[Cite as State v. Morris, 2014-Ohio-4907.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                        Hon. John W. Wise, J.
                                                  Hon. Craig R. Baldwin, J.
-vs-
                                                  Case No. 2014 CA 00047
FRANK MORRIS, JR.

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Massillon
                                               Municipal Court, Case No. 1996 CRB 2115


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         November 3, 2014



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

PERICLES STERGIOS                              RICHARD DRAKE
MASSILLON CITY PROSECUTOR                      303 Courtyard Centre
One James Duncan Plaza SE                      116 Cleveland Avenue NW
Massillon, Ohio 44646                          Canton, Ohio 44702
Stark County, Case No. 2014 CA 00047                                          2

Wise, J.

        {¶1} Appellant Frank Morris appeals from the February 12, 2014, Judgment

Entry entered in the Massillon Municipal Court overruling his motion for relief from

judgment.

        {¶2} Appellee did not file a brief in this matter

                            STATEMENT OF THE FACTS AND CASE

        {¶3} On October 21, 1006, Appellant Frank Morris was arraigned on charges of

domestic violence. A temporary protection order was imposed, and Appellant signed for

same.

        {¶4} On November 7, 1996, Appellant was convicted of domestic violence

subsequent to a no-contest plea. Appellant was represented by counsel.

        {¶5} On October 25, 2004, Appellant, through different counsel, filed a Motion

to Withdraw Plea. In said motion, Appellant argued he was not made aware that he

would be prohibited from owning or possessing a firearm, and that such affected his

ability to obtain employment.

        {¶6} On May 20, 2005, the trial court denied Appellant’s motion to withdraw

plea.

        {¶7} On May 22, 2005, Appellant filed a Motion to Reconsider through a third

attorney. The attorney later withdrew as counsel.

        {¶8} On November 5, 2013, Appellant filed the current Motion for Relief from

Judgment.

        {¶9} On January 27, 2014, an oral hearing was held on Appellant’s motion, and

affidavits were submitted in support of Appellant’s motion.
Stark County, Case No. 2014 CA 00047                                                     3


       {¶10} By Judgment Entry dated February 12, 2014, the trial court denied

Appellant’s motion for relief from judgment, finding:

       {¶11} “The Defendant failed to meet any of the requirements for post-conviction

relief pursuant to O.R.C. Sec. 2953.21. It was not timely filed and all the issues were

previously ruled on by Judge Kettler in May of 2005.”

       {¶12} Appellant now appeals, raising the following Assignment of Error for

review:

       {¶13} “I. THE TRIAL COURT ERRED IN DENYING THE APPELLANT’S

MOTION FOR RELIEF FROM JUDGMENT.”

                                             I.

       {¶14} Appellant, in his sole Assignment of Error, argues the trial court erred in

denying his motion for relief from judgment. We disagree.

       {¶15} In his motion, Appellant makes a claim of ineffective assistance of counsel

arguing that his attorney failed to advise him that he would be prohibited from carrying a

firearm, and that such prohibition would prevent him from being able to be employed in

certain fields.

       {¶16} Pursuant to R.C. 2953.21, the trial court considered Appellant’s current

motion as a motion for post-conviction relief.

       {¶17} R.C. §2953.21(A) states, in part, as follows:

       {¶18} “(1) Any person who has been convicted of a criminal offense or

adjudicated a delinquent child 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



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Stark County, Case No. 2014 CA 00047                                                      4


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.”

        {¶19} Pursuant to R.C. §2953.21(A)(2), a petition for post-conviction relief “shall

be filed no later than one hundred eighty 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 or

adjudication or, if the direct appeal involves a sentence of death, the date on which the

trial transcript is filed in the Supreme Court. If no appeal is taken, except as otherwise

provided in section 2953.23 of the Revised Code, the petition shall be filed no later than

one hundred eighty days after the expiration of the time for filing the appeal.”

        {¶20} Initially, the trial court found that Appellant made this same argument in

his Motion to Withdraw, and that such was previously considered fully and denied by the

trial court.

        {¶21} Under the doctrine of res judicata, a final judgment of conviction bars a

convicted defendant who was represented by counsel 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,

which resulted in that judgment of conviction, or on an appeal from that judgment. State

v. Szefcyk, 77 Ohio St.3d 93, 671 N.E.2d 233(1996), syllabus, approving and following

State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104(1967), paragraph nine of the

syllabus. It is well settled that, “pursuant to res judicata, a defendant cannot raise an

issue in a [petition] for post conviction relief if he or she could have raised the issue on



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Stark County, Case No. 2014 CA 00047                                                    5

direct appeal.” State v. Reynolds, 79 Ohio St.3d 158, 161, 679 N.E.2d 1131(1997).

Accordingly, “[t]o survive preclusion by res judicata, a petitioner must produce new

evidence that would render the judgment void or voidable and must also show that he

could not have appealed the claim based upon information contained in the original

record.” State v. Nemchik, 9th Dist. Lorain No. 98CA007279, 2000 WL 254908 (Mar. 8,

2000); see, also, State v. Ferko, 9th Dist. Summit No. 20608, 2001 WL 1162835 (Oct. 3,

2001).

         {¶22} As stated by the trial court, The Temporary Orders in this matter, signed

by Appellant, state:

         {¶23} “ … the Defendant shall be prohibited from:

         {¶24} 5. Obtaining or making use of any deadly weapon or dangerous

ordinance.”

         {¶25} The trial court further found that Appellant has failed to demonstrate that

he was not guilty of the offense of Domestic Violence.

         {¶26} The trial court further found said motion was not timely made, Appellant’s

conviction having occurred in November, 1996.




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Stark County, Case No. 2014 CA 00047                                                  6


       {¶27} Upon review, we find no error in the trial court’s denial of Appellant’s

motion for relief from judgment. Appellant’s sole Assignment of Error is overruled.

       {¶28} For the foregoing reasons, the judgment of the Massillon Municipal Court,

Stark County, Ohio, is affirmed.



By: Wise, J.

Gwin, P. J., and

Baldwin, J., concur.


JWW/d 1021




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