[Cite as State v. Han, 2016-Ohio-5613.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                      JUDGES:
STATE OF OHIO                                 :       Hon. Sheila G. Farmer, P.J.
                                              :       Hon. W. Scott Gwin, J.
                         Plaintiff-Appellee   :       Hon. William B. Hoffman, J.
                                              :
-vs-                                          :
                                              :       Case No. 2016CA00085
SHUXIN HAN                                    :
                                              :
                     Defendant-Appellant      :       OPINION




CHARACTER OF PROCEEDING:                          Criminal appeal from the Alliance Municipal
                                                  Court, Case No. 2014 CRB 00228



JUDGMENT:                                         Affirmed



DATE OF JUDGMENT ENTRY:                           August 22, 2016



APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

JENNIFER ARNOLD                                   JOHN B. GIBBONS
Law Director, City of Alliance                    55 Public Square
470 East Market St.                               Suite 2100
Alliance, OH 44601                                Cleveland, OH 44113
Stark County, Case No. 2016CA00085                                                     2

Gwin, J.

      {¶1}   Appellant Shuxin Han appeals the April 7, 2016 judgment entry of the

Alliance Municipal Court denying his motion for post-conviction relief. Appellee is the

State of Ohio.

                                  Facts & Procedural History

      {¶2}   An incident occurred between appellant and his wife Amanda Han on

November 18, 2013. On February 6, 2014, appellant was charged with one count of

domestic violence pursuant to R.C. 2919.25(A), one count of endangering children

pursuant to R.C. 2919.22(B)(1), one count of criminal damaging or endangering pursuant

to R.C. 2909.06(A)(1), and one count of criminal trespass pursuant to R.C. 2911.21(A)(1).

      {¶3}   The criminal damaging charge concerned a cell phone which appellant

admittedly threw on the floor during the argument and which was damaged as a result.

According to Amanda Han, she purchased the cell phone at Wal-Mart prior to separating

from appellant. Appellant testified Amanda did not work at all during the marriage and he

had purchased the cell phone in question and paid the phone bill every month, even after

Amanda moved out of the martial residence.

      {¶4}   The matter proceeded to a jury trial. Appellant was present for the entire

trial. Appellant was found not guilty as to all counts with the exception of the criminal

damaging count. Appellant was sentenced to ninety (90) days in jail on the criminal

damaging count and given credit for time served of eight (8) days. The balance of the

ninety-day jail term was suspended, with the exception of seven days. Appellant was

fined $500.00 and ordered to pay court costs.
Stark County, Case No. 2016CA00085                                                            3


       {¶5}   On August 8, 2014, appellant filed a notice of appeal to this Court of his

conviction. Appellant’s trial counsel filed a praecipe to the court reporter for the full

transcript, excluding individual voir dire. The transcript was filed on September 16, 2014.

Appellant filed his brief with this court on October 29, 2014, arguing: his conviction for

criminal damaging was against the manifest weight of the evidence; his conviction for

criminal damaging was not supported by sufficient evidence; and he received ineffective

assistance of trial counsel because trial counsel failed to move for acquittal at any point

in the proceedings pursuant to Criminal Rule 29.

       {¶6}   On May 18, 2015, in State v. Han, 5th Dist. Stark No. 2014CA00150, 2015-

Ohio-1907, this Court affirmed appellant’s conviction and found appellant’s conviction

was not against the sufficiency or the manifest weight of the evidence. We further

overruled appellant’s assignment of error with regards to ineffective assistance of

counsel. Appellant appealed this Court’s decision to the Ohio Supreme Court on June

23, 2015. The Ohio Supreme Court declined to accept jurisdiction of appellant’s appeal

on December 16, 2015.

       {¶7}   On February 2, 2016, appellant filed a motion to modify his sentence to a

term of probation. The trial court denied appellant’s motion on February 8, 2016, but

permitted appellant to serve his remaining seven (7) days in jail on week-ends. Appellant

filed a motion to prepare individual voir dire portion of the trial transcript on March 1, 2016.

       {¶8}   Appellant filed a petition for post-conviction relief on March 31, 2016. As

grounds for relief, appellant alleged ineffectiveness of trial counsel in failing to carefully

question the prospective jurors who personally had instances of previous domestic

violence. Appellant also alleged he was unavoidably prevented from filing his petition
Stark County, Case No. 2016CA00085                                                             4


timely because his appellate attorney had not ordered the preparation of the transcript of

the individual voir dire. Also on March 31, 2016, appellant filed a motion to supplement

the record with the individual voir dire transcript.

       {¶9}   The trial court issued a judgment entry on April 7, 2016. The trial court

granted appellant’s motion to supplement the record with the individual voir dire transcript.

The trial court found appellant’s post-conviction relief petition was filed more than three

hundred and sixty five (365) days beyond the date of filing of the transcript of proceedings

on September 16, 2014. Further, the trial court found appellant was not unavoidably

prevented from timely filing his petition.      The trial court found res judicata barred

appellant’s petition because the claims either were raised or could have been raised on

direct appeal. The trial court further found that more voir dire inquiry on domestic violence

would not have affected the outcome of the jury’s decision on the criminal damaging

charge. Accordingly, the trial court denied appellant’s petition for post-conviction relief.

       {¶10} Appellant appeals the April 7, 2016 judgment entry of the Alliance Municipal

Court and assigns the following as error:

       {¶11} “I. THE TRIAL COURT ERRED AND DENIED DEFENDANT-APPELLANT

SHUXIN HAN HIS RIGHT TO DUE PROCESS OF LAW BY OVERRULING HIS

PETITION FOR POST-CONVICTION RELIEF AND BY RULING THAT HE WAS NOT

UNAVOIDABLY PREVENTED FROM THE DISCOVERY OF FACTS WHICH COULD

CONSTITUTE THE BASIS OF HIS CLAIM FOR RELIEF.”
Stark County, Case No. 2016CA00085                                                          5


                                                   I.

       {¶12} R.C. 2953.21(A)(2) governs the time within a petition for post-conviction

relief must be filed and provides as follows:

       Except as otherwise provided in section 2953.23 of the Revised Code, a

       petition under division (A)(1) of this section shall be filed no later than three

       hundred and sixty five 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 * * *.

       {¶13} In this case, the trial transcript in appellant’s direct appeal was filed on

September 16, 2014. Appellant filed his petition on March 31, 2016. Therefore, his

petition is not within the three hundred and sixty five days after the date on which the trial

transcript was filed with this Court in his direct appeal and not in compliance with the time

frame as specified in R.C. 2953.21(A)(2).

       {¶14} However, pursuant to R.C. 2953.23(A), the court may consider an untimely

petition for post-conviction relief:

       (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

           * * * 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 the discovery of the facts upon which the

                  petitioner must rely to present the claim for relief, or, subsequent
Stark County, Case No. 2016CA00085                                                         6


                 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 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 that petitioner was guilty of the offense of which the

                 petitioner was convicted of * * *.

       {¶15} Appellant argues he was unavoidably prevented from the discovery of the

facts upon which he must rely to present his claim for relief because his appellate counsel

did not order the transcript of the individual voir dire and thus he could not, in his direct

appeal, argue that his trial counsel did not properly question those individuals on the jury

panel who stated they had a previous experience with domestic violence.

       {¶16} The exception provided in R.C. 2953.23(A)(1) for untimely filing may only

be utilized if a petitioner is unavoidably prevented from discovering facts upon which the

petitioner must rely. R.C. 2953.23(A) contemplates the unavoidable discovery of new

historical facts of the case, not new legal theories. State v. Melhado, 10th Dist. Franklin

No. 05AP-272, 2006-Ohio-641.

       {¶17} In this case, all of the claims in appellant’s petition are based upon facts

and circumstances that occurred, and were known to appellant, during trial. Appellant

was present in the courtroom during voir dire when all of the jurors were questioned,

selected, and seated; further, the entire record was available for transcription during the
Stark County, Case No. 2016CA00085                                                          7


time period listed in R.C. 2953.21(A)(2) for a timely post-conviction filing. Appellant was

present at the trial and had knowledge of all these facts and circumstances surrounding

his claims as they happened during the course of his trial and thus he was not unavoidably

prevented from discovering these facts simply because his appellate attorney did not

order the individual portion of the voir dire transcribed. State v. Melhado, 10th Dist.

Franklin No. 05AP-272, 2006-Ohio-641; State v. Shackelford, 2nd Dist. Montgomery No.

19965, 2004-Ohio-2431; State v. Russell, 10th Dist. Franklin No. 05AP-391, 2006-Ohio-

383; State v. Bristow, 5th Dist. Richland No. 00-CA-17-2, 2000 WL 1886228 (Dec. 20,

2000); State v. Vinson, 11th Dist. Lake No. 2011-L-172, 2012-Ohio-3421.

       {¶18} Further, for the exception to apply, appellant must also show, by clear and

convincing evidence, that, but for the constitutional error at trial, no reasonable factfinder

would have found him guilty of the offense for which he was convicted.                   R.C.

2953.23(A)(1)(b). In this case, appellant does not make such a demonstration. See State

v. Melhado, 10th Dist. Franklin No. 05AP-272, 2006-Ohio-641; State v. Garn, 5th Dist.

Richland No. 02 CA 45, 2003-Ohio-820. First, appellant was acquitted on the charge of

domestic violence. He fails to demonstrate how more inquiry by his trial counsel on the

issue of domestic violence would have affected the jury’s decision on the charge of

criminal damaging. Further, both the prosecutor and appellant’s trial attorney conducted

voir dire on the issue of domestic violence. Additionally, the trial court inquired of the

panel if there was any reason why they could not render a fair and impartial decision and

only one juror indicated they could not. However, this juror was not seated on the jury in

appellant’s case.
Stark County, Case No. 2016CA00085                                                         8


       {¶19} As such, appellant has failed to meet his burden under R.C. 2953.23(A)(1)

to file an untimely petition for post-conviction relief. Thus, the trial court did not err in

finding it lacked jurisdiction to consider appellant’s petition. See State v. Crawford, 5th

Dist. Richland No. 09-CA-16, 2009-Ohio-5176.

       {¶20} In addition, any errors as to these issues either were or could have been

raised on direct appeal and are therefore barred under the doctrine of res judicata. “Under

the doctrine of res judicata, a final judgment of conviction bars the defendant from raising

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

claimed lack of due process that the defendant raised or could have raised at the trial

which resulted in that judgment of conviction or on appeal from that judgment.” State v.

Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967). As discussed above, any alleged

failure about the extent or nature of the voir dire was either known to appellant at the time

of trial or was a fact which he was not unavoidably prevented from discovering.
Stark County, Case No. 2016CA00085                                                    9


       {¶21} Appellant’s assignment of error is overruled and the April 7, 2016 judgment

entry of the Alliance Municipal Court is affirmed.


By: Gwin, J.,

Farmer, P.J., and

Hoffman, J., concur
