[Cite as State v. Staples, 2014-Ohio-2556.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      GREENE COUNTY

 STATE OF OHIO                                        :
                                                      :
          Plaintiff-Appellee                          :     Appellate Case No.   2013-CA-52
                                                      :
 v.                                                   :     Trial Court Case No. 2012-CR-270
                                                      :
 JAMES P. STAPLES                                     :
                                                      :     (Criminal Appeal from
          Defendant-Appellant                         :     (Common Pleas Court)
                                                      :

                                              ...........

                                              OPINION

                                Rendered on the 13th day of June, 2014.

                                              ...........

STEPHANIE R. HAYDEN, Atty. Reg. No. 0082881, Assistant Greene County Prosecutor, 61
Greene Street, Xenia, Ohio 45385
       Attorney for Plaintiff-Appellee

JAMES P. STAPLES, Inmate No. 668-098, Chillicothe Correctional Institution, P.O. Box 5500,
Chillicothe , Ohio 45601
        Defendant-Appellant-Pro Se

                                              .............

WELBAUM, J.

        {¶ 1}       Defendant-appellant, James P. Staples, appeals pro se from the decision of
[Cite as State v. Staples, 2014-Ohio-2556.]
the Greene County Court of Common Pleas denying his three petitions for postconviction relief

following his conviction for four counts of rape. For the reasons outlined below, the judgment

of the trial court will be affirmed.



                                    Facts and Course of Proceedings

        {¶ 2}     On January 13, 2012, Staples was indicted in Case No. 2012 CR 0016 on eight

counts of rape, as well as eight counts of gross sexual imposition. The charges arose from

allegations of Staples performing oral sex on two minor boys between January 2006 and

December 2011. One of the boys was nine years old when the abuse was discovered; the age of

the second boy is not in the record. In addition to performing multiple acts of oral sex, Staples

also allowed the nine-year-old boy to touch his penis.

        {¶ 3}     Staples initially pled not guilty to all the counts; however, Staples later changed

his plea to not guilty by reason of insanity.       Staples then filed a motion to determine his

competency to stand trial and was ordered to undergo a psychological evaluation. Following this

evaluation, and based on the information contained in his psychological report, the trial court

concluded that Staples was competent to stand trial.

        {¶ 4}     After the competency determination, a plea agreement was reached, wherein

Staples agreed to plead guilty to four counts of rape in violation of R.C. 2907.02(A)(1)(b), all

first degree felonies. In exchange for Staples’s guilty plea, the State dismissed the indictment in

Case No. 2012 CR 0016, and filed a bill of information in Case No. 2012 CR 0270 charging

Staples with the agreed-upon rape counts. Staples then waived his right to have the case

presented to a grand jury and pled guilty to all four counts. After Staples pled guilty, the trial

court ordered him to undergo a probation and risk of sexual re-offense evaluation.
[Cite as State v. Staples, 2014-Ohio-2556.]
        {¶ 5}     On August 31, 2012, the trial court sentenced Staples to ten years in prison for

each of the first three rape counts, and nine years in prison for the fourth. The sentences were

ordered to run consecutively for a total prison term of 39 years. Staples did not appeal from his

conviction or sentence.

        {¶ 6}     Several months later, on June 19, 2013, Staples filed a motion to differentiate the

multiple rape charges. In the motion, Staples argued that the bill of information charging him

with the four rape counts violated his rights to due process and protection from double jeopardy,

because each charge was described using identical language. In addition, Staples argued that his

trial counsel was ineffective in failing to file a pretrial motion objecting to the alleged defective

bill of information.       Staples also questioned the accuracy of his psychological evaluation,

claiming that he suffers from a mental disorder due to a traumatic childhood involving sexual

abuse, and from taking medications for various physical and emotional ailments as an adult. As

a result of his alleged mental issues, Staples claimed that he “may” not have made his guilty plea,

knowingly, intelligently, and voluntarily.

        {¶ 7}     The same day he filed the motion to differentiate, Staples also filed a motion for

findings of fact and conclusions of law. In that motion, Staples merely requested the trial court

to issue findings of facts and conclusions of law on the arguments raised in his motion to

differentiate. A month later, on July 15, 2013, Staples filed a motion for default judgment

arguing that he was entitled to judgment on the motion to differentiate given that the State failed

to file a response.

        {¶ 8}     On August 22, 2013, the trial court denied all three of Staples’s motions. In so

holding, the court found that it lacked jurisdiction to rule on Staples’s motion to differentiate and

motion for findings of fact and conclusions of law given their untimeliness, and that his motion
                                                                                                  4


for default judgment was moot. Staples now appeals from the trial court’s decision denying his

three postconviction motions, raising five assignments of error.



                                   Assignment of Error No. I

       {¶ 9}    Staples’s First Assignment of Error is as follows:

       THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT CLAIMED THAT

       IT LACKED THE JURISDICTION TO HEAR THE THREE MOTIONS THAT

       MR. STAPLES FILED WITH IT, WHICH IS A DIRECT VIOLATION OF MR.

       STAPLES[’S] DUE PROCESS AND EQUAL PROTECTION RIGHTS,

       PURSUANT        TO     SECTION      2,   16,   ARTICLE        I,   OF   THE   OHIO

       CONSTITUTION; AND THE FIFTH AND FOURTEENTH AMENDMENTS,

       OF THE UNITED STATES CONSTITUTION.

       {¶ 10} Under his First Assignment of Error, Staples argues that the trial court erred in

denying his motion to differentiate, motion for findings of fact and conclusions of law, and

motion for default judgment for lack of jurisdiction. In support of this claim, Staples argues that

his constitutional rights to due process and equal protection under the law were violated.

       {¶ 11} While Staples’s three motions are not denominated as petitions for

postconviction relief under R.C. 2953.21, we will address them as such in our opinion. It is well

established that “ ‘[c]ourts may recast irregular motions into whatever category necessary to

identify and establish the criteria by which the motion should be judged.’ ” State v. Caldwell, 2d

Dist. Montgomery No. 24333, 2012-Ohio-1091, ¶ 3, quoting State v. Schlee, 117 Ohio St.3d 153,

2008-Ohio-545, 882 N.E.2d 431, ¶ 12. (Other citations omitted.)
                                                                                                 5


        {¶ 12} Petitions for postconviction relief are governed by R.C. 2953.21(A)(1)(a), which

provides, in pertinent part, that:

        Any person who has been convicted of a criminal offense * * * and 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 petition in the court that imposed sentence, 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. The petitioner may file

        a supporting affidavit and other documentary evidence in support of the claim for

        relief.

        {¶ 13} R.C. 2953.21 also sets forth certain time constraints for filing petitions for

postconviction relief. Pursuant to section (A)(2) of the statute, if a defendant does not directly

appeal his judgment of conviction, “the petition shall be filed no later than one hundred eighty

days after the expiration of the time for filing the appeal.” R.C. 2953.21(A)(2). “The trial court

lacks jurisdiction to consider an untimely petition for postconviction relief, unless the

untimeliness is excused under R.C. 2953.23(A)(1).” State v. Buennagel, 2d Dist. Greene No.

2010 CA 74, 2011-Ohio-3413, ¶ 25, citing State v. West, 2d Dist. Clark No. 08 CA 102,

2009-Ohio-7057, ¶ 7. Pursuant to R.C. 2953.23(A)(1)(a), a defendant may file an untimely

petition for postconviction relief if: (1) he was unavoidably prevented from discovering the facts

upon which he relies to present his claim; or (2) the United States Supreme Court recognizes a

new right that applies retroactively to his situation. Id. “ ‘The phrase “unavoidably prevented”

means that a defendant was unaware of those facts and was unable to learn of them through
                                                                                                    6


reasonable diligence.’ ”     Id., quoting State v. McDonald, 6th Dist. Erie No. E-04-009,

2005-Ohio-798, ¶ 19. The defendant must also show by clear and convincing evidence that, if

not for the constitutional error from which he suffered, no reasonable factfinder would have

found him guilty. R.C. 2953.23(A)(1)(b).

       {¶ 14} In this case, Staples was convicted and sentenced on August 31, 2012; therefore,

according to App.R. 4(A), he had until September 30, 2012 to file a direct appeal from his

conviction. Since Staples failed to file a direct appeal, he had 180 days from September 30,

2012 to file a petition for postconviction relief, which gave him until March 29, 2013 to do so.

Staples, however, did not file any of his postconviction motions prior to the March 29, 2013

deadline. Rather, Staples’s motions were filed well after the deadline on June 19, 2013 and July

15, 2013. Therefore, Staples’s motions were clearly untimely.

       {¶ 15} Furthermore, we find that Staples was not unavoidably prevented from

discovering the facts underlying the claims in his motions, and he did not argue as much in his

appellate brief. As noted above, Staples’s motions all centered around the following three

claims: (1) the bill of information contained defective language; (2) his counsel provided

ineffective assistance in failing to object to the alleged defective bill; and (3) his psychological

evaluation was inaccurate, thus rendering his guilty plea invalid. Staples, however, was aware of

all the facts underlying the foregoing claims during his plea and sentencing hearings.

       {¶ 16} For example, the record clearly establishes that Staples knew of the charges in the

bill of information, because he testified at the plea hearing that he and his trial counsel discussed

the nature of the charges against him and that he understood the charges to which he was

pleading guilty. Plea Hearing Trans. (June 13, 2013), p. 6, ln. 21; p. 7, ln. 1-10. His trial
                                                                                                   7


counsel also testified that he reviewed the bill of information with Staples. Id. at p. 10, ln.

20-25; p. 11, ln. 1-7. In addition, Staples was well aware that his trial counsel had not raised any

objection to the bill of information, as Staples was present at the plea and sentencing hearings

when no such objection was mentioned or raised. Staples also knew of the trial court’s findings

related to his competency to stand trial, and yet he raised no objections to the psychological

evaluation on which the court based its findings. Furthermore, before this case was even filed,

Staples was surely aware of the personal circumstances on which he based his alleged mental

disorder, as they concerned his own childhood and his past physical and emotional ailments.

       {¶ 17} For the foregoing reasons, it is clear that Staples was not unavoidably prevented

from discovering the facts underlying the claims in his motions. Moreover, the United States

Supreme Court has not recognized a new right that applies retroactively to Staples’s situation.

As a result, the exception for allowing an untimely petition for postconviction relief in R.C.

2953.23(A)(1) does not apply here. Accordingly, we find that the trial court lacked jurisdiction

to rule on Staples’s three motions due to their untimeliness, and that the court correctly denied

the motions on that basis.

       {¶ 18} Staples’s First Assignment of Error is overruled.



                               Assignment of Error Nos. II and IV

       {¶ 19} For purposes of convenience, we will address Staples’s Second and Fourth

Assignments of Error together. They are as follows:

       II.     THE           PROSECUTION         COMMITTED             PROSECUTORIAL

       MISCONDUCT WHEN IT REQUESTED MR. STAPLES TO PLEAD GUILTY
                                                                                              8


       TO A MULTIPLICITOUS [sic] BILL OF INFORMATION WHICH HAD

       ABSOLUTELY NO DIFFERENTIATION AMONG THE FOUR CHARGES

       THAT MR. STAPLES PLEAD GUILTY TOO, [sic] WHICH IS A DIRECT

       VIOLATION OF MR. STAPLES[’S] DUE PROCESS RIGHTS, HIS EQUAL

       PROTECTION RIGHTS, HIS DOUBLE JEOPARDY RIGHTS, AND HIS

       RIGHT TO BE INFORMED OF THE NATURE OF THE CHARGES,

       PURSUANT TO SECTION 2, 10, 16, ARTICLE I, OF THE OHIO

       CONSTITUTION;        AND     THE        FIFTH,    SIXTH    AND       FOURTEENTH

       AMENDMENTS, OF THE UNITED STATES CONSTITUTION.



       IV.    THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT

       CONVICTED MR. STAPLES WITHOUT RENDERING THE PROPER

       DETERMINATION ON WHETHER THE UNDIFFERENTIATED CHARGES

       THAT MR. STAPLES PLED GUILTY TOO, [sic] ARE ALLIED OFFENSES

       PURSUANT TO O.R.C. §2941.25(A), WHICH IS A DIRECT VIOLATION OF

       MR. STAPLES[’S] DUE PROCESS AND EQUAL PROTECTION RIGHTS,

       PURSUANT       TO    SECTION       2,    16,     ARTICLE   I,   OF    THE   OHIO

       CONSTITUTION; AND THE FIFTH AND FOURTEENTH AMENDMENTS,

       OF THE UNITED STATES CONSTITUTION.

       {¶ 20} Under his Second Assignment of Error, Staples argues that the State committed

prosecutorial misconduct when it prosecuted him under an alleged defective bill of information.

In his Fourth Assignment of Error, Staples argues that his four rape convictions are allied
                                                                                                      9


offenses of similar import and that the trial court erred in failing to merge them at sentencing.

Staples did not raise either of these arguments before the trial court in his postconviction

motions.

         {¶ 21} Generally, an argument may not be raised for the first time on appeal. State v.

Wilson, 2d Dist. Montgomery No. 22001, 2007-Ohio-6581, ¶ 12, citing State ex rel. Gutierrez v.

Trumbull Cty. Bd. of Elections, 65 Ohio St.3d 175, 177, 602 N.E.2d 622 (1992). However, a

defendant waives all but plain error if he fails to raise the issue of allied offenses before the trial

court. State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547, ¶ 52, citing State

v. Williams, 51 Ohio St.2d 112, 364 N.E.2d 1364, paragraph one of the syllabus. (Other citation

omitted.) In State v. Wright, 2d Dist. Montgomery No. 24276, 2011-Ohio-4874, ¶ 55, we

recognized that imposing multiple sentences for allied offenses of similar import constitutes plain

error.

         {¶ 22} “When determining whether two offenses are allied offenses of similar import

subject to merger under R.C. 2941.25, the conduct of the accused must be considered.” State v.

Johnson, 128 Ohio St.3d 153, 2010–Ohio–6314, 942 N.E.2d 1061, ¶ 44. In Johnson, the

Supreme Court of Ohio set forth a two-part framework for determining whether offenses should

merge.     The first consideration “is whether it is possible to commit one offense and commit the

other with the same conduct * * *.” (Citation omitted.) Johnson at ¶ 48.              “If the multiple

offenses can be committed by the same conduct, then the court must determine whether the

offenses were committed by the same conduct, i.e., ‘a single act, committed with a single state of

mind.’ ” Id. at ¶ 49, quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d

149, ¶ 50. “If the answer to both questions is yes, then the offenses are allied offenses of similar
                                                                                                    10


import and will be merged.” Id. at ¶ 50.

        {¶ 23} In this case, Staples’s PSI report states that he admitted to performing oral sex on

the nine-year-old boy four times, while performing oral sex on the other boy once. These were

separate acts committed between 2006 and 2011. Because Staples’s rape offenses did not arise

from a single act, his offenses are not allied offenses and are not subject to merger. Accordingly,

the trial court did not err in failing to merge the offenses.

        {¶ 24} Even if the trial court had committed plain error in failing to merge Staples’s

offenses, the final outcome of the proceedings would not have been any different given our

resolution of the First Assignment of Error–that Staples’s motions were untimely and the trial

court lacked jurisdiction to rule on them. This determination is dispositive of both the allied

offense and prosecutorial misconduct arguments. Moreover, in addition to untimeliness, we also

find that these arguments are barred from appellate review under the doctrine of res judicata

given that they could have been raised on direct appeal. State v. Parson, 2d Dist. Montgomery

No. 24641, 2012-Ohio-730, ¶ 10 (when an appellant does not raise the issue of merging allied

offenses in a timely direct appeal, the challenge is barred by the doctrine of res judicata); State v.

Brooks, 6th Dist. Lucas Nos. L-10-1258, L-10-1259, 2011-Ohio-5303, ¶ 17 (a claim of

prosecutorial misconduct arising from the State maintaining its prosecution under a defective

indictment could have been raised on direct appeal; therefore, res judicata bars consideration of

this claim on appeal).

        {¶ 25} For the foregoing reasons, Staples’s Second and Fourth Assignments of Error are

overruled.
[Cite as State v. Staples, 2014-Ohio-2556.]
                                   Assignment of Error Nos. III and V

        {¶ 26} For purposes of convenience, we will also address Staples’s Third and Fifth

Assignments of Error together. They are as follows.

        III.     MR. STAPLES[’S] RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL

        COUNSEL HAS BEEN VIOLATED WITH REGARDS TO HIS TRIAL

        COUNSELOR[’]S PERFORMANCE BEFORE, DURING AND AFTER HE

        ADVISED MR. STAPLES TO ACCEPT THE PROSECUTION[’]S PLEA

        OFFER, WHICH IS A DIRECT VIOLATION OF SECTION 10, ARTICLE I, OF

        THE OHIO CONSTITUTION; AND THE SIXTH AMENDMENT, OF THE

        UNITED STATES CONSTITUTION.



        V.       MR. STAPLES[’]S DUE PROCESS AND EQUAL PROTECTION

        RIGHTS PURSUANT TO SECTION 2, 16, ARTICLE I, OF THE OHIO

        CONSTITUTION, AND THE FIFTH AND FOURTEENTH AMENDMENTS

        OF THE UNITED STATES CONSTITUTION WERE VIOLATED, BECAUSE

        THE FORENSIC EVALUATIONS THAT WERE CONDUCTED ON MR.

        STAPLES BY THE EXAMINER AT THE FORENSIC PSYCHIATRY

        CENTER FOR WESTERN, OHIO, IN DAYTON, OHIO PURSUANT TO

        O.R.C. §2945.371(G)(3) AND (G)(4), RESULTED IN TWO ERRONEOUS

        EVALUATIONS.

        {¶ 27} Under his Third Assignment of Error, Staples argues that his trial counsel was

ineffective in: (1) failing to file a pretrial motion objecting to the allegedly defective bill of

information; (2) failing to timely provide him with his case file; and (3) failing to advise him of
                                                                                                  12


the information in his discovery packet and not reviewing the discovery with him. In his Fifth

Assignment of Error, Staples argues that his psychological evaluation was erroneous, as he

claims that he suffers from a mental disorder due to a traumatic childhood, and from taking

medications for various physical and emotional ailments. As a result of his alleged mental

issues, Staples claims that he “may” not have made a voluntary, knowing, and intelligent guilty

plea.

        {¶ 28} Staples’s arguments concerning his guilty plea and the alleged inaccuracy of his

psychological evaluation are barred by the doctrine of res judicata since those arguments could

have been raised in a direct appeal.       State v. Young, 2d Dist. Montgomery No. 25680,

2013-Ohio-5061, ¶ 12, citing State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967).

Staples, however, did not file a direct appeal from his conviction; therefore, the doctrine of res

judicata does not bar his ineffective assistance claim. See State v. Cooperrider, 4 Ohio St.3d

226, 228, 448 N.E.2d 452 (1983). “An exception to the res judicata bar applies where no direct

appeal was taken or, if an appeal was taken, the claim of incompetent counsel was not raised and

adjudicated on direct appeal.”         State v. Cline, 2d Dist. Champaign No. 08CA21,

2009-Ohio-7041, ¶ 13. “Under those circumstances, res judicata will not bar the adjudication of

an incompetent counsel claim in post-conviction proceedings.” Id., citing Cooperrider at 228.

        {¶ 29} Nevertheless, even though Staples’s ineffective assistance claim is not barred by

res judicata, our resolution of Staples’s First Assignment of Error is also dispositive here, as

Staples’s motions were untimely filed, thereby divesting the trial court of jurisdiction to consider

them. See, e.g., State v. Reese, 2d Dist. Montgomery No. 23410, 2009-Ohio-5874, ¶ 12-13.

Again, the record is clear that Staples was not unavoidably prevented from discovering the facts
                                                                                             13


underlying these claims, nor has the United States Supreme Court recognized a new right that

applies retroactively to Staples’s situation. Therefore, Staples’s motions were properly denied

by the trial court due to their untimeliness.

       {¶ 30} For the foregoing reasons, Staples’s Third and Fifth Assignments of Error are

overruled.



                                                Conclusion

       {¶ 31} Having overruled Staples’s five assignments of error, the judgment of the trial

court is affirmed.

                                            .............


FROELICH, P.J., and HALL, J.,        concur.



Copies mailed to:

Stephanie R. Hayden
James P. Staples
Hon. Stephen Wolaver
