[Cite as State v. Webb, 2009-Ohio-3412.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              MARION COUNTY



STATE OF OHIO,

    PLAINTIFF-APPELLEE,                                   CASE NO. 9-08-58

    v.

LESLIE WEBB,                                                    OPINION

    DEFENDANT-APPELLANT.




                 Appeal from Marion County Common Pleas Court
                           Trial Court No. 06-CR-0097

                                     Judgment Affirmed

                              Date of Decision: July 13, 2009




APPEARANCES:

         Leslie Webb, Appellant

         Lawrence H. Babich for Appellee
Case No. 9-08-58




SHAW, J.

       {¶1} Defendant-Appellant Leslie Webb (“Webb”) appeals the October 31,

2008 judgment entry of the Court of Common Pleas, Marion County, Ohio

denying his petition for post conviction relief.

       {¶2} This matter stems from Webb’s guilty plea on April 28, 2006 to

Operating a Vehicle Under the Influence, in violation of R.C. 4511.19(A)(1)(a), a

felony of the fourth degree; Driving Under OVI Suspension, in violation of R.C.

4510.14(A), a misdemeanor of the first degree; Retaliation, in violation of R.C.

2921.05(A), a felony of the third degree; and one count of Public Indecency, in

violation of R.C. 2907.09(A)(1), a fourth degree misdemeanor. On May 3, 2006

Webb was sentenced to a total prison term of four years.

       {¶3} On September 26, 2007 Webb was granted judicial release and

placed on three years of community control sanctions. On December 19, 2007 a

violation and notice of hearing was filed, alleging that Webb violated his

community control sanctions by failing to complete a four to six month

community based correctional facility at the West Central Community

Correctional Facility.

       {¶4} On December 28, 2007 Webb’s judicial release was revoked. The

trial court found that:




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      Upon the stipulation of the Defendant, the court finds that the
      defendant did violate the conditions of his community control
      sanctions in the following respects: #18 – I will successfully
      complete a four to six month community based correctional
      facility at West Central Community Correctional Facility in
      Marysville, Ohio, and any required aftercare.

The trial court reimposed Webb’s original sentence of four years.

       {¶5} On October 7, 2008 Webb filed a post-conviction petition alleging

that the trial court erred in imposing the condition that he complete the program at

the community correctional facility. In his petition, Webb argued that a medical

condition kept him from completing the program. On October 31, 2008 the trial

court denied Webb’s petition for post-conviction relief.

       {¶6} Webb now appeals asserting two assignments of error.

                  ASSIGNMENT OF ERROR I
      THE TRIAL COURT ABUSED IT’S [SIC] DISCRETION BY
      FAILING TO ADMIT IT’S [SIC] OWN REVERSIBLE
      ERROR AND BY BLINDLY DENYING APPELLANT’S
      POSTCONVICTION PETITION, WHEN THE RECORD
      CLEARLY SHOWS THAT THE TRIAL COURT
      ORIGINALLY ERRED IN SETTING A CONDITION OF
      PROBATION WHICH APPELLANT WAS MEDICALLY
      UNABLE TO COMPLETE, AND THEN VIOLATING
      APPELLANT’S PROBATION FOR HIS FAILURE TO
      COMPLETE WHAT WAS CLEARLY AN UNLAWFUL AND
      UNENFORCEABLE SANCTION.

                 ASSIGNMENT OF ERROR II
      APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF
      COUNSEL WHEN HE WAS SUBJECTED TO A DE FACTO
      SENTENCING HEARING WHEN GRANTED JUDICIAL
      RELEASE WITHOUT BEING REPRESENTED BY
      COUNSEL, WAS NOT EFFECTIVELY REPRESENTED BY
      COUNSEL AT THE PROBATION VIOLATION HEARING


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      WHERE COUNSEL FAILED TO RAISE THE OBVIOUS
      ISSUES OF APPELLANT’S MEDICAL CONDITION AND
      MEDICAL PROBLEMS AS THE CVCF, AND WHERE THE
      TRIAL COURT NEVER APPOINTED COUNSEL TO
      REPRESENT APPELLANT ON THE POSTCONVICTION
      PETITION WHICH THE COURT ARBITRARILY AND
      CAPRICIOUSLY DENIED WITHOUT A FORMAL
      HEARING OR FINDING OF FACTS, VIOLATING
      APPELLANT’S RIGHT TO DUE PROCESS AND EQUAL
      PROTECTION AMONG OTHER RIGHTS.

       {¶7} For ease of discussion, we will address Webb’s assignments of error

together. As an initial matter, we note that this Court has previously found that

post-conviction relief is not available to challenge a probation revocation. See

State v. Zorns, 120 Ohio App.3d 360, 697 N.E.2d 1098. Although the present case

concerns the revocation of judicial release, we believe that the rationale as

articulated in Zorns would likely be applicable.

       {¶8} Additionally, we recognize that Webb’s petition for post-conviction

relief is untimely. Timeliness of a petition for post-conviction relief is governed

by R.C. 2953.21(A)(2) which provides in pertinent part:

      Except as otherwise provided in section 2953.23 of the Revised
      Code, a petition under division (A)(1) of this section 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 ... If no appeal is
      taken, except as otherwise provided in section 2953.23 of the
      Revised Code, the petition shall be filed no later than one
      hundred eighty days after the expiration of the time for filing
      the appeal.




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          {¶9} This Court has previously recognized that a trial court is without

jurisdiction to consider a petition for post-conviction relief that is filed outside of

the statutory 180 day time limit. State v. Osborn, 3rd Dist. No 9-06-44, 2007-

Ohio-1629. Furthermore, the Ohio Supreme Court held in State ex rel Kimbrough

v. Greene (2002), 98 Ohio St.3d 116, 781 N.E.2d 155, 2002-Ohio-7042, at ¶ 6,

that “[a] trial court need not issue findings of fact and conclusions of law when it

dismisses an untimely filed petition” with respect to a petition for post conviction

relief.

          {¶10} In the present case, Webb’s petition was filed with the Clerk of

Courts on October 7, 2008. Webb’s judicial release was revoked on December 28,

2007. The time for timely filing of a post conviction petition had expired.

          {¶11} Although    Webb’s    petition   is   untimely   pursuant    to   R.C.

2953.21(A)(2), if Webb’s’s petition satisfies the requirements of R.C. 2953.23(A),

it would remove the petition from the 180 day filing requirement of R.C.

2953.21(A). R.C. 2953.23(A)(1) requires:

          (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


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      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.

      {¶12} In order to satisfy R.C. 2953.23 Webb would have to show that he

was “unavoidably prevented” from discovering new evidence which is the basis of

his claim. Here, Webb does not argue about his underlying guilt. Instead, he

argues that his judicial release should not have been revoked.        Accordingly,

Webb’s petition is not removed from the timeliness requirements of R.C. 2953.21.

      {¶13} Finally, in further support of the trial court's disposition of Webb's

Petition, we note that the Supreme Court of Ohio has held that the doctrine of res

judicata will bar a defendant from raising any defenses or constitutional claims in

a post conviction appeal under R.C. 2953.21 that were or could have been raised

by the defendant at trial or on direct appeal. State v. Perry (1967), 10 Ohio St.2d

175, 180, 226 N.E.2d 104. Thus, the doctrine of res judicata will bar all claims

except those that were not available at trial or on appeal because they are based on




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evidence outside the record. State v. Medsker, 3rd Dist. No. 1-04-24, 2004-Ohio-

4291.

        {¶14} Here, Webb could have raised the instant arguments in a direct

appeal of the revocation of his judicial release. Webb did not take a timely direct

appeal of the revocation of his judicial release. Accordingly, Webb’s claims are

barred by res judicta.

        {¶15} In the present case, Webb's petition concerned improper subject

matter, was untimely with no applicable exception under R.C. 2953.23 from the

timeliness requirement, and the claims made in the petition would be barred by the

doctrine of res judicata. Therefore, the trial court properly denied Webb's petition.

Accordingly, his assignments of error are overruled and the judgment of the

Common Pleas Court of Marion County is affirmed.

                                                                Judgment Affirmed

PRESTON, P.J., concurs.

/jnc



ROGERS, J., concurs separately.

        {¶16} I agree with the result reached by the majority opinion. However, it

is my opinion that Webb’s motion to the trial court was incorrectly designated as a

motion for postconviction relief, and, as such, a discussion of procedures under

R.C. 2953.21 is unnecessary.


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       {¶17} R.C. 2953.21 governs petitions for postconviction relief and

provides, in pertinent part:

       (A)(1)(a) Any person who has been convicted of a criminal
       offense or adjudicated a delinquent child and who claims that
       there was such a denial or infringement of the person's rights as
       to render the judgment void or voidable * * * [.]
       ***
       (2) Except as otherwise provided in section 2953.23 of the
       Revised Code, a petition under division (A)(1) of this section
       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 or,
       if the direct appeal involves a sentence of death, the date on
       which the trial transcript is filed in the supreme court. If no
       appeal is taken, except as otherwise provided in section 2953.23
       of the Revised Code, the petition shall be filed no later than one
       hundred eighty days after the expiration of the time for filing the
       appeal.

(Emphasis added). R.C. 2953.21(A)(1)(a),(A)(2). As set forth above, paragraph

(A)(1)(a) defines who may file such a motion as a person convicted of a criminal

offense, and sub-paragraph (2) requires that any such motion be filed within 180

days after the trial transcript is filed. Thus, from its clear wording referring to an

original conviction, the General Assembly intended R.C. 2953.21 to provide a

method of attacking a conviction, not a revocation of judicial release.          In a

proceeding involving revocation of judicial release, a defendant may directly

appeal the specific judgment; however, postconviction relief is not available to

challenge revocation of judicial release. See State v. Zorns (1997), 120 Ohio

App.3d 360 (finding that postconviction relief was not available to challenge



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revocation of probation). Here, Webb failed to directly appeal the trial court’s

revocation of his judicial release and the re-imposition of his sentence. Thus, as

the postconviction relief proceedings under R.C. 2953.21 were not available to

him, the trial court properly dismissed his motion.

/jnc




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