[Cite as State v. Gomez, 2020-Ohio-835.]




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


State of Ohio                                    Court of Appeals Nos. L-19-1114
                                                                       L-19-1119
        Appellee
                                                 Trial Court No. CR0201601548
v.

Antwine Gomez                                    DECISION AND JUDGMENT

        Appellant                                Decided: March 6, 2020

                                           *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

        Antwine Gomez, pro se.

                                           *****

        PIETRYKOWSKI, J.

        {¶ 1} In this consolidated appeal, appellant, Antwine Gomez, appeals from the

May 8, 2019 judgment of the Lucas County Court of Common Pleas denying his petition

for postconviction relief.1 For the reasons which follow, we affirm.



1
 Appellant’s conviction was affirmed on direct appeal by this court in State v. Gomez,
6th Dist. Lucas No. L-17-1130, 2019-Ohio-576.
       {¶ 2} On appeal, appellant asserts a single assignment of error:

              THE TRIAL COURT ERRED TO THE PREJUDICE OF

       APPELLANT WHEN IT ABUSED ITS DISCRETION WHEN IT HAD

       AN ARMED UNIFORMED DEPUTY TO ESCORT AND SIT WITH

       APPELANT [SIC] ON THE WITNESS STAND VIOLATING HIS

       RIGHT TO A FAIR TRIAL SECURED BY THE 6TH AND 14TH

       AMENDMENT [SIC] ERODING HIS PRESUMPTION OF

       INNOCENCE.

       {¶ 3} Appellant filed a timely petition for postconviction relief on August 2, 2018.

He asserted that having an armed, uniformed deputy escort and stand by defendant while

he was on the witness stand eroded his presumption of innocence protected by the Fifth

and Fourteenth Amendments of the United States Constitution and Ohio Constitution,

Section 16, Article 1. He further asserts there was no scientific evidence to support the

charges and the jury missed certain exculpatory evidence because of the deputy’s

presence. Appellant did not provide any legal support for his claim.

       {¶ 4} In its May 8, 2019 judgment, the trial court found that the mere presence of

the deputy does not generally deny due process, State v. Houston, 8th Dist. Cuyahoga No.

60552, 1992 WL 181669, *3 (July 30, 1992), and appellant failed to assert anything to

distinguish his case from the Houston case. Appellant appeals.

       {¶ 5} In review of the trial court’s ruling, we find that we can affirm the trial

court’s judgment without reaching the merits of the petition. A trial court may




2.
summarily dismiss a petition for postconviction relief if it finds that the petition alleges

constitutional issues that “* * * have already been or could have been fully litigated by

the prisoner while represented by counsel, either before his judgment of conviction or on

direct appeal from that judgment, and thus have been adjudicated against him.” State v.

Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraphs two, three, seven, eight,

and nine of the syllabus. Accord State ex rel. Parker v. Russo, 131 Ohio St.3d 175, 2012-

Ohio-541, 962 N.E.2d 795, ¶ 1. The issues raised in this case could have been raised on

direct appeal but were not. Therefore, we find the petition is barred under the doctrine of

res judicata.

       {¶ 6} Appellant’s sole assignment of error is found not well-taken.

       {¶ 7} Having found that the trial court did not commit error prejudicial to

appellant and that substantial justice has been done, the judgment of the Lucas County

Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal

pursuant to App.R. 24.


                                                                          Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




3.
                                                              State v. Gomez
                                                              C.A. Nos. L-19-1114
                                                                         L-19-1119




Mark L. Pietrykowski, J.                      _______________________________
                                                          JUDGE
Arlene Singer, J.
                                              _______________________________
Christine E. Mayle, 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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