[Cite as State v. Weber, 2014-Ohio-4133.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                        LAKE COUNTY, OHIO


STATE OF OHIO,                                   :      OPINION

                 Plaintiff-Appellee,             :
                                                        CASE NO. 2013-L-080
        - vs -                                   :

JOSEPH T. WEBER,                                 :

                 Defendant-Appellant.            :


Criminal Appeal from the Lake County Court of Common Pleas, Case No. 10 CR
000507.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Alana A. Rezaee, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).

Joseph T. Weber, pro se, PID: A594653, Trumbull Correctional Institution, P.O. Box
901, Leavittsburg, OH 44430-0901 (Defendant-Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Joseph T. Weber, appeals from the judgment of the Lake

County Court of Common Pleas denying appellant’s postconviction “Motion for

Evidentiary Hearing.” For the reasons discussed below, we affirm.

        {¶2}     In September 2010, appellant was charged, via bill of information, with

one count of carrying concealed weapons, a felony of the fourth degree, in violation of

R.C. 2923.12(A)(2); and three counts of receiving stolen property, in violation of R.C.
2913.51(A), two of which were felonies of the fourth degree and the remaining count, a

felony of the fifth degree. Appellant entered a plea of guilty to all charges and, on

January 11, 2011, the trial court sentenced appellant to an aggregate term of 66 months

imprisonment. No appeal was filed from this judgment.

       {¶3}   On June 3, 2011, appellant filed a motion for judicial release and

requested a hearing. The state opposed the motion. And, on June 21, 2011, the trial

court denied the motion.

       {¶4}   On October 22, 2012, appellant filed a pro se motion for an “evidentiary

hearing.” In the motion, appellant claimed he was deprived of effective assistance of

trial counsel when counsel failed to advise him of various rights he would be waiving by

pleading guilty; he further asserted counsel was ineffective for failing to file a motion to

suppress evidence.

       {¶5}   The state filed a memorandum in opposition to the motion, arguing

appellant’s pleading should be treated as a petition for postconviction relief. Construing

the pleading thusly, the state asserted the petition should be denied because (1) it was

untimely; and (2) the arguments could have been raised on direct appeal and are

therefore barred by res judicata. On December 12, 2012, the trial court determined the

pleading should be treated as a petition for postconviction relief. As such, the court

agreed with the state’s arguments and dismissed the petition. This appeal followed.

       {¶6}   Appellant asserts two assignments of error. For ease of discussion, we

shall address them together. The provide:

       {¶7}   “[1.] Court abused its discretion in not granting evidentiary hearing which

denied defendant due process and equal protection of the laws U.S.C.A. 14, 4, 5, 6.




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       {¶8}   “[2.] Defendant was denied effective assistance of counsel and due

process of the laws. U.S.C.A. 6, 14.”

       {¶9}   Appellant’s assigned errors argue his trial counsel was ineffective for

failing to file a motion to suppress evidence. He contends that, had a hearing been

held, the trial court would have concluded counsel’s alleged deficient performance

functioned to prejudice appellant.

       {¶10} Preliminarily, “[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. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, ¶12, citing State v. Bush, 96 Ohio

St.3d 235, 2002-Ohio-3993. Because appellant’s motion was (1) filed subsequent to

the expiration of the time for filing a direct appeal, (2) claimed a denial of constitutional

rights, and (3) was seeking to vacate his judgment on conviction, the trial court properly

construed the pleading as a petition for postconviction relief. Schlee, supra.

       {¶11} When a trial court dismisses a petition for postconviction relief, we review

the judgment de novo. State v. Johnson, 5th Dist. Guernsey No. 12 CA 19, 2013-Ohio-

1398, ¶27.

       {¶12} R.C. 2953.21(A)(2) provides that petitions for postconviction relief must 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.” If, as

here, no direct appeal is taken, the petition must be filed no later than 180 days after the

expiration of the time for filing the appeal. Id.

       {¶13} In this case, appellant was sentenced on January 11, 2011; the time for

filing his direct appeal expired on February 10, 2011. Accordingly, the deadline for filing

a petition for postconviction relief was August 9, 2011. The petition in the instant matter


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was filed over a year after this date. In this respect, the trial court properly found the

petition was time barred.

       {¶14} R.C. 2953.23(A)(1), however, provides an exception for untimely petitions

for postconviction relief. That subsection requires a petition to meet a two-pronged test.

First, the petitioner must establish he was “unavoidably prevented from discovery of the

facts upon which the [he] must rely to present the claim for relief” or, after the 180 day

window to present a petition expired, “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.” R.C. 2953.23(A)(1)(a).

Also, the petitioner must show “by clear and convincing evidence that, but for

constitutional error at trial, no reasonable factfinder would have found [him] guilty of the

offense of which the petitioner was convicted.” R.C. 2953.23(A)(1)(b).

       {¶15} In this case, the trial court observed that appellant failed to set forth any

argumentation relating to the circumstances described in R.C. 2953.23 and, as a result,

appellant’s petition was not excepted from the 180-day time limitation set forth under

R.C. 2953.21.

       {¶16} The trial court further concluded that even if the petition was timely,

appellant’s arguments were barred by res judicata. Pursuant to 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 trial, which resulted in the judgment of

conviction, or on an appeal from that judgment.” State v. Szefcyk, 77 Ohio St.3d 93

(1996), syllabus. Further, to overcome the application of res judicata in the context of a


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petition for postconviction relief, the petitioner must demonstrate, by reference to

evidence dehors the record, that he was unable to raise the constitutional claim on

direct appeal based upon the evidence in the existing record.        State v. Amato, 11th

Dist. Lake No. 2008-L-022, 2009-Ohio-2950, ¶28.

      {¶17} In this case, appellant claimed his trial counsel was ineffective for failing to

file a motion to suppress. Because appellant pleaded guilty to the bill of information, the

only way in which he could have raised the issue is by reference to evidence dehors the

record.   In this respect, the argument appellant raised in his petition was not an

available issue for direct appeal and, consequently, would not be barred by res judicata.

Nevertheless, appellant failed to submit evidence outside the record to support any

such argument pertaining to trial counsel’s ineffectiveness and, as a result, his petition

would be insufficient even if it were timely. In sum, to be successful, appellant would

need to obtain additional evidence outside the record to support his assertion because

the paucity of information in the record prevents this court from discerning any obvious

mistakes or prejudice in the proceedings below.

      {¶18} Appellant’s two assigned errors are without merit.

      {¶19} For the reasons discussed in this opinion, the judgment of the Lake

County Court of Common Pleas is affirmed.



THOMAS R. WRIGHT, J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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