[Cite as State v. Jackson, 2015-Ohio-7.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     TRUMBULL COUNTY, OHIO


STATE OF OHIO,                                  :      OPINION

                 Plaintiff-Appellee,            :
                                                       CASE NO. 2013-T-0103
        - vs -                                  :

NATHANIEL JACKSON,                              :

                 Defendant-Appellant.           :


Criminal Appeal from the Trumbull County Court of Common Pleas.
Case No. 2001 CR 00794.

Judgment: Affirmed.


Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant
Prosecutor, Trumbull County Administration Building, Fourth Floor, 160 High Street,
N.W., Warren, OH 44481-1092 (For Plaintiff-Appellee).

Timothy Young, Ohio Public Defender, and Randall L. Porter, Assistant State Public
Defender, 250 East Broad Street, Suite 1400, Columbus, OH 43215-9308 (For
Defendant-Appellant).



TIMOTHY P. CANNON, P.J.

        {¶1}     Appellant, Nathaniel Jackson, appeals from the September 27, 2013

judgment entry of the Trumbull County Court of Common Pleas, dismissing appellant’s

postconviction petition. For the reasons that follow, the judgment of the trial court is

affirmed.
      {¶2}   In November 2002, appellant was found guilty of two counts of aggravated

murder, one count of aggravated burglary, and one count of aggravated robbery. The

charges stemmed from the shooting death of Robert Fingerhut. At the time of his death,

Mr. Fingerhut was residing with his former wife, Donna Roberts. During the months

prior to Mr. Fingerhut’s murder, appellant and Roberts exchanged letters and phone

calls in which they plotted for appellant to murder Mr. Fingerhut so that Roberts could

collect life insurance proceeds in excess of $500,000. Roberts was also charged with

murder for her role in Mr. Fingerhut’s death.

      {¶3}   Appellant was found guilty, and the jury recommended the death penalty.

After weighing the aggravating circumstances and the mitigating facts, the trial court

concluded the death penalty was appropriate. In January 2003, appellant filed a direct

appeal of his death penalty to the Ohio Supreme Court. The Supreme Court affirmed

appellant’s convictions and the imposition of the death penalty. State v. Jackson, 107

Ohio St.3d 300, 2006-Ohio-1.

      {¶4}   In   June    2004,   appellant’s   original   and   amended     petitions   for

postconviction relief were denied by the trial court. This court affirmed the trial court’s

judgment. State v. Jackson, 11th Dist. Trumbull No. 2004-T-0089, 2006-Ohio-2651.

The Ohio Supreme Court declined jurisdiction. State v. Jackson, 111 Ohio St.3d 1469,

2006-Ohio-5625.

      {¶5}   On August 2, 2006, the Ohio Supreme Court vacated Donna Roberts’

death sentence on the basis of ex parte communication between the prosecution and

Judge John M. Stuard, the common pleas court judge who presided over both Roberts’

and appellant’s trials. State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, ¶3. The




                                            2
ex parte communication at issue was the use of the prosecutor in preparing the court’s

sentencing opinion without the inclusion of defense counsel in the process. Id.

       {¶6}   On September 5, 2006, presumably based on the Roberts decision,

appellant filed a Civ.R. 60(B) motion for relief from the trial court’s judgment entry

denying his petition for postconviction relief.

       {¶7}   While his Civ.R. 60(B) motion for relief was pending, appellant filed an

application for disqualification of Judge Stuard, stating the following: “1) Judge Stuard

has a personal stake in the outcome, 2) Judge Stuard has personal knowledge of

disputed evidentiary facts, and 3) Judge Stuard will be called as a material witness.”

       {¶8}   On November 29, 2006, former Chief Justice Thomas Moyer declined to

disqualify Judge Stuard. In re Disqualification of Stuard, 113 Ohio St.3d 1236, 2006-

Ohio-7233. In denying appellant’s affidavit seeking disqualification, Chief Justice Moyer

stated that there was “no evidence in the record * * * to suggest that [Judge Stuard] has

shown any hostility or bias toward either party, and there is no indication that he is

unable or unwilling to resolve any remaining disputed matters with an open state of

mind.” Id. at ¶8.

       {¶9}   The trial court denied appellant’s Civ.R. 60(B) motion, and this court

affirmed. State v. Jackson, 11th Dist. Trumbull No. 2008-T-0024, 2010-Ohio-1270. The

Ohio Supreme Court declined jurisdiction. State v. Jackson, 135 Ohio St.3d 1470,

2013-Ohio-2512.

       {¶10} On February 29, 2008, while his appeal from the trial court’s denial of his

Civ.R. 60(B) motion for relief was pending with this court, appellant filed a motion for

new trial and/or sentencing hearing.          The basis of appellant’s motion was the




                                              3
collaboration between Judge Stuard and the prosecution in drafting Judge Stuard’s

sentencing opinion.

       {¶11} On May 4, 2009, the trial court denied appellant’s motion for new trial

and/or sentencing. Appellant appealed the trial court’s judgment to this court. State v.

Jackson, 190 Ohio App.3d 319, 2010-Ohio-5054 (11th Dist.).                       We reversed and

remanded the case for resentencing on the basis that the same drafting procedures

involving the sentencing entry that occurred in Roberts took place in appellant’s case.

Id. at ¶29.1

       {¶12} On June 24, 2008, appellant filed a request for leave to file his motion for

a new trial and a motion for new trial based on ex parte communications between Judge

Stuard and the prosecution.            An appeal of the trial court’s judgment overruling

appellant’s motion for new trial is currently pending with this court.

       {¶13} On June 28, 2013, appellant filed the instant postconviction petition that

contained 19 grounds for relief. Appellee filed a motion to dismiss appellant’s petition

on July 25, 2013.        Appellant then filed a response opposing appellee’s motion to

dismiss.

       {¶14} On September 27, 2013, the trial court denied all 19 grounds for relief.

       {¶15} Appellant timely appeals the trial court’s judgment entry dismissing his

postconviction petition. On appeal, appellant sets forth six assignments of error. For

sake of clarity, appellant’s assignments of error are considered out of order.

       {¶16} In his first assignment of error, appellant argues:


1. On August 14, 2012, the trial court re-sentenced appellant to death. Appellant subsequently filed a
second direct appeal of his death penalty, which is currently pending with the Ohio Supreme Court. State
v. Jackson, Ohio Supreme Court No. 2012-1644.



                                                   4
        {¶17} “The trial court erred when it dismissed [appellant’s] post-conviction

petition without reviewing the entire record.”

        {¶18} Specifically, appellant asserts that the trial court dismissed his petition

without reviewing the trial transcript.    Appellant believes that during the time of his

postconviction proceedings, the trial court “did not have access to sixteen of the

seventeen volumes of the trial transcript” because they had been transferred to the Ohio

Supreme Court.

        {¶19} R.C. 2953.21 governs postconviction relief petitions.         R.C. 2953.21(C)

states, in pertinent part:

                Before granting a hearing on a petition filed under division (A) of
                this section, the court shall determine whether there are substantive
                grounds for relief. In making such a determination, the court shall
                consider, in addition to the petition, the supporting affidavits, and
                the documentary evidence, all the files and records pertaining to
                the proceedings against the petitioner, including, but not limited to,
                the indictment, the court’s journal entries, the journalized records of
                the clerk of the court, and the court reporter’s transcript.

        {¶20} Additionally, it has been said that the duty of the trial court to consider the

entire record is especially critical in cases where the judge considering the

postconviction petition is not the same judge who presided over the trial. See State v.

Calhoun, 86 Ohio St.3d 279, 286 (1999), citing State v. Moore, 99 Ohio App.3d 748,

754 (1st Dist.1994). In this case, Judge Stuard, who had presided over appellant’s trial,

retired and passed away between the conclusion of the trial and consideration of this

petition for relief.

        {¶21} “An appellate court reviewing a lower court’s judgment indulges in a

presumption of regularity of the proceedings below.” Hartt v. Munobe, 67 Ohio St.3d 3,

7 (1993), citing Rheinstrom v. Steiner, 69 Ohio St. 452, 455 (1904). “A party asserting



                                               5
error in the trial court bears the burden to demonstrate error by reference to matters

made part of the record[.]” Id., citing Knapp v. Edwards Laboratories, 61 Ohio St.2d

197, 199 (1980).

       {¶22} In this case, the trial court stated that it “reviewed the petition, the

supporting affidavits, the documentary evidence, the files and records pertaining to the

proceedings against the [appellant], including, but not limited to, the indictment, the

court’s journal entries, the journalized records of the clerk of the court, and the relevant

law.” Additionally, on October 1, 2012, the Ohio Supreme Court ordered the Clerk of

Court of Common Pleas for Trumbull County to “make a copy of the record and retain

the copy for use in any postconviction proceeding.” This entry therefore suggests,

contrary to appellant’s assertion, that there was a copy of the trial court records

available for the trial court’s review. Appellant has failed to establish that the entire

record was not available for the trial court’s review.

       {¶23} Accordingly, appellant’s first assignment of error is without merit.

       {¶24} In his fourth assignment of error, appellant argues:

       {¶25} “The trial court erred when it denied appellant’s petition without affording

him discovery.”

       {¶26} In appellant’s appeal from the trial court’s dismissal of his first

postconviction relief petition, this court stated:

              In interpreting R.C. 2953.21 et seq., the provisions which govern
              postconviction relief in this state, the Supreme Court of Ohio has
              stated that there is no specific requirement that civil discovery must
              be afforded to the defendant in this type of proceeding. As a result,
              the decision to grant discovery in a given situation lies within the
              sound discretion of the trial judge. Furthermore, it has been
              expressly held that if the trial court concludes that the petitioner has
              failed to state substantive grounds to warrant an evidentiary



                                               6
              hearing on a petition, that court does not abuse its discretion in
              overruling a request for discovery.

(Citations omitted.) Jackson, 2006-Ohio-2651, at ¶21.

       {¶27} In this case, as explained further in this opinion, the trial court did not err in

concluding that none of appellant’s claims for relief were sufficient to state substantive

grounds for a hearing on his petition. Under such circumstances, it necessarily follows

that the trial court did not abuse its discretion in denying any civil discovery to appellant.

See id.

       {¶28} As such, appellant’s fourth assignment of error lacks merit.

       {¶29} In his second assignment of error, appellant argues:

       {¶30} “The trial court erred when it determined that [appellant’s] post-conviction

petition was barred by the statute of limitations.”

       {¶31} When a direct appeal involves a sentence of death, a petition for

postconviction relief must be filed no later than 180 days after the date on which the trial

transcript is filed in the Supreme Court. R.C. 2953.21(A)(2). Appellant filed this, his

second, postconviction petition on June 28, 2013.

       {¶32} In the trial court’s September 27, 2013 judgment entry, which dismissed

appellant’s entire petition as untimely, the court stated, “[d]espite the re-sentencing in

this matter which took place on August 14, 2012, the time period does not toll again for

post-conviction relief.” In making this conclusion, the trial court relied on the Twelfth

Appellate District’s decision in State v. Piesciuk, 12th Dist. Butler No. CA2009-10-251,

2010-Ohio-3136. The court in Piesciuk stated, “‘Ohio case law indicates that the time

limit for a postconviction relief petition runs from the original appeal of the conviction,

and that a resentencing hearing does not restart the clock for postconviction relief



                                              7
purpose as to any claims attacking the underlying conviction.’” Id. at ¶12, quoting State

v. Seals, 8th Dist. Cuyahoga No. 93198, 2010-Ohio-1980, ¶7.

        {¶33} In this case, out of appellant’s 19 stated grounds for relief, 18 attack the

underlying finding of guilty and only one relates to his August 14, 2012 resentencing.

Accordingly, these 18 grounds needed to be raised no later than 180 days after the date

on which the trial transcript was filed in the Ohio Supreme Court.             See R.C.

2953.21(A)(2). Accordingly, 18 of appellant’s 19 grounds for relief are clearly untimely

and do not require the trial court to issue findings of fact and conclusions of law. We

note that many of these grounds for relief were already considered and overruled in

appellant’s first petition for postconviction relief. See generally Jackson, 2006-Ohio-

2651.

        {¶34} Appellant’s 16th ground for postconviction relief is the only ground for

relief in which he does not attack the underlying conviction. Instead, appellant’s 16th

ground for relief attacks his August 14, 2012 resentencing. Appellant’s appeal of his

resentencing was filed directly in the Ohio Supreme Court on September 28, 2012. The

record was filed there on January 2, 2013. This second postconviction petition was filed

in the trial court on June 28, 2013. Accordingly, appellant’s petition for postconviction

relief is only timely as to appellant’s 16th ground for relief.

        {¶35} As such, appellant’s second assignment of error is without merit except as

to appellant’s 16th ground for relief, which was timely. However, even though the trial

court mistakenly identified appellant’s 16th ground for relief as untimely, the error was

harmless for reasons stated later in this opinion.

        {¶36} In his third assignment of error, appellant argues:




                                               8
        {¶37} “The trial court erred when it drafted its findings of fact and conclusions of

law.”

        {¶38} Specifically, appellant asserts that the trial court failed to make statutorily

required findings of fact and conclusions of law, by instead “entering conclusionary

statements of law without supporting the same with factual findings and citation to any

relevant case law.”

        {¶39} R.C. 2953.21(C) and (G) require a trial court to make and file findings of

fact and conclusions of law setting forth its findings on the issues presented and a

substantive basis for its disposition of each claim for relief advanced in the petition.

State v. Calhoun, 86 Ohio St.3d 279, 291 (1999). “[F]indings of fact and conclusions of

law are mandatory under R.C. 2953.21 if the trial court dismisses the petition.” State ex

rel. Carrion v. Harris, 40 Ohio St.3d 19, 19 (1988), citing State v. Lester, 41 Ohio St.2d

51 (1975), paragraph two of the syllabus.

        {¶40} The purpose of requiring findings of fact and conclusions of law is to

inform the petitioner of the basis for the court’s judgment and to facilitate meaningful

appellate review. Id., quoting State v. Mapson, 1 Ohio St.3d 217, 219 (1982). A trial

court “need not discuss every issue raised by appellant or engage in an elaborate and

lengthy discussion in its findings of fact and conclusions of law. The findings need only

be sufficiently comprehensive and pertinent to the issue to form a basis upon which the

evidence supports the conclusion.”         Calhoun, supra, at 291-292, citing State v.

Clemmons, 58 Ohio App.3d 45, 46 (2d Dist.1989).

        {¶41} A trial court is not required to issue findings of fact and conclusions of law,

however, when it dismisses a postconviction relief petition as untimely. State ex rel.




                                              9
James v. Coyne, 114 Ohio St.3d 45, 2007-Ohio-2716, ¶5; see, also, State v. Dewey,

11th Dist. Ashtabula No. 97-A-0077, 1998 Ohio App. LEXIS 4500, *6 (Sept. 25, 1998).

       {¶42} As discussed above, the trial court correctly held that 18 of appellant’s 19

grounds for relief were untimely. As such, the trial court was not required to make

findings of fact and conclusions of law for those untimely grounds for relief. Despite

this, the trial court still made sufficient findings of fact and conclusions for each of

appellant’s 19 grounds for relief, including those that the trial court correctly identified as

untimely. As the trial court’s findings of fact and conclusions of law are sufficiently

comprehensive to allow for appellate review, appellant’s third assignment of error is

without merit.

       {¶43} In his fifth assignment of error, appellant states:

       {¶44} “The trial court erred when it found that all nineteen grounds for relief were

barred [by] the doctrine of procedural default.”

       {¶45} As discussed above, only appellant’s 16th ground for relief is timely. As

appellant’s 18 other grounds for relief are untimely, we do not consider whether they are

also barred by the doctrine of procedural default. In overruling appellant’s 16th ground

for relief, the trial court stated, “[appellant] challenges the resentencing on August 14,

2012 because the trial judge refused to hear any additional evidence. The Court finds

this issue is barred by res judicata.”

       {¶46} We agree. Under the doctrine of res judicata, a defendant cannot raise an

issue in a postconviction petition if he or she raised or could have raised the issue at the

trial that resulted in that judgment of conviction or on an appeal from that judgment.

State v. Szefcyk, 77 Ohio St.3d 93, 96 (1996); State v. Perry, 10 Ohio St.2d 175 (1967),




                                              10
paragraph nine of the syllabus. Here, res judicata applies to appellant’s 16th ground for

relief because it raises an issue identical to that raised in appellant’s direct appeal

pending with the Ohio Supreme Court under Case No. 2012-1644. For this reason, as

appellant’s 16th ground for relief was barred by res judicata, the trial court’s incorrect

finding that appellant’s 16th ground for relief was untimely constitutes harmless error.

       {¶47} Accordingly, appellant’s fifth assignment of error is not well taken.

       {¶48} In his sixth and final assignment of error, appellant asserts:

       {¶49} “The trial court erred when it summarily dismissed [appellant’s] post-

conviction petition.”

       {¶50} Under this assignment of error, appellant argues that he presented

sufficient facts to be entitled to, at the very minimum, a hearing on his petition.

Appellant contends that the facts contained in his petition, if proven true, would render

his conviction void or voidable.

       {¶51} As discussed throughout this opinion, appellant’s petition was only timely

as to appellant’s 16th ground for relief.       Accordingly, analysis of appellant’s sixth

assignment of error only applies to his 16th ground for relief, which challenges the

“refus[al] [of the trial court] to consider any additional evidence at the resentencing.”

Appellant contends that this refusal violated his “rights to present to the jury all available

mitigating evidence; and to have the jury make an individualized determination with

respect to his sentence.”

       {¶52} “It is well-established that a petitioner is not automatically entitled to a

hearing. Before a hearing will be granted, a petitioner must establish that there are




                                             11
substantive grounds for relief.”       Jackson, 2006-Ohio-2651, at ¶85, citing R.C.

2953.21(C) and Calhoun, supra, at 282-283.

       {¶53} In this case, there was no substantive ground for relief under appellant’s

16th ground for relief.    As discussed above, appellant is currently challenging his

resentencing at the Supreme Court.       As such, the trial court correctly applied res

judicata to this ground for relief. Accordingly, appellant’s sixth assignment of error is

without merit.

       {¶54} As appellant’s six assignments of error are without merit, the judgment of

the Trumbull County Court of Common Pleas dismissing appellant’s postconviction

petition is hereby affirmed.



DIANE V. GRENDELL, J., concurs,

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.


                                ____________________


COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

       {¶55} I respectfully dissent.

       {¶56} Appellant appeals the trial court’s September 27, 2013 judgment

dismissing his post-conviction petition. This case involves the same facts and similar

procedural history as appellant’s other appeal before us, Case No. 2008-T-0077.

       {¶57} The issues and relief sought in this case concern appellant’s death

sentence and his right to a fair trial. The issues here are mainly the same as those

raised by appellant in his second direct appeal currently pending before the Supreme




                                           12
Court of Ohio, Case No. 2012-1644, as well as his other appeal before this court, Case

No. 2008-T-0077, (from the trial court’s July 16, 2008 judgment overruling his motion for

new trial.)

       {¶58} Appellant’s issues are also mainly the same as those in the case of his co-

defendant, Donna Roberts, wherein the Supreme Court of Ohio vacated her death

sentence for the second time and remanded the case again for resentencing. State v.

Roberts, 137 Ohio St.3d 230, 2013-Ohio-4580.2

       {¶59} For the reasons discussed below, I believe this appeal should be

dismissed.

       {¶60} Procedural Background

       {¶61} At the outset, this writer notes that appellant and Roberts have had

numerous appeals, which have moved along at different speeds throughout our justice

system, as a result of complicated procedural and fact patterns and errors in the trial

court that violated their constitutional rights.

       {¶62} On December 28, 2001, appellant was indicted on various charges,

including aggravated murder, for the shooting death of Robert Fingerhut. At the time of

his death, Fingerhut was residing with his former wife, Roberts. Roberts, who had an

affair with appellant, was also charged with murder for her role in Fingerhut’s death.

       {¶63} At his arraignment, appellant pleaded not guilty. He later filed a motion to

suppress. Following a hearing, the trial court filed findings of fact and conclusions of

law denying appellant’s motion.         It was later determined that the Trumbull County




2. Pursuant to the Supreme Court’s remand, on April 30, 2014, Trumbull County Court of Common Pleas
Judge Ronald Rice resentenced Roberts to the death penalty.


                                                13
prosecutor’s office drafted the trial court’s findings of fact and conclusions of law

denying appellant’s motion to suppress.

       {¶64} A jury trial commenced on October 8, 2002 before the late Judge John M.

Stuard.3     On November 12, 2002, appellant was found guilty of two counts of

aggravated murder, one count of aggravated burglary, and one count of aggravated

robbery. Under both of the aggravated murder counts, the jury recommended the death

penalty and Judge Stuard concluded the death penalty was appropriate.4 In addition,

the court imposed separate sentences on the charges of aggravated burglary,

aggravated robbery, and the merged firearm specifications.

       {¶65} Appellant’s Three Pending Cases

       {¶66} Throughout the following years, appellant and Roberts have had a series

of multiple direct and post-conviction appeals. As stated, appellant has three appeals

currently pending, one before the Supreme Court of Ohio and two before this court:

       {¶67} (1) Appellant’s second direct appeal before the Supreme Court of Ohio,

Case No. 2012-1644, from the August 2012 resentencing hearing before Judge Stuard;

       {¶68} (2) Appellant’s other appeal before this court, Case No. 2008-T-0077, from

the trial court’s July 16, 2008 judgment overruling his motion for new trial (on remand

from the Supreme Court of Ohio in State v. Jackson, 135 Ohio St.3d 1455, 2013-Ohio-

2285); and




3. Judge Stuard was a fine jurist committed to public service. He passed away on February 7, 2013,
shortly after his retirement from the bench. Judge Stuard was replaced by Judge Ronald Rice.

4. The Trumbull County Grand Jury found appellant’s co-defendant, Roberts, guilty and she was also
sentenced to death.


                                               14
      {¶69} (3) Appellant’s instant appeal, Case No. 2013-T-0103, from the trial court’s

September 27, 2013 judgment dismissing his post-conviction petition in which he

challenged, inter alia, his resentencing by Judge Stuard and his death sentence.

      {¶70} This writer notes again that the issues in appellant’s direct appeal with the

Supreme Court of Ohio and both appeals before this court concern appellant’s death

sentence and his right to a fair trial pursuant to the United States Constitution. The

relief sought by appellant is that he either be granted a new trial or that he be

resentenced. I believe in appellant’s other appeal before this court, Case No. 2008-T-

0077, that his sentence should be vacated and remanded for resentencing. Thus, for

the reasons that follow, I believe the appealed judgment in this case is no longer a final

appealable order at this time due to my position in Case No. 2008-T-0077.

      {¶71} Pleading At Issue In The Instant Appeal:

      {¶72} Petition for Post-conviction Relief

      {¶73} On June 28, 2013, appellant filed the instant post-conviction petition,

challenging, inter alia, his resentencing by Judge Stuard and his death sentence.

Specifically, appellant presented the following 19 grounds for relief: (1) appellant

challenged the post-conviction procedures under Ohio law in general, claiming that they

violate state and federal constitutions; (2) appellant claimed his conviction and sentence

are void or voidable because the Trumbull County prosecutor employed his discretion in

capital cases in a racially discriminatory manner; (3) appellant challenged the racial

component of the venire for the grand jury; (4) appellant claimed the foreperson of the

grand jury may have been chosen in a racially discriminatory manner; (5) appellant

challenged the admission of his statements following a hearing on a motion to suppress;




                                           15
(6) appellant challenged the judiciary who presided over the motion to suppress his

statements; (7) appellant claimed the Trumbull County prosecutor’s office failed to

provide him with exculpatory evidence; (8) appellant attacked the trial court’s method of

handling a breakdown in communication between him and his trial counsel; (9)

appellant claimed he was denied a fair and impartial jury and equal protection because

there was an underrepresentation of African Americans in the jury venire; (10) appellant

asserted he received ineffective assistance of counsel during the pre-trial stage of this

matter; (11) appellant asserted he received ineffective assistance of counsel during the

trial phase of this case; (12) appellant claimed he was denied effective assistance of

counsel during the investigation of the penalty phase; (13) appellant stated he was

denied effective assistance of counsel during the mitigation stage; (14) appellant stated

he was denied effective assistance of counsel and expert assistance; (15) appellant

challenged his death sentence claiming the prosecution relied on inconsistent theories

with respect to his prosecution and that of Roberts; (16) appellant challenged his August

14, 2012 resentencing before Judge Stuard because he refused to hear any additional

evidence; (17) appellant challenged his death sentence in general as being

unconstitutional; (18) appellant challenged his death sentence as violating the equal

protection rights afforded to him under the constitution; and (19) appellant presented a

cumulative argument for the due process errors asserted within his petition.5

        {¶74} The Instant Appealed Judgment

        {¶75} On September 27, 2013, the trial court dismissed appellant’s post-

conviction petition without a hearing as untimely, and found each of his grounds for


5. The state filed a motion to dismiss pursuant to R.C. 2953.21(D). Appellant filed a response.



                                                   16
relief barred by res judicata as well as not supported by sufficient evidence.6 Appellant

filed a timely appeal with this court.

        {¶76} Assignments of Error in the Instant Appeal

        {¶77} Presently before us in this appeal are six assignments of error:

        {¶78} “[1.] The Trial Court Erred When It Dismissed Jackson’s Post-conviction

Petition Without Reviewing the Entire Record.

        {¶79} “[2.] The Trial Court Erred When It Determined That Jackson’s Post-

Conviction Petition Was Barred By the Statute of Limitations.

        {¶80} “[3.] The Trial Court Erred When It Drafted its Findings of Fact and

Conclusions of Law.

        {¶81} “[4.] The Trial Court Erred When It Denied Appellant’s Petition Without

Affording Him Discovery.

        {¶82} “[5.] The Trial Court Erred When It Found That All Nineteen Grounds for

Relief Were Barred [by] the Doctrine of Procedural Default.

        {¶83} “[6.] The Trial Court Erred When It Summarily Dismissed Jackson’s Post-

Conviction Petition.”

        {¶84} This court specifically held in the death penalty case involving appellant’s

co-defendant, that vacation of a sentence and a remand for resentencing has the effect




6. In his September 27, 2013 entry, Judge Rice indicated that he had reviewed the record prior to
rendering his decision to dismiss appellant’s post-conviction petition. I note, however, that the entire
court record was with the Supreme Court of Ohio, which is currently reviewing appellant’s second direct
appeal, Case No. 2012-1644. In fact, on October 22, 2013, in his other appeal before this court, Case
No. 2008-T-0077, appellant filed a “Motion to Supplement the Record.” A review of the record revealed
that three pleadings (Docket Nos. 331, 389 and 394) and 17 volumes of transcripts were not contained in
the record before this court. Thus, on October 29, 2013, this court granted appellant’s motion and,
pursuant to S.Ct.Prac.R. 11.04(D)(1) and (2), instructed the Trumbull County Clerk of Courts to provide
this court with certified copies of the foregoing pleadings and transcripts that were previously provided to
the Ohio Supreme Court. During oral arguments in this case, the state conceded that Judge Rice had an


                                                    17
of nullifying proceedings in regard to post-conviction petitions. State v. Roberts, 11th

Dist. Trumbull No. 2005-T-0034, 2007-Ohio-5616, ¶7. This court went on to state the

following:

       {¶85} “As an aside, * * * it is feasible that the new proceedings before the trial

court could lead to additional constitutional claims which could only be raised in a post-

conviction petition. Therefore, if we were to allow the appeal to proceed, appellant

might be required to file a new post-conviction petition which, in turn, could lead to a

second appeal. In light of the possibility of needless confusion, logic dictates that the

interests of appellant and appellee would be better served if the post-conviction process

was started anew once the trial court has rendered a new final judgment in the criminal

proceeding.” Id. at ¶8.

       {¶86} In this case, each of appellant’s assignments of error focuses on his post-

conviction petition in which he challenged, inter alia, his resentencing by Judge Stuard

and his death sentence. In his appellate brief, appellant requests that he either be

granted a new trial or that he be resentenced again. In support, appellant relies on the

latest decision in Roberts, 137 Ohio St.3d 230, 2013-Ohio-4580, wherein the Supreme

Court of Ohio vacated Roberts’ death sentence for the second time and remanded the

case again for resentencing. The fact pattern in this case is factually the same as that

in the matter involving Roberts. See State v. Jackson, 190 Ohio App.3d 319, 2010-

Ohio-5054, ¶29 (11th Dist.2010).           The record establishes that the same improper

drafting procedures involving the sentencing entries which occurred in Roberts’ case

took place in this case as well.


obligation to have and review the entire record. Based on the foregoing, it appears Judge Rice ruled on
appellant’s post-conviction petition in an uninformed and incomplete manner.


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       {¶87} It is our duty to uphold the integrity of the judicial process in this death

penalty case, and to ensure that appellant’s constitutional rights are protected.

Because I believe appellant’s sentence should be vacated and remanded for

resentencing in his other appeal before this court, Case No. 2008-T-0077, I believe the

instant appeal is no longer properly before us, making the appealed judgment not a final

appealable order at this time. Stated differently, since I believe a proper final judgment

as to appellant’s post-conviction petition does not exist at this time, this court lacks the

requisite jurisdiction to go forward with this appeal. See Roberts, 2007-Ohio-5616, at

¶9.

       {¶88} Accordingly, because this appeal should be sua sponte dismissed for lack

of jurisdiction, I respectfully dissent.




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