[Cite as State v. Wilson, 2016-Ohio-477.]
                            STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


STATE OF OHIO                                 )    CASE NO. 14 MA 138
                                              )
        PLAINTIFF-APPELLEE                    )
                                              )
VS.                                           )    OPINION AND
                                              )    JUDGMENT ENTRY
SHAWN WILSON                                  )
                                              )
        DEFENDANT-APPELLANT                   )

CHARACTER OF PROCEEDINGS:                          Appellant’s Motion for Reconsideration.

JUDGMENT:                                          Denied.

APPEARANCES:

For Plaintiff-Appellee:                            Atty. Paul J. Gains
                                                   Mahoning County Prosecutor
                                                   Atty. Ralph M. Rivera
                                                   Assistant Prosecuting Attorney
                                                   21 West Boardman Street, 6th Floor
                                                   Youngstown, Ohio 44503

For Defendant-Appellant:                           Shawn Wilson, Pro se
                                                   Inmate No. 640-014
                                                   Trumbull Correctional Institution
                                                   P.O. Box 901
                                                   Leavittsburg, Ohio 44430


JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
                                                   Dated: February 4, 2016
[Cite as State v. Wilson, 2016-Ohio-477.]
WAITE, J.


        {¶1}     This is Appellant Shawn Wilson’s third appeal in this matter. In it, he

seeks reconsideration of our decision to affirm the trial court’s denial of his second

request to withdraw a guilty plea. For the following reasons, we deny Appellant’s

reconsideration request and again affirm the trial court.

        {¶2}     On January 7, 2013, Appellant pleaded guilty to a number of charges,

including aggravated murder, felonious assault, improperly discharging a firearm into

a habitation and tampering with evidence. In exchange for his guilty plea, several

other charges were dismissed, including a murder charge that had a capital

specification attached. As agreed by the parties, he was sentenced to life in prison

plus an additional thirteen years, to be served concurrently. Before his plea was

entered and accepted, Appellant underwent a competency evaluation with a

physician he requested. He was found competent.

        {¶3}     Appellant appealed on the basis that he did not enter a knowing,

intelligent and voluntary plea. We affirmed the trial court on direct appeal in State v.

Wilson, 7th Dist. No. 13 MA 10, 2014-Ohio-942 (“Wilson I”). We specifically dealt

with and ruled on Appellant’s claims of ineffective assistance of counsel, particularly

as to the competency evaluation and Appellant’s claims that his mental state and

medications rendered him unable to enter a plea knowingly.

        {¶4}     During the pendency of his direct appeal in Wilson I, Appellant filed a

request to withdraw his plea with the trial court which was denied. Appellant did not

appeal this denial.
                                                                                      -2-

       {¶5}   Subsequent to our Wilson I ruling, Appellant filed another request to

withdraw his plea with the trial court. The request was again denied, but this time

Appellant filed an appeal of the denial which was heard and decided in State v.

Wilson, 7th Dist. No. 14 MA 138, 2015-Ohio-4808 (Wilson II).

       {¶6}   In Wilson II, this Court revisited certain claims from Appellant’s direct

appeal. That is, Appellant sought to withdraw his plea raising the issue that his

competency evaluation was flawed because of later, completely unrelated, bad

conduct of his requested doctor, and because the medications he was taking for his

mental problems coupled with the underlying mental disturbances themselves

rendered his plea invalid. Because Appellant’s claims and the evidence on which he

relied to support these claims were virtually undistinguishable in his postconviction

request to those claims and evidence addressed on direct appeal, we held that the

trial court correctly decided Appellant’s repetitive claims were barred as res judicata.

       {¶7}   Now Appellant asks us to reconsider our determination in Wilson II.

Appellant’s request is denied for several reasons. First, Appellant is time-barred in

his reconsideration request.

       {¶8}   App.R. 26(A)(1)(a) states, in relevant part:

       Application for reconsideration of any cause or motion submitted on

       appeal shall be made in writing no later than ten days after the clerk

       has both mailed to the parties the judgment or order in question and

       made a note on the docket of the mailing as required by App. R. 30(A).
                                                                                      -3-

       {¶9}   As noted on the docket, our decision in Wilson II was entered on the

docket and mailed to Appellant on November 17, 2015.                 In order for any

reconsideration request to be timely, Appellant was required to file no later than

November 27, 2015. However, Appellant failed to file until December 2, 2015, five

days after his deadline has passed.

       {¶10} Pursuant to App.R. 14(B), an “[e]nlargement of time to file an

application for reconsideration or for en banc consideration pursuant to App.R. 26(A)

shall not be granted except on a showing of extraordinary circumstances.”

       {¶11} Appellant never alleges or argues “extraordinary circumstances.”

Instead, he attempts to excuse his late filing by providing a copy of a mail log from

Trumbull Correctional Institution, where he is currently incarcerated, indicating that he

may not have received our judgment until November 23, 2015, four days before the

timely application deadline. He claims without explanation that four days was not

enough time to allow him to properly draft and file a motion. Second, he claims that

the Thanksgiving holiday (November 26, 2015) further impeded his ability to file a

timely motion.   These do not, without more, rise to the level necessary by rule.

Regardless, even if we would accept Appellant’s tardy application as timely,

Appellant’s arguments fail on the merits.

       {¶12} Appellant recognizes that issues that have or should have been raised

on direct appeal are barred by res judicata.       However, Appellant argues that a

defendant can overcome this bar by demonstrating that the issue could not have

been determined without considering evidence dehors the record. While Appellant’s
                                                                                          -4-

interpretation of the law is correct, his application of that law to the facts of his case is

fatally flawed.

       {¶13} Appellant cites to several cases where, as he interprets these cases,

simple introduction of evidence de hors (outside of) the record requires new review of

a matter that would otherwise be barred by the principles of res judicata.                In

particular, Appellant cites to State v. Schlee, 11th Dist. No. 97-L-121, 1998 WL

964291, (Dec. 31, 1998) and State v. Robinson, 9th Dist. No. 27641, 2015-Ohio-

4262. But Appellant misinterprets both the facts and the resultant law of these cases.

       {¶14} In Schlee, the Eleventh District Court of Appeals did hold that the

defendant’s postconviction filing raising for a second time the issue of ineffective

assistance should not have been dismissed by the trial court on the basis of res

judicata.   This was entirely due to the fact that the defendant attached to his

postconviction filing, for the first time, evidence outside of the trial court record that

was crucial to the issue of ineffective assistance. Since it was not contained in the

trial court record, it could not have played a part in the review of the issue on direct

appeal. Importantly, the Court stated:

       It follows that even if the issue of ineffective assistance of counsel is

       raised on direct appeal, that issue will not be barred by res judicata in a

       postconviction relief proceeding if the issue could not have been

       determined without resort to evidence dehors the record.             State v.

       Smith (1985), 17 Ohio St.3d 98, 101 fn, 1, 477 N.E.2d 1128. However,

       in State v. Coleman (Mar. 17, 1993), Hamilton App. No. C-900811,

       unreported, at 21, 1993 Ohio App. LEXIS 1485, the court explained that
                                                                                    -5-

      the evidence outside the record “must meet some threshold standard of

      cogency.” This court adopted this analysis by observing:


      “The evidence must be genuinely relevant, and it must materially

      advance a petitioner's claim that there has been a denial or

      infringement of his or her constitutional rights. In the absence of such a

      standard, it would be too easy for the petitioner to simply attach as

      exhibits ‘evidence which is only marginally significant and does not

      advance the petitioner's claim beyond mere hypothesis and a desire for

      further discovery.’” State v. Sopjack (Aug. 22, 1997), Geauga App. No.

      96-G-2004, unreported, at 8, quoting Coleman, supra, at 21.

      {¶15} Reviewing the defendant’s attachments, the Court found some of the

evidence met this standard while some did not. Thus, while the evidence alone did

not entitle the defendant to automatically withdraw his plea, the defendant was

entitled to have the trial court review the evidence when making its determination as

to whether the defendant should be allowed to withdraw his guilty plea.

      {¶16} In Robinson, the Ninth District also overruled a trial court dismissal of a

postconviction matter based on res judicata.      In Robinson, the trial court never

considered the evidence submitted by the defendant, even though it was clearly

newly discovered, relevant to the issue and dehors the record. In both Schlee and

Robinson, the Courts of Appeal explained that they were not granting the requests to

withdraw the pleas, they were simply remanding for the trial courts to make a
                                                                                       -6-

decision on the defendants’ motions considering the evidence raised by the

defendants and not found in the trial court record.

       {¶17} Unfortunately for Appellant, there is no evidence dehors the trial court

record that is crucial for a full and fair determination of the issues he presents. Either

the information was already before the trial court, and thus used to determine the

outcome of the Wilson I and Wilson II decisions, or the so-called evidence does not

advance Appellant’s cause.

       {¶18} Appellant’s arguments continue to center on his mental health status

and the unrelated fraud conviction of the doctor who performed his competency

evaluation, Dr. Anil C. Nalluri. Appellant first urges that the trial court should have

considered a psychological report prepared by Dr. Sandra McPherson and Dr.

Donald McPherson. According to Appellant, the report shows that: his IQ is 63, he

has a mental illness diagnosis, he has been prescribed psychiatric medication and he

has attempted suicide while at the jail.       Appellant also suggests that there is

additional evidence available which he cannot obtain without the assistance of new

and effective counsel.

       {¶19} In order to overcome res judicata, Appellant must show that his

competency could not have been determined without consideration of the evidence

he now presents and that was outside of the trial court record. Appellant is unable to

do so. First, we note that Appellant had a competency evaluation, performed by Dr.

Nalluri as requested by Appellant, and that was part of the record and was

considered by the trial court. Thus, the record contains evidence of his mental health

status. Unlike other cases cited by Appellant, he was given a pre-trial competency
                                                                                       -7-

evaluation. The record is devoid of any evidence to suggest that he was unable to

understand the nature and objective of the proceedings at the time. Additionally, no

evidence dehors the record impacts on the issue in any way.

       {¶20} The record demonstrates that the McPhersons were given permission

to assess Appellant’s mental health to assist in his defense on October 12, 2012,

which was well before his plea hearing. Appellant contends that the resulting report

is not part of the record. While this is technically true, all parties were aware of this

evaluation and Appellant was free to use the report to assist in his defense if he felt it

was necessary at the time.

       {¶21} Additionally, a review of the report reflects that it would not assist

Appellant’s case. The report did opine that Appellant’s IQ is 63 but cautioned that

the result could not be relied on with confidence as either “periodic significant

psychotic reference” or a deliberate attempt to perform poorly on the test could have

contributed to the score. As the report reveals that Appellant could have intentionally

performed poorly on the test, his IQ score likely would not have changed the court’s

determination that he was competent to enter a plea.            The report states that

Appellant’s mother indicated that he had attempted suicide, but the doctors found her

to be unreliable. Additionally, they noted that he may have a psychotic disorder, but

cautioned that his diagnostic status was insecure and that Appellant’s diagnosis has

changed over the years. The report contains several unfavorable observations as to

Appellant’s mental health, however, the doctors question whether Appellant was

exaggerating his symptoms in order to gain a favorable diagnosis. Hence, even if
                                                                                        -8-

this report had been unavailable to Appellant at the time of trial, it likely would not

assist his claims.

       {¶22} An exhaustive testing of Appellant’s medications may not explicitly be

contained of record, but as we have stated in both Wilson I and Wilson II, when

addressed by the trial court judge on the record, Appellant did state that he was

using a number of prescription medications but that these in no way affected his

ability to understand the process. Hence, Appellant’s reliance on this report does not

rise to the level found in Schlee and Robinson and provides no crucial information to

the court in making its determination as to the competency issues raised by Appellant

by direct appeal or in his motion to withdraw his plea.

       {¶23} Likewise, his insistence that Dr. Nalluri’s later workers compensation

fraud conviction and documents relating to this conviction are not barred by res

judicata is misplaced. It is abundantly clear from reading our Opinions in both Wilson

I and Wilson II that this “evidence,” such as it is, was considered both in the trial court

and on appeal. Appellant simply disagrees with the court’s interpretation as to the

relevance of this information. Both the trial court and this Court have repeatedly held

that the information has no relevance as regards Appellant’s issues.

       The test generally applied upon the filing of a motion for reconsideration

       in the court of appeals is whether the motion calls to the attention of the

       court an obvious error in its decision, or raises an issue for

       consideration that was either not considered at all or was not fully

       considered by the court when it should have been.
                                                                                    -9-

Columbus v. Hodge, 37 Ohio St.3d 68, 523 N.E.2d 515 (10th Dist.1987), paragraph

one of the syllabus.

      {¶24} Because Appellant has presented no evidence dehors the record

important to the determination of his issue on direct appeal or as to his motion to

withdraw his plea, the trial court did not violate Appellant’s due process rights in

dismissing his motion. There is no new, relevant information Appellant is attempting

to raise in his motion to withdraw his plea, and his motion for reconsideration does

not involve any matter not already considered by this Court.

      {¶25} Again, in order to prevail on a motion for reconsideration, an appellant

must demonstrate an obvious error in our decision or raise an issue that was either

not considered at all or not fully considered. Appellant contends that determination of

the issues in his motion and his appeal of its denial required evidence dehors the

record.   However, we find that the “evidence” on which he relies was already

considered and additional evidence was not newly discovered and would not have

likely assisted his case.    Accordingly, Appellant’s motion for reconsideration is

denied.

Waite, J., concurs.

Donofrio, P.J., concurs.

DeGenaro, J., concurs.
