[Cite as State v. Lewis, 2018-Ohio-1336.]
                            STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


STATE OF OHIO                                 )    CASE NO. 17 MA 0132
                                              )
        PLAINTIFF-APPELLEE                    )
                                              )
VS.                                           )    OPINION
                                              )
FREDDIE LEWIS                                 )
                                              )
        DEFENDANT-APPELLANT                   )

CHARACTER OF PROCEEDINGS:                          Criminal Appeal from the Court of
                                                   Common Pleas of Mahoning County,
                                                   Ohio
                                                   Case No. 02 CR 317

JUDGMENT:                                          Affirmed.

APPEARANCES:

For Plaintiff-Appellee:                            Atty. Paul J. Gains
                                                   Mahoning County Prosecutor
                                                   Atty. Ralph M. Rivera
                                                   Assistant Prosecuting Attorney
                                                   21 West Boardman Street, 6th Floor
                                                   Youngstown, Ohio 44503

For Defendant-Appellant:                           Freddie Lewis, Pro se
                                                   #443-298
                                                   Trumbull Correctional Institution
                                                   P.O. Box 901
                                                   Leavittsburg, Ohio 44430

JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Carol Ann Robb
                                                   Dated: March 29, 2018
[Cite as State v. Lewis, 2018-Ohio-1336.]
WAITE, J.


        {¶1}     Appellant Freddie Lewis appeals an August 24, 2017 decision of the

Mahoning County Common Pleas Court denying a motion to vacate his sentence.

Appellant argues that the trial court failed to merge his aggravated murder and

aggravated robbery convictions. For the reasons provided, Appellant’s arguments

are without merit and the judgment of the trial court is affirmed.

                                  Factual and Procedural History

        {¶2}     Appellant and a codefendant were indicted for aggravated murder and

aggravated robbery with firearm specifications. The indictment stemmed from an

incident that occurred on February 21, 2002 where Appellant and his codefendant

shot and killed a college student after robbing him. A jury found Appellant guilty of

complicity to aggravated murder, complicity to aggravated robbery, and the firearm

specifications. The trial court sentenced Appellant to incarceration for life with the

possibility of parole after twenty years on the aggravated murder conviction and ten

years on the aggravated robbery conviction. The two firearm specifications were

merged and the court sentenced Appellant to three years on the merged gun

specifications. The court ordered all of the sentences to run concurrently.

        {¶3}     We affirmed Appellant’s convictions and sentence in State v. Lewis, 7th

Dist. 03 MA 36, 2005-Ohio-2699. On July 24, 2013, Appellant filed a motion for

“Issuance of a Revised Judgment Entry of Conviction and Sentence” and

“Assessment of Subject-Matter Jurisdiction.” In the motion Appellant argued, among

other things, that the trial court failed to merge his aggravated murder and

aggravated robbery convictions for purposes of sentencing. On October 17, 2013,
                                                                                     -2-

the trial court denied Appellant’s motion.     Appellant did not appeal the court’s

decision. On December 15, 2014, Appellant filed a second motion for “Issuance of a

Revised Judgment Entry of Conviction and Sentence” and “Assessment of Subject-

Matter Jurisdiction.” On February 5, 2015, the trial court sua sponte dismissed the

motion. Appellant filed an appeal with this Court, which was denied as untimely. On

July 7, 2017, Appellant filed a “MOTION TO VACATE SENTENCE CONTRARY TO

LAW.” In his motion, Appellant argued that his sentence is contrary to law and that

the trial court was required to merge his aggravated murder and aggravated robbery

convictions for purposes of sentencing and failed. On August 24, 2017, the trial court

denied the motion. It is from this judgment entry that Appellant appeals.

                                Postconviction Petition

       {¶4}   A motion to correct a sentence meets the definition of a postconviction

petition if “it is a motion that (1) was filed subsequent to [the defendant’s] direct

appeal, (2) claimed a denial of constitutional rights, (3) sought to render the judgment

void, and (4) asked for vacation of the judgment and sentence.” State v. Reynolds,

79 Ohio St.3d 158, 160, 679 N.E.2d 1131 (1997).

       {¶5}   The motion at issue here was clearly filed subsequent to Appellant’s

direct appeal, claims a denial of constitutional rights, seeks to render the judgment

void, and asks for vacation of his sentence. Thus, the motion is construed as a

postconviction petition.

       {¶6}   In order to successfully assert a postconviction petition, “the petitioner

must demonstrate a denial or infringement of his rights in the proceedings resulting in
                                                                                        -3-

his conviction sufficient to render the conviction void or voidable under the Ohio or

United States Constitutions.” State v. Agee, 7th Dist. No. 14 MA 0094, 2016-Ohio-

7183, ¶ 9, citing R.C. 2953.21(A)(1). The petitioner is not automatically entitled to a

hearing. State v. Cole, 2 Ohio St.3d 112, 113, 443 N.E.2d 169 (1982). Pursuant to

R.C. 2953.21(D), the petitioner bears the burden of demonstrating “substantive

grounds for relief” through the record or any supporting affidavits. However, because

a postconviction petition is not a forum to relitigate issues that could have been

raised on direct appeal, res judicata bars many claims. R.C. 2953.21(D).

       {¶7}   The doctrine of res judicata “bars an individual from raising a defense or

claiming a lack of due process that was or could have been raised at trial or on direct

appeal.” State v. Croom, 7th Dist. No. 13 MA 98, 2014-Ohio-5635, ¶ 7, citing State v.

Ishmail, 67 Ohio St.2d 16, 18, 423 N.E.2d 1068 (1981). However, where “an alleged

constitutional error is supported by evidence that is de hors the record, res judicata

will not bar the claim because it would have been impossible to fully litigate the claim

on direct appeal.” State v. Green, 7th Dist. No. 02 CA 35, 2003-Ohio-5142, ¶ 21,

citing State v. Smith, 125 Ohio App.3d 342, 348, 708 N.E.2d 739 (12th Dist.1997).

                                       Timeliness

       {¶8}   The state contends that the trial court properly dismissed Appellant's

postconviction petition as untimely. In relevant part, R.C. 2953.21(A)(2) provides that

a postconviction petition “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.”
                                                                                      -4-

      {¶9}   Ohio law provides a two-part exception in R.C. 2953.23(A)(1)(a)-(b).

Pursuant to R.C. 2953.23(A)(1)(a):

      [T]he petitioner was unavoidably prevented from discovery of the facts

      upon which the [he] must rely to present the claim for relief, or, * * * 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.

      {¶10} Pursuant to R.C. 2953.23(A)(1)(b), the petitioner must show “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.”

      {¶11} The record in this matter reflects that Appellant filed the trial transcripts

with this Court on July 31, 2003. Appellant filed his postconviction petition on July 7,

2017, approximately thirteen years after filing his transcripts.      Pursuant to R.C.

2953.21(A)(2), his petition is untimely unless he can show this matter falls within the

exception provided by R.C. 2953.23(A)(1)(a)-(b).

      {¶12} Appellant does not argue that his case falls within the exception. In

fact, Appellant does not present any arguments as to the timeliness of his motion.

Nonetheless, Appellant is barred from raising his arguments by the doctrine of res

judicata. Appellant could have raised an argument regarding merger in his direct

appeal. In fact, Appellant has already raised this issue twice, once in his July 24,

2013 motion and once in his December 15, 2014 motion. Appellant failed to appeal
                                                                                  -5-

the trial court’s denial of his July 24, 2013 motion and his December 15, 2014 appeal

was dismissed by this Court as untimely. As such, Appellant is barred from raising

these issues because they are res judicata.

                         ASSIGNMENT OF ERROR NO. 1

      THE     TRIAL    COURT      FAILED      TO    MERGE      APPELLANT'S

      CONVICTIONS FOR AGGRAVATED MURDER AND AGGRAVATED

      ROBBERY AS ALLIED OFFENSES OF SIMILAR IMPORT UNDER

      R.C.   2941.25(A),    IN   VIOLATION     OF    HIS   DUE     PROCESS

      PROTECTIONS UNDER THE FOURTEENTH AMENDMENT TO THE

      U.S. CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO

      CONSTITUTION.

                         ASSIGNMENT OF ERROR NO. 2

      APPELLANT'S SENTENCE OF THIRTY-THREE YEARS TO LIFE IS

      CONTRARY TO LAW AND VOID WHERE THE TRIAL COURT

      FAILED TO MERGE HIS CONVICTIONS FOR AGGRAVATED

      MURDER AND AGGRAVATED ROBBERY, INSTEAD SENTENCING

      HIM SEPARATELY ON BOTH, VIOLATING HIS DUE PROCESS

      PROTECTIONS UNDER THE FOURTEENTH AMENDMENT TO THE

      U.S. CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO

      CONSTITUTION.

                         ASSIGNMENT OF ERROR NO. 3
                                                                                 -6-

       THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S

       MOTION TO VACATE A SENTENCE CONTRARY TO LAW, IN

       VIOLATION OF HIS DUE PROCESS PROTECTIONS UNDER THE

       FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION AND

       ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.

       {¶13} Due to the untimeliness of Appellant’s motion and the fact that he is

barred from raising these arguments by res judicata, each of these assignments of

error are moot. Hence, Appellant’s assignments of error are without merit and are

overruled.

                                       Conclusion

       {¶14} Appellant argues that the trial court failed to merge his aggravated

murder and aggravated robbery convictions. Appellant’s arguments are untimely and

are barred by res judicata. Accordingly, Appellant’s arguments are without merit and

the judgment of the trial court is affirmed.


Donofrio, J., concurs.

Robb, P.J., concurs.
