[Cite as State v. Williams, 2012-Ohio-4140.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                         C.A. No.       26353

          Appellee

          v.                                          APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
CAMERON D. WILLIAMS                                   COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
          Appellant                                   CASE No.   CR 2007-08-2450

                                 DECISION AND JOURNAL ENTRY

Dated: September 12, 2012



          MOORE, Judge.

          {¶1}   Defendant-Appellant, Cameron D. Williams, appeals from the February 21, 2012

order of the Summit County Court of Common Pleas denying his motions for resentencing. We

affirm.

                                                 I.

          {¶2}   This matter stems from the murder of Darian Polk. The facts regarding Mr. Polk’s

murder, as well as the procedural history of the case, are set forth in State v. Williams, 9th Dist.

No. 24169, 2009-Ohio-3162.

          {¶3}   After a jury trial, Mr. Williams was convicted of murder; two counts of

aggravated murder, with capital offenses and firearm specifications on each count; kidnapping,

with a firearm specification; aggravated burglary, with a firearm specification; violating a

protection order while committing a felony, with a firearm specification; intimidation of a crime

victim while using force or unlawful threat of harm, with a firearm specification; escape while
                                                   2


under detention for felonies of the third, fourth or fifth degree; having weapons while under

disability; and carrying a concealed weapon. See State v. Williams, 9th Dist. No. 25879, 2011-

Ohio-6141, ¶ 3. Based upon the jury’s finding that “the aggravating circumstances did not

outweigh the mitigating factors,” the trial court sentenced Mr. Williams to life imprisonment

with an aggregate eligibility for parole after 69 years. Id. at ¶ 4.

        {¶4}    Mr. Williams appealed, and we affirmed all of his convictions except for violating

a protection order while committing a felony because it was not supported by sufficient

evidence. Id. at ¶ 5. In addition to his direct appeal, Mr. Williams also filed a petition in the trial

court for post-conviction relief (“PCR”), which was denied. Id. at ¶ 11.

        {¶5}    Mr. Williams then filed the following motions: (1) motion for a new trial alleging

juror misconduct, (2) motion to dismiss indictment alleging that the charge of aggravated

burglary failed to contain the requisite mens rea, and (3) motion for resentencing alleging that he

was wrongly convicted of allied offenses. The trial court denied all motions and Mr. Williams

timely appealed from the order denying his motion for resentencing based upon allied offenses.

        {¶6}    In affirming the trial court’s order, we determined that Mr. Williams’ motion must

be construed as a successive petition for PCR, governed by R.C. 2953.23, because he could have

raised the issue of allied offenses in his first direct appeal and he previously filed a petition for

PCR. Id. at ¶ 13-15. We stated:

        Here, [Mr.] Williams’ petition for [PCR] is untimely and successive. In his
        petition, [Mr.] Williams did not advise the trial court how he was unavoidably
        prevented from discovering the facts upon which his petition was based; nor did
        he claim a new retroactive right that has been recognized by the United States
        Supreme Court. See R.C. 2953.23(A). Thus, the trial court did not have statutory
        authority to consider the petition.

Id. at ¶ 16.
                                                 3


       {¶7}      Subsequent to his second appeal, Mr. Williams filed two more motions with the

trial court. The first motion was filed on December 13, 2011, asking for resentencing and a final

appealable order, and the second motion was filed on January 18, 2012, asking for resentencing.

In denying both motions, the trial court held:

       [Mr. Williams] now asserts twofold. First, that the March 21, 2008 sentencing
       entry is void and not a final appealable order because the Court did not state in a
       separate sentencing opinion the specific findings/factors required in R.C.
       2929.03(F) for imposing its sentence - the mitigating factors the Court found to
       exist, the aggravating circumstances that offender was found guilty of
       committing, and the reasons why the aggravating circumstances did not
       sufficiently outweigh the mitigating factors. Second, [Mr. Williams] asserts that
       the sentencing entry did not sentence him on the “capital specifications”.

       The State counters that [Mr. Williams’] Motions are procedurally untimely and
       successive petitions for [PCR], and substantively, that he is not entitled to a
       sentencing opinion under R.C. 2929.03(F) because this section only applies when
       a sentence of death is imposed.

       Upon review, the Court agrees with the State. First, [Mr. Williams’] recent
       Motions are untimely and successive petitions for [PCR]. As such, [Mr.
       Williams’] Motions are now barred by res judicata. Furthermore, R.C.
       2929.03(F) does not apply because the jury did not recommend the death sentence
       on the aggravated murder counts and the Court imposed a sentence of life with
       parole ability after thirty years. Lastly, upon review, the sentencing entry itself
       does correctly address the disposition of the capital specifications.

(Internal citations omitted.)

       {¶8}      Mr. Williams timely appealed and raised one assignment of error for our

consideration.

                                                 II.

                                    ASSIGNMENT OF ERROR

       THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING [MR.
       WILLIAMS’] MOTION FOR RESENTENCING AND FINAL APPEALABLE
       ORDER.

       {¶9}      In his sole assignment of error, Mr. Williams argues that the trial court erred in

denying his motion(s) for resentencing because (1) the entry dated March 25, 2008, neglects to
                                                 4


sentence for the “capital specification,” and (2) the entries dated March 21, 2008, and March 25,

2008, violate the “one document rule.”

       {¶10} As previously stated in Williams, 2011-Ohio-6141, ¶ 15, because Mr. Williams

did not raise either of these issues in his direct appeal, and because he has previously filed a

petition for PCR, we must examine this matter as an untimely, successive petition for PCR

pursuant to R.C. 2953.23.(A)(1)(a) and (b).

       {¶11} R.C. 2953.23(A) states that:

       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 petition for similar relief on behalf of a petitioner unless division
       (A)(1) * * * 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* * *.

       {¶12} Here, Mr. Williams has not shown that he was unavoidably prevented from

discovery of the facts upon which his claims for relief rely. In fact, the record indicates that Mr.

Williams had knowledge of, and access to, both the March 21, 2008, and the March 25, 2008

sentencing entries at the time of his first direct appeal in 2009. Additionally, Mr. Williams has

not claimed that the United States Supreme Court has recognized a new federal or state right that

is retroactively applicable to his case, nor has he asserted a claim based upon such a right.

Finally, even if Mr. Williams did show unavoidable delay or a new retroactive right recognized
                                                 5


by the United States Supreme Court, he has not shown by clear and convincing evidence that, but

for constitutional error at trial, the jury would not have convicted him of the above-stated

offenses.

                                                III.

       {¶13} Therefore, based upon R.C. 2953.23(A), the trial court did not have the statutory

authority to consider Mr. Williams’ motions for resentencing, and did not err in denying those

motions as untimely, successive petitions for PCR.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       CARLA MOORE
                                                       FOR THE COURT
                                          6



WHITMORE, P. J.
CARR, J.
CONCUR.


APPEARANCES:

CAMERON D. WILLIAMS, pro se, Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
