[Cite as State v. Willingham, 2017-Ohio-8345.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


State of Ohio                                        Court of Appeals No. L-17-1042

        Appellee                                     Trial Court No. CR0201402019

v.

Dajuan Willingham                                    DECISION AND JUDGMENT

        Appellant                                    Decided: October 27, 2017

                                                 *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Claudia A. Ford, Assistant Prosecuting Attorney, for appellee.

        Dajuan Willingham, pro se.

                                                 *****

        SINGER, J.

        {¶ 1} This accelerated appeal is from a judgment of the Lucas County Court of

Common Pleas. For the reasons that follow, we affirm.

        {¶ 2} In June 2014, appellant, Dajuan Willingham, was indicted on ten counts of

aggravated robbery with gun specifications, three counts of kidnapping, and two counts
of felonious assault where one count carried a gun specification. Appellant pled guilty to

six counts of aggravated robbery and two gun specifications and, on February 19, 2015,

the court sentenced him to an aggregate prison term of 30 years.

       {¶ 3} Appellant made a direct appeal of the February 2015 judgment, setting forth

these three assignments of error: (1) his plea was made unknowingly and involuntarily

under Crim.R. 11(C) because the trial court inferred community control was available

when it was not; (2) the trial court failed to find consecutive sentences were necessary to

protect the public or to punish the offender, as required by R.C. 2929.14(C)(4); and,

(3) the trial court erred in imposing costs of confinement and of court-appointed counsel

without clear and convincing evidence appellant had the ability to pay.

       {¶ 4} Appellant did not raise the issue of ineffective assistance of counsel in his

direct appeal, and we affirmed his convictions and the imposed, aggregate sentence. See

State v. Willingham, 6th Dist. Lucas No. L-15-1045, 2016 Ohio App. LEXIS 2937

(Mar. 11, 2016).

       {¶ 5} On October 14, 2015, however, appellant filed a pro se petition for

postconviction relief in the trial court claiming he received ineffective assistance of trial

counsel. The trial court dismissed the petition on October 20, 2015.

       {¶ 6} We affirmed that judgment on August 12, 2016. See State v. Willingham,

6th Dist. Lucas No. L-15-1301, 2016-Ohio-5359. In our decision, we addressed

appellant’s ineffective-assistance arguments, which were summarized as follows:




2.
              [A]ppellant claimed that “one of the robberies involved fingerprints

       that were removed from a counter that were in no way related to

       [appellant]. [Appellant] was falsely and/or wrongfully charged with the

       robbery.” Additionally, appellant contended that trial counsel lied to him

       by telling him that the trial judge promised counsel that appellant would not

       receive a prison sentence in excess of 20 years. Moreover, appellant

       asserted that counsel misled him by presenting certain redacted discovery

       materials and explaining that they implicated appellant in the robberies at

       issue in this case when in fact the unredacted versions do not implicate him.

       Finally, appellant argued that his trial counsel failed to ensure that his

       speedy trial rights were honored, noting that three months and eight days

       passed between his arrest and his eventual guilty plea.

See Willingham, 6th Dist. Lucas No. L-15-1301, 2016-Ohio-5359, at ¶ 4.

       {¶ 7} On November 29, 2016, appellant filed in the trial court a “Motion to

Correct Void Judgment Criminal R. 32,” in which he again claimed his convictions were

void because his trial counsel was ineffective. The state asserted three arguments in

response: (1) appellant’s challenge was untimely, (2) appellant did not offer evidentiary

proof of a deprivation of constitutional rights, and (3) the claim was barred by res

judicata. The trial court overruled appellant’s motion on January 27, 2017, construing

appellant’s motion as a petition for postconviction relief and finding it was filed

untimely.




3.
       {¶ 8} Appellant now appeals from that judgment setting forth the following

assignment of error:

              1. COUNSEL WAS INEFFECTIVE FOR NOT INVESTIGATING

       THE PLEA OFFER BY THE STATE.

       {¶ 9} In this assigned error appellant yet again raises and appeals the issue of

ineffective assistance of his trial counsel.

       {¶ 10} “The denial of a postconviction petition will not be overturned on appeal

absent a finding of abuse of discretion.” State v. Rodriguez, 6th Dist. Wood No.

WD-14-075, 2015-Ohio-562, ¶ 7. An abuse of discretion means more than an error of

law or judgment, instead it requires a finding that the trial court’s decision was

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,

219, 450 N.E.2d 1140 (1983).

       {¶ 11} R.C. 2953.21(A)(2) requires that a petition for postconviction 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.” See State v. Brooks, 6th Dist. Lucas Nos. L-12-1348, L-12-1349, 2014-

Ohio-427, ¶ 11.

       {¶ 12} Here, appellant filed his petition for postconviction relief after the statutory

180-day period set forth in R.C. 2953.21(A)(2). More specifically, appellant’s trial

transcripts and direct appeal were filed in February 2015, and this petition was not filed




4.
until November 29, 2016. Thus appellant must meet the specific requirements set forth in

R.C. 2953.23 for us to consider his request for relief.

       {¶ 13} R.C. 2953.23 provides:

              (A) Whether a hearing is or is not held on a petition filed pursuant to

       section 2953.21 of the Revised Code, a court may not entertain a petition

       filed after the expiration of the period prescribed in division (A) of that

       section or a second petition or successive petitions for similar relief on

       behalf of a petitioner unless division (A)(1) or (2) of this section applies:

              (1) Both of the following apply:

              (a) Either the petitioner shows that the petitioner was unavoidably

       prevented from discovery of the facts upon which the petitioner must rely

       to present the claim for relief, or, subsequent to the period prescribed in

       division (A)(2) of section 2953.21 of the Revised Code or to the filing of an

       earlier petition, the United States Supreme Court recognized a new federal

       or state right that applies retroactively to persons in the petitioner’s

       situation, and the petition asserts a claim based on that right.

              (b) The petitioner shows by clear and convincing evidence 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 or,

       if the claim challenges a sentence of death that, but for constitutional error




5.
        at the sentencing hearing, no reasonable factfinder would have found the

        petitioner eligible for the death sentence.

               (2) The petitioner was convicted of a felony, the petitioner is an

        inmate for whom DNA testing was performed under sections 2953.71 to

        2953.81 of the Revised Code or under section 2953.82 of the Revised Code

        and analyzed in the context of and upon consideration of all available

        admissible evidence related to the inmate’s case as described in division

        (D) of section 2953.74 of the Revised Code, and the results of the DNA

        testing establish, by clear and convincing evidence, actual innocence of that

        felony offense or, if the person was sentenced to death, establish, by clear

        and convincing evidence, actual innocence of the aggravating circumstance

        or circumstances the person was found guilty of committing and that is or

        are the basis of that sentence of death.

R.C. 2953.23(A)(1)-(2); State v. Ayers, 6th Dist. Erie No. E-07-072, 2009-Ohio-393,

¶ 15.

        {¶ 14} We first note this appeal does not involve a claim of actual innocence based

on DNA testing. See R.C. 2953.23(A)(2). Further, appellant has failed to establish he

was either (a) unavoidably prevented from discovery of facts on which he relies to

present his claim for relief or that a new right applies retroactively to him, and that (b) by

clear and convincing evidence, but for the constitutional error at trial, no reasonable

factfinder would have found him guilty. See R.C. 2953.23(A)(1). Appellant has merely




6.
repeated the same arguments he asserted in his last postconviction relief petition. Thus,

we find the court lacked jurisdiction to consider appellant’s successive petition for

postconviction relief. See Ayers at ¶ 16; see also Rodriguez, 6th Dist. Wood No.

WD-14-075, 2015-Ohio-562, at ¶ 6.

       {¶ 15} Moreover, “res judicata applies to proceedings involving postconviction

relief.” See State v. Burton, 4th Dist. Gallia No. 13CA12, 2014-Ohio-2549, ¶ 17, citing

State v. Szefcyk, 77 Ohio St.3d 93, 95, 671 N.E.2d 233 (1996). Under res judicata, a final

judgment of conviction bars the convicted who was represented by counsel from raising

and litigating in any proceeding except an appeal from that judgment, any defense or

claimed lack of due process that was raised or could have been raised at trial, which

resulted in that judgment of conviction, or on an appeal from that judgment. See Burton

at ¶ 18 (barring ineffective claim in postconviction petition under res judicata); Brooks,

6th Dist. Lucas Nos. L-12- 1348, L-12-1349, 2014-Ohio-427, at ¶ 14 (applying res

judicata to a successive petition).

       {¶ 16} Accordingly, because this successive petition for postconviction relief is

untimely and not brought as an exception under R.C. 2953.23(A), we find the trial court

lacked jurisdiction to consider the petition and res judicata bars appellant from

relitigating his ineffective assistance claim. The trial court did not abuse its discretion,

and appellant’s sole assigned error is found not well-taken.




7.
                                       Conclusion

       {¶ 17} The judgment of the Lucas County Court of Common Pleas is affirmed.

The costs of this appeal are assessed to appellant pursuant to App.R. 24.


                                                                       Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                              _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Christine E. Mayle, J.                                     JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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