENTS.

               [II.] THE JUDGMENT OF THE TRIAL COURT IS
               CONTRARY TO THE MANDATES OF THE UNITED
               STATES    CONSTITUTION    AND     THE   OHIO
               CONSTITUTION WHERE THE COURT REFUSED TO
               DECIDE THE ISSUES OF DEFENDANT'S MOTION FOR
               RELIEF FROM JUDGMENT WHERE FRAUD UPON THE
               COURT WAS COMMITTED AND THE DENIAL
               CONSTITUTES AN ABUSE OF JUDICIAL DISCRETION
               VIOLATING   THE   FIFTH    AND    FOURTEENTH
               AMENDMENTS TO THE U.S. CONSTITUTION.

III. Discussion
       {¶ 6} In his two assignments of error, appellant asserts the trial court abused its
discretion by denying his motion for postconviction relief because the judgment entered
following the trial violated the protection against double jeopardy provided in the Fifth
Amendment to the United States Constitution and Article I, Section 10 of the Ohio
No. 17AP-431                                                                                  4


Constitution. Because both of appellant's assignments of error raise the same issue, we
will address them together.
A. Applicability of Civ.R. 60(B)
       {¶ 7} We begin, however, with a procedural issue. Appellant captioned his motion
as a motion for relief from judgment, pursuant to Civ.R. 60(B)(5), alleging fraud on the
court. The trial court held appellant could not challenge his conviction under Civ.R. 60(B)
and construed appellant's motion as a petition for postconviction relief under R.C.
2953.21. On appeal, appellant argues Civ.R. 60(B) was a proper basis for his motion.
       {¶ 8} "Courts may recast irregular motions into whatever category necessary to
identify and establish the criteria by which the motion should be judged." State v. Schlee,
117 Ohio St.3d 153, 2008-Ohio-545, ¶ 12. As the trial court noted, the Supreme Court of
Ohio has held the Rules of Civil Procedure may apply in a criminal case where there is no
applicable Rule of Criminal Procedure. Id. at ¶ 10 ("Today we hold that the plain language
of Crim.R. 57(B) permits a trial court in a criminal case to look to the Rules of Civil
Procedure for guidance when no applicable Rule of Criminal Procedure exists.").
Notwithstanding appeals under R.C. 2953.08, a petition for postconviction relief is the
exclusive remedy by which a defendant may bring a collateral challenge to a conviction or
sentence. R.C. 2953.21(K). See also State v. Newbern, 10th Dist. No. 06AP-928, 2007-
Ohio-1595, ¶ 5. Crim.R. 35 governs the procedure for a petition for postconviction relief.
Because there is an applicable criminal rule governing petitions for postconviction relief,
there was no need to rely on the civil rules in this case. Therefore, the trial court properly
recast appellant's motion as a petition for postconviction relief. See Schlee at ¶ 12 ("The
Civ.R. 60(B) motion filed by Schlee was filed subsequent to his direct appeal, claimed a
denial of constitutional rights, and sought reversal of the judgment rendered against him.
We conclude, therefore, that the Civ.R. 60(B) motion filed by Schlee could have been filed
as a petition for postconviction relief. Thus, it is not necessary to look to the Civil Rules or
other applicable law for guidance in the way Crim.R. 57(B) intends, because a procedure
'specifically prescribed by rule' exists, i.e., Crim.R. 35.").
B. Standard of review
       {¶ 9} Postconviction relief is a civil collateral attack on a judgment, not an
additional direct appeal of the underlying judgment. State v. Phipps, 10th Dist. No. 14AP-
No. 17AP-431                                                                                5


545, 2015-Ohio-3042, ¶ 5, citing State v. Calhoun, 86 Ohio St.3d 279, 281 (1999). A
petition for postconviction relief allows the petitioner to present constitutional issues that
would otherwise be unreviewable on direct appeal because the evidence supporting those
issues is not contained in the record of the criminal conviction. Phipps at ¶ 5, citing State
v. Carter, 10th Dist. No. 13AP-4, 2013-Ohio-4058, ¶ 15. A petition for postconviction
relief does not, however, provide a second opportunity to litigate the conviction. Id.
       {¶ 10} A petitioner is not automatically entitled to an evidentiary hearing on a
petition for postconviction relief but, instead, bears the initial burden of providing
evidence that demonstrates a cognizable claim of constitutional error. State v. Ibrahim,
10th Dist. No. 14AP-355, 2014-Ohio-5307, ¶ 9. A petition for postconviction relief may be
denied without an evidentiary hearing where the petition, supporting affidavits,
documentary evidence, files, and records do not demonstrate that the petitioner set forth
sufficient operative facts to establish substantive grounds for relief. Calhoun at paragraph
two of the syllabus. When a trial court dismisses a petition for postconviction relief
without holding an evidentiary hearing, it must enter findings of fact and conclusions of
law. R.C. 2953.21(C).
       {¶ 11} We review a trial court's denial of a petition for postconviction relief without
a hearing for an abuse of discretion. Phipps at ¶ 6, citing State v. McBride, 10th Dist. No.
14AP-237, 2014-Ohio-5102, ¶ 11. See also State v. Simmonds, 10th Dist. No. 16AP-332,
2017-Ohio-2739, ¶ 16 ("We review for abuse of discretion a trial court's denial of a
postconviction relief petition without a hearing."); State v. Gondor, 112 Ohio St.3d 377,
2006-Ohio-6679, ¶ 58 ("We hold that a trial court's decision granting or denying a
postconviction petition filed pursuant to R.C. 2953.21 should be upheld absent an abuse
of discretion; a reviewing court should not overrule the trial court's finding on a petition
for postconviction relief that is supported by competent and credible evidence."). An
abuse of discretion occurs when a trial court's decision is "unreasonable, arbitrary or
unconscionable." Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
       {¶ 12} It appears from the record that the trial court denied appellant's motion
without conducting an evidentiary hearing. The court concluded appellant's motion was
barred by the doctrine of res judicata because it presented an argument that could have
No. 17AP-431                                                                               6


been raised during trial or on direct appeal. The court also concluded appellant's motion
was barred under R.C. 2953.23 as a successive petition for postconviction relief.
C. Application of the doctrine of res judicata
       {¶ 13} A trial court may dismiss a petition for postconviction relief without holding
an evidentiary hearing when the claims raised in the petition are barred by the doctrine of
res judicata. State v. Campbell, 10th Dist. No. 03AP-147, 2003-Ohio-6305, ¶ 16, citing
State v. Szefcyk, 77 Ohio St.3d 93 (1996), syllabus. "Res judicata is applicable in all
postconviction relief proceedings." Szefcyk at 95. "[A] convicted defendant is precluded
under the doctrine of res judicata 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 resulted in that judgment of
conviction or on appeal from that judgment." Id. at 96. To avoid the doctrine of res
judicata, the claims in a petition for postconviction relief must be supported by
competent, relevant, and material evidence, outside the trial court's record, and it must
not be evidence that existed or was available for use at the time of trial. See State v.
Braden, 10th Dist. No. 02AP-954, 2003-Ohio-2949, ¶ 27.
       {¶ 14} As discussed more fully below, appellant appears to argue the state and the
trial court violated R.C. 2941.25 and the constitutional protections against double
jeopardy during the trial on the merits by submitting to the jury the charges of murder
and felony murder as to the same victim. To the extent appellant claims the jury could
not properly find him guilty as to both charges, he does not rely on material outside the
record at trial and he could have raised this issue at trial or in his direct appeal.
Accordingly, the trial court did not abuse its discretion by concluding that res judicata
barred appellant's petition for postconviction relief.
D. Prohibition on successive petitions for postconviction relief
       {¶ 15} Appellant filed his first petition for postconviction relief on June 4, 2015.
The trial court denied that petition, and this court affirmed the denial on appeal. Jones III
at ¶ 32-34. Thus, the motion at issue in this appeal was effectively a second petition for
postconviction relief.
       {¶ 16} A court may not entertain a second petition for postconviction relief unless
certain conditions apply:
No. 17AP-431                                                                           7


               (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:

               (1) Both 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 or, if the claim
               challenges a sentence of death that, but for constitutional
               error at the sentencing hearing, no reasonable factfinder
               would have found the petitioner eligible for the death
               sentence.

               (2) The petitioner was convicted of a felony, the petitioner is
               an offender for whom DNA testing was performed under
               sections 2953.71 to 2953.81 of the Revised Code or under
               former section 2953.82 of the Revised Code and analyzed in
               the context of and upon consideration of all available
               admissible evidence related to the inmate's case as described
               in division (D) of section 2953.74 of the Revised Code, and the
               results of the DNA testing establish, by clear and convincing
               evidence, actual innocence of that felony offense or, if the
               person was sentenced to death, establish, by clear and
               convincing evidence, actual innocence of the aggravating
               circumstance or circumstances the person was found guilty of
               committing and that is or are the basis of that sentence of
               death.

R.C. 2953.23(A).
      {¶ 17} With respect to the exception contained in R.C. 2953.23(A)(1), appellant did
not argue his claim for postconviction relief was based on a newly recognized federal or
No. 17AP-431                                                                                 8


state right that would satisfy the second clause of R.C. 2953.23(A)(1)(a). Appellant also
failed to show he was unavoidably prevented from discovery of the facts on which his
petition was based, which would be required under the first clause of R.C.
2953.23(A)(1)(a). Appellant argues on appeal that he relied on his trial counsel to protect
his rights at trial and he was unaware at the time of the constitutional arguments he now
seeks to assert in his pro se petition for postconviction relief. However, this is insufficient
to establish that he was unavoidably prevented from discovering the facts on which his
petition for postconviction relief was based. See State v. Kane, 10th Dist. No. 16AP-781,
2017-Ohio-7838, ¶ 17 ("For purposes of R.C. 2953.23(A)(1)(a), appellant's assertion that
she 'recently became concerned regarding the legality of [her] plea of guilty' is insufficient
to satisfy appellant's burden of proving that she was unavoidably prevented from
discovery of 'the facts' on which she must rely to present the claim for relief.").
       {¶ 18} With respect to the exception contained in R.C. 2953.23(A)(2), appellant
does not assert a claim of actual innocence based on DNA testing. Therefore, this
exception does not apply to his petition for postconviction relief.
       {¶ 19} Because appellant failed to demonstrate that either of the exceptions
contained in R.C. 2953.23(A) applied to his motion, which constituted a second petition
for postconviction relief, the trial court did not abuse its discretion by concluding the
petition was barred by R.C. 2953.23.
       {¶ 20} Accordingly, we overrule appellant's first and second assignments of error.
E. Appellant's statutory and constitutional argument
       {¶ 21} Having concluded the trial court did not abuse its discretion by denying
appellant's petition for postconviction relief because the petition was barred by res
judicata and R.C. 2953.23, we will briefly address the merits of appellant's petition.
Appellant appears to argue the state and trial court violated the merger statute, R.C.
2941.25, and the protections against double jeopardy contained in the United States
Constitution and the Ohio Constitution by submitting to the jury the charges of murder
and felony murder as to the same victim. Appellant cites R.C. 2941.25(A), which provides
"[w]here the same conduct by defendant can be construed to constitute two or more allied
offenses of similar import, the indictment or information may contain counts for all such
offenses, but the defendant may be convicted of only one." Appellant argues the trial court
No. 17AP-431                                                                              9


violated this statute by submitting the murder charge and the felony murder charge to the
jury and allowing the jury to return guilty verdicts on both charges, and then by merging
the convictions for purpose of sentencing. Appellant appears to argue that, pursuant to
R.C. 2941.25, the state was required to elect which charge it would pursue prior to
submission of the case to the jury.
       {¶ 22} The Supreme Court has expressly rejected appellant's construction of R.C.
2941.25, holding that "[t]he statute prohibits a conviction of both [offenses], not the
submission to the jury of both." State v. Osborne, 49 Ohio St.2d 135, 144 (1976), vacated
in part on other grounds and remanded, sub nom., Osborne v. Ohio, 438 U.S. 911 (1978).
The court has further held that "[a]llied offenses of similar import do not merge until
sentencing, since a conviction consists of verdict and sentence." (Emphasis added.) State
v. McGuire, 80 Ohio St.3d 390, 399 (1997). See also State v. Underwood, 124 Ohio St.3d
365, 2010-Ohio-1, ¶ 26 ("This court has previously said that allied offenses of similar
import are to be merged at sentencing."); State v. Johnson, 10th Dist. No. 00AP-1115,
2003-Ohio-578, ¶ 17 ("Notably, in this context, 'conviction' means a judgment of
conviction, which consists of a verdict or finding of guilty and the sentence imposed.").
(Emphasis sic.) In the trial on the merits in this case, after the jury returned verdicts of
guilty on the charges of murder and felony murder, the trial court merged the convictions
and imposed a sentence on the charge of murder. Jones I at ¶ 11. Accordingly, had the trial
court not denied appellant's petition for postconviction relief on procedural grounds, the
petition would have failed on its merits.
IV. Conclusion
       {¶ 23} For the foregoing reasons, we overrule appellant's two assignments of error
and affirm the judgment of the Franklin County Court of Common Pleas.
                                                                       Judgment affirmed.
                          BROWN, P.J., and TYACK, J., concur.
