[Cite as State v. Tate, 2017-Ohio-7311.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                        Hon. William B. Hoffman, J.
                                                  Hon. Earle E. Wise, Jr., J.
-vs-
                                                  Case No. 17CA19
LLOYD TATE

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Richland County Court of
                                               Common Pleas, Case No. 2012-CR-666D


JUDGMENT:                                      Affirmed

DATE OF JUDGMENT ENTRY:                        August 18, 2017

APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

GARY BISHOP                                    LLOYD TATE, PRO SE
Prosecuting Attorney                           Inmate #634-143
Richland County, Ohio                          Marion Correctional Inst.
                                               P.O. Box 57
By: JOSEPH C. SNYDER                           Marion, Ohio 43301
Assistant Prosecuting Attorney
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 17CA19                                                             2

Hoffman, J.



       {¶1}   Defendant-appellant Lloyd L. Tate appeals the January 23, 2017 Judgment

Entry entered by the Richland County Court of Common Pleas denying his motion entitled

“Direct Attack Statutorily Violations.” Plaintiff-appellee is the state of Ohio.

                          STATEMENT OF PROCEDURAL HISTORY1

       {¶2}   On October 9, 2012, the Richland County Grand Jury indicted Appellant

was indicted on one count of attempted murder, a felony of the first degree; and two

counts of felonious assault, one for causing serious physical harm and one for use of a

deadly weapon, both felonies of the second degree. A repeat violent offender

specification and a vehicle forfeiture specification were attached to each count of the

indictment.

       {¶3}   Following a jury trial, Appellant was found guilty on all three counts in the

indictment. The trial court then heard arguments regarding the repeat violent offender

specification. The state of Ohio offered Appellant’s conviction for robbery from 1989, in

Richland County Case No. 89CR165. The trial court found Appellant guilty of the repeat

violent offender specifications. The trial court also granted forfeiture of Appellant's truck.

       {¶4}   The trial court sentenced Appellant to eleven (11) years in prison on the

charge of attempted murder and two (2) years on the repeat violent offender specification.

The felonious assault charges were found to be allied offenses to the attempted murder

charge.




1
 A statement of facts underlying appellant's original convictions is unnecessary for our
disposition of this appeal.
Richland County, Case No. 17CA19                                                            3


       {¶5}   On January 25, 2013, Appellant filed a notice of appeal to this Court of his

convictions and sentence. The transcript was filed on April 9, 2013. Appellant filed his

brief with this Court on June 10, 2013, arguing, in part, the trial court erred in finding him

to be a repeat violent offender and sentencing him to two years consecutive to the

maximum sentence on the attempted murder charge.2

       {¶6}   On November 21, 2013, in State v. Tate, 5th Dist. Richland No. 13 CA 5,

2013–Ohio–5150, this Court affirmed Appellant's convictions, sentence, and repeat

violent offender specification finding.

       {¶7}   On August 29, 2014, Appellant filed a motion for delayed appeal with the

Ohio Supreme Court. The motion was denied on October 22, 2014 in State v. Tate, 140

Ohio St.3d 1465, 2014–Ohio–4629, 18 N.E.2d 445.

       {¶8}   On March 23, 2015, Appellant filed with this Court a motion to reopen his

direct appeal, which was denied on May 19, 2015. Appellant appealed the denial to the

Ohio Supreme Court. The Ohio Supreme Court declined to accept jurisdiction of

Appellant's appeal on August 26, 2015.

       {¶9}   Appellant filed a motion to correct sentence on September 18, 2014 with

the trial court. The state of Ohio filed a response. The trial court issued a judgment entry

denying appellant's motion on April 9, 2015. The trial court found the motion to correct

sentence to be a petition for post-conviction relief pursuant to R.C. 2953.21. The trial court

first found the motion to be untimely, as the petition was not filed until September 18,



2
  In State v. Tate, Richland App. No. 13CA5, 2013-Ohio-5150, Appellant assigned as
error, “II. It was an error to sentence Tate to an additional two years in excess of statutory
maximum sentence on the repeat violent offender specification.” Appellant argued the
trial court failed to make a finding Appellant caused or threatened to cause serious
physical harm in his 1989 robbery conviction. This Court disagreed.
Richland County, Case No. 17CA19                                                          4


2014, and a timely post-conviction relief petition had to be filed by April 9, 2014.

Additionally, the trial court found res judicata applied because this Court had previously

addressed and overruled Appellant's argument.

      {¶10} Appellant filed an appeal from the trial court’s April 29, 2015 denial of his

motion to correct sentence in State v. Tate, Richland App. No. 15-40, 2015-Ohio-3859.

This Court held,



             Appellant argues that he could not be sentenced to a repeat violent

      offender specification under R.C. 2929.14(B)(2)(b) because his prior

      conviction was not within the last twenty years. Further, that the prior

      offense of robbery was not proven to be a prior offense of violence. These

      matters were all contained in the trial record and thus appellant cannot show

      that he was unavoidably prevented from the discovery of the facts upon

      which he relies on for relief or that this is newly-discovered evidence.

      Appellant does not set forth any argument in his brief as to the delay in filing,

      why he meets the exception requirements contained in R.C. 2953.23(A)(1)

      or (A)(2), or how the petition otherwise complies with R.C. 2953.23(A)(1) or

      (A)(2). As such, appellant has failed to meet his burden under R.C.

      2953.23(A)(1) or (A)(2) to file an untimely petition for post-conviction relief.

             In addition, any errors as to these issues either were or could have

      been raised on direct appeal and are therefore barred under the doctrine of

      res judicata. “Under the doctrine of res judicata, a final judgment of

      conviction bars the defendant from raising and litigating in any proceeding,
Richland County, Case No. 17CA19                                                         5


      except an appeal from that judgment, any defense or any claimed lack of

      due process that the defendant raised or could have raised at the trial which

      resulted in that judgment of conviction or on appeal from that judgment.”

      State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967). Conversely,

      issues properly raised in a post-conviction petition are those that could not

      have been raised on direct appeal because the evidence supporting the

      issues is outside the record. State v. Millanovich, 42 Ohio St.2d 46, 325

      N.E.2d 540 (1975). Appellant's arguments do not raise any issues that are

      dependent upon evidence outside the record. Further, in appellant's direct

      appeal, this Court found that the trial court did not err in finding him to be a

      repeat violent offender and sentencing him to two years consecutive to the

      maximum sentence on the attempted murder charge. Accordingly, the

      arguments appellant makes either were or could have been raised and

      argued on direct appeal.



      {¶11} The Supreme Court declined jurisdiction on December 2, 2015.

      {¶12} On January 20, 2017, Appellant filed a motion in the trial court entitled,

“Direct Attack Statutorily Violations, (Jury and RVO) (Not A Post-Conviction Motion.)” Via

Judgment Entry entered January 31, 2017, the trial court overruled Appellant’s motion. It

is from that judgment entry Appellant prosecutes this appeal, assigning as error:



             I. THE TRIAL COURT ABUSED ITS DISCRETION, AND

      DISREGARDED STATUTORIAL MANDATES, WHEN IT IMPOSED A
Richland County, Case No. 17CA19                                                            6


       JURY CHANGE CONTRARY TO LAW, O.R.C. 2945.24, 2945.29, 2313,

       2313.13 AND CRIMINAL RULE -24(G).

               II. THE TRIAL COURT ABUSED ITS DISCRETION AND

       COMMITTED A STATUTORIAL VIOLATION WHEN IT SENTENCED

       TATE AS A REPEAT VIOLENT OFFENDER; CONTRARY TO LAW

       WITHOUT DETERMINING ELEMENT OF HARM, O.R.C. 2929.01(DD),

       (2), (a), (i).



                                                 I.

       {¶13} In the first assignment of error, Appellant maintains the trial court erred in

releasing a juror as the alternate.

       {¶14} Upon review, the argument raised by Appellant either was raised or was

capable of being raised on direct appeal in State v. Tate, 5th Dist. Richland No. 13 CA 5,

2013–Ohio–5150; therefore, the argument is barred by res judicata.

       {¶15} Appellant’s first assignment of error is overruled.

                                                 II.

       {¶16} As set forth above, Appellant raised this issue assigned as his Second

Assignment of Error on direct appeal in State v. Tate, 2013-Ohio-5150, and on appeal of

his converted motion for post-conviction relief in or on appeal of the denial of his converted

motion for post-conviction relief in State v. Tate, Richland App. No. 15-40, 2015-Ohio-

3859. We do not find the sentence imposed by the trial court illegal; therefore, the

sentence is not void and res judicata applies.

       {¶17} Appellant’s second assignment of error is overruled.
Richland County, Case No. 17CA19                                           7


      {¶18} The judgment of the Richland County Court of Common Pleas is

affirmed.

By: Hoffman, J.

Delaney, P.J. and

Wise, Earle, J. concur
