[Cite as State v. Garner, 2017-Ohio-7814.]


                                   IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                        LAKE COUNTY, OHIO


STATE OF OHIO,                                     :        OPINION

                 Plaintiff-Appellee,               :
                                                            CASE NO. 2017-L-037
        - vs -                                     :

SHURMALE LAMAR GARNER,                             :

                 Defendant-Appellant.              :


Civil Appeal from the Lake County Court of Common Pleas, Case No. 06 CR 000174.

Judgment: Affirmed.


Charles Coulson, Lake County Prosecutor, and Anna C. Kelley, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).

Shurmale Lamar Garner, pro se, PID# A522-147, P.O. Box 8000, 501 Thompson
Road, Conneaut, OH 44030 (Defendant-Appellant).


DIANE V. GRENDELL, J.

        {¶1}     Defendant-appellant,        Shurmale   Lamar   Garner,   appeals   from   the

Judgment Entry of the Lake County Court of Common Pleas, denying his postconviction

petition.   The issues to be decided in this case are whether a claim regarding the

constitutionality of a statute is untimely and barred by res judicata when it is raised over

nine years after the defendant’s conviction; whether a sentence for drug possession and

trafficking is void when the police did not test the cocaine for purity, and whether
counsel must be appointed when the defendant’s claims lack merit on their face. For

the following reasons, we affirm the decision of the court below.

        {¶2}   On June 16, 2006, Garner was indicted for three drug-related offenses.

Following a jury trial, Garner was convicted of Trafficking in Cocaine, a felony of the first

degree, in violation of R.C. 2925.03(A)(2), and Possession of Cocaine, a felony of the

first degree, in violation of R.C. 2925.11, as well as accompanying specifications. In a

February 1, 2007 Judgment Entry of Sentence, Garner was sentenced to a total prison

term of thirteen years.

        {¶3}   In his direct appeal, Garner raised issues relating to his confession, jury

polling, sufficiency of the evidence, and his sentence.           This court affirmed the

convictions and sentence. State v. Garner, 11th Dist. Lake No. 2007-L-041, 2007-Ohio-

5914.

        {¶4}   On June 18, 2010, Garner filed a Motion to Vacate and Correct Void

Judgment, raising concerns with the jury verdict forms, which the trial court denied.

This denial was affirmed in State v. Garner, 11th Dist. Lake No. 2010-L-111, 2011-Ohio-

3426.

        {¶5}   Garner’s March 21, 2016 Motion to Correct Clerical Error Pursuant to

Crim.R. 36, alleging a sentencing error, was also denied by the trial court.            That

judgment was affirmed in State v. Garner, 11th Dist. Lake No. 2016-L-041, 2016-Ohio-

5785.

        {¶6}   On January 3, 2017, Garner filed a Petition for Post-Conviction

(Evidentiary Hearing) [sic], in which he argued, inter alia, that a recent Ohio Supreme

Court case, State v. Gonzales, ___ Ohio St.3d ___, 2016-Ohio-8319, ___ N.E.3d ___,




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rendered his conviction void, since it required that only pure cocaine be measured to

determine the amount in a defendant’s possession, which did not occur in his case.

The State filed a Response in opposition.

           {¶7}   In a January 27, 2017 Judgment Entry, the trial court denied Garner’s

petition as untimely filed.

           {¶8}   Garner timely appeals and raises the following assignments of error:

           {¶9}   “[1.] The appellant’s imprisonment violates the U.S. Constitution where

he’s imprisoned on statutes that are void for vagueness.

           {¶10} “[2.] The common pleas court was required via R.C. § 120.06(A)(3) and

the Sixth Amendment to appoint counsel on valid claims.

           {¶11} “[3.] The appellant’s sentence should be considered void because his

sentence does not comply with mandatory language of the statutes [in violation] of the

Fourteenth Amendment.”

           {¶12} Pursuant to R.C. 2953.21(A)(1)(a), a convicted defendant “who claims that

there was such a denial or infringement of the person’s rights as to render the judgment

void or voidable under the Ohio Constitution or the Constitution of the United States,”

may file a postconviction petition “stating the grounds for relief relied upon, and asking

the court to vacate or set aside the judgment or sentence or to grant other appropriate

relief.”

           {¶13} Generally, an appellate court reviews a trial court’s denial of a petition for

postconviction relief under an abuse of discretion standard. State v. Hendrix, 11th Dist.

Lake No. 2012-L-080, 2013-Ohio-638, ¶ 7. This court has held, however, in cases




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where the trial court denies a petition without a hearing, a de novo standard of review

applies. State v. Henry, 11th Dist. Lake No. 2008-L-178, 2010-Ohio-1446, ¶ 51.

       {¶14} The assignments of error will be considered out of order for ease of

discussion.

       {¶15} As an initial matter, we note that the trial court dismissed Garner’s petition

as untimely. A postconviction petition filed under R.C. 2953.21(A)(1) “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 * * *.” R.C.

2953.21(A)(2). To avoid application of this time requirement, the petitioner must show

either: (1) that he was unavoidably prevented from timely discovering the facts on which

the petition is based; or (2) that the United States Supreme Court has recognized a

new, retroactive federal or state right that applies to the petitioner’s case.           R.C.

2953.23(A)(1)(a). If one of these applies, then the petitioner must show 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 * * *.” R.C. 2953.23(A)(1)(b).

       {¶16} In his first assignment of error, Garner argues that the statute under which

he was convicted for Possession of Cocaine, R.C. 2925.11, was void for vagueness and

that he was denied due process since the statute did not provide that fillers could be

measured to establish the amount of cocaine a defendant possesses.

       {¶17} As noted above, a petition must be filed within one year of the filing of the

trial transcript in the direct appeal to be timely. Garner’s petition was submitted over

nine years after the transcript was filed. The exceptions to the timeliness requirement

discussed above do not apply here, since Garner was not prevented from discovering




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necessary facts, nor does he set forth a right that applies retroactively.         As to this

argument, the petition is untimely.

       {¶18} Even if this claim was not untimely, it would be barred by the doctrine of

res judicata, under which a defendant is precluded 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 * * *”

or on direct appeal. State v. Hobbs, 11th Dist. Lake No. 2010-L-064, 2011-Ohio-1298,

¶ 39, citing State v. Szefcyk, 77 Ohio St.3d 93, 96, 671 N.E.2d 233 (1996). Also State

v. McCaleb, 11th Dist. Lake No. 2004-L-003, 2005-Ohio-4038, ¶ 19 (applying res

judicata in postconviction proceedings). Claims relating to “constitutionality of a statute

or its application” which were not previously raised are also waived. State v. Awan, 22

Ohio St.3d 120, 489 N.E.2d 277 (1986), syllabus; State v. Jeffries, 182 Ohio App.3d

459, 2009-Ohio-2440, 913 N.E.2d 493, ¶ 49 (11th Dist.). Garner failed to raise this

argument at the trial court level at the time of his conviction or in his direct appeal and it

will not be considered now.

       {¶19} The first assignment of error is without merit.

       {¶20} In his third assignment of error, Garner argues that the Supreme Court’s

holding in State v. Gonzales, ___ Ohio St.3d ___, 2016-Ohio-8319, ___ N.E.3d ___,

that filler material should be excluded when weighing cocaine, renders his sentence

void. He contends that the purity of the cocaine in his case was not determined, which

impacted the level of offense with which he was charged and his ultimate sentence.

       {¶21} Initially, there is again a timeliness issue. Garner does not satisfy the

exceptions to the 365 day requirement as provided in R.C. 2953.23(A)(1)(a).               His




                                              5
argument does not relate to a new discovery of facts, nor does he show any new “right”

that has been created by the United States Supreme Court. Rather, he points only to

an Ohio Supreme Court case which changed the way a statute was interpreted and

applied. Such an exception is not provided for in R.C. 2953.23(A)(1)(a).

       {¶22} Furthermore, we emphasize that the initial Gonzales opinion was swiftly

vacated and is no longer the law of Ohio. On December 23, 2016, the Ohio Supreme

Court issued its opinion in Gonzales, holding that “in prosecuting cocaine-possession

offenses under R.C. 2925.11(C)(4)(b) through (f) involving mixed substances, the state

must prove that the weight of the actual cocaine, excluding the weight of any filler

materials, meets the statutory threshold.” Id. at ¶ 22. However, on March 6, 2017, the

Supreme Court granted reconsideration of its decision and held that “the applicable

offense level for cocaine possession under R.C. 2925.11(C)(4) is determined by the

total weight of the drug involved, including any fillers that are part of the usable drug.”

State v. Gonzales, ___ Ohio St.3d ___, 2017-Ohio-777, ___ N.E.3d ___, ¶ 18. In any

event, Garner has failed to provide grounds to find his conviction and sentence void

under this assignment.

       {¶23} The third assignment of error is without merit.

       {¶24} In his second assignment of error, Garner argues that he was entitled to

have counsel appointed to represent him on his petition for postconviction relief.

       {¶25} An offender is not automatically entitled to representation in postconviction

proceedings. State v. Crowder, 60 Ohio St.3d 151, 573 N.E.2d 652 (1991), paragraph

one of the syllabus (“an indigent petitioner does not have a state or a federal

constitutional right to representation by an attorney in a postconviction proceeding”).




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       {¶26} The Ohio Supreme Court has held that a petitioner is entitled, pursuant to

R.C. 120.16(A)(1) and (D), to representation by a public defender at a postconviction

proceeding “if the public defender concludes that the issues raised by the petitioner

have arguable merit.” Id. “[W]hen a trial court determines that a petitioner is entitled to

a hearing on his postconviction relief petition pursuant to R.C. 2953.21, it must notify the

public defender of the impending hearing who then, in his discretion, may represent the

petitioner if he opines the petition sets forth issues having ‘arguable merit.’” State v.

Giles, 11th Dist. Portage No. 97-P-0022, 1997 WL 752619, * 3 (Nov. 28, 1997), citing

R.C. 120.16(D); Crowder at 152-153.

       {¶27} However, this court has explained that “the indigent petitioner bears the

initial burden to show in the petition that he is entitled to a hearing” and, if the petitioner

fails to make such a showing, “the court is not required to notify the public defender, nor

is the public defender obligated to prosecute the petition.” Giles at * 3; State v. Dudley,

11th Dist. Trumbull No. 99-T-0166, 2000 WL 1876778, * 6 (Dec. 22, 2000).

       {¶28} The test for whether an evidentiary hearing must be held is whether there

are substantive grounds for relief that would warrant a hearing based upon the petition,

the supporting affidavits, and the files and records of the case. R.C. 2953.21(D); State

v. Grega, 11th Dist. Ashtabula No. 2014-A-0052, 2015-Ohio-946, ¶ 16. Here, Garner

failed to make a showing that he was entitled to an evidentiary hearing, for the reasons

discussed above, including that his claims were either time-barred, barred by the

doctrine of res judicata, or based on an application of case law that was vacated. Since

Garner did not demonstrate he was entitled to an evidentiary hearing “the trial court had




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no duty to refer this matter to the public defender’s office, and appellant was not entitled

to appointment of counsel to assist him in his postconviction proceeding.” Dudley at * 6.

       {¶29} The second assignment of error is without merit.

       {¶30} For the foregoing reasons, the judgment of the Lake County Court of

Common Pleas, denying Garner’s postconviction petition, is affirmed. Costs to be taxed

against appellant.



CYNTHIA WESTCOTT RICE, P.J.,

TIMOTHY P. CANNON, J.,

concur.




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