[Cite as State v. Jones, 2019-Ohio-2250.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      CLARK COUNTY

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :   Appellate Case No. 2018-CA-119
                                                  :
 v.                                               :   Trial Court Case No. 2012-CR-55
                                                  :
 TIMOTHY JONES                                    :   (Criminal Appeal from
                                                  :   Common Pleas Court)
         Defendant-Appellant                      :
                                                  :

                                             ...........

                                            OPINION

                              Rendered on the 7th day of June, 2019.

                                             ...........

JOHN M. LINTZ, Atty. Reg. No. 0097715, Assistant Prosecuting Attorney, Clark County
Prosecutor’s Office, Appellate Division, 50 East Columbia Street, Suite 449, Springfield,
Ohio 45502
      Attorney for Plaintiff-Appellee

TIMOTHY JONES, #667-311, P.O. Box 69, London, Ohio 43140
     Defendant-Appellant, Pro Se

                                            .............

DONOVAN, J.
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       {¶ 1} Defendant-appellant Timothy Jones, pro se, appeals from a judgment of the

Clark County Court of Common Pleas, which overruled his petition for postconviction

relief/motion to vacate or set aside sentence. Jones filed a timely notice of appeal on

November 15, 2018.

       {¶ 2} In August 2012, a jury found Jones guilty of two counts of aggravated murder

and one count of having a weapon under disability. Each count of aggravated murder was

accompanied by a firearm specification. Jones was sentenced to life in prison without

the possibility of parole on each of the aggravated murder counts, to three years on the

firearm specification, and to three years on the single count of having a weapon under

disability. The trial court ordered the sentences for aggravated murder and the firearm

specification to run consecutively to each other, and the sentence for the weapon under

disability count to run concurrently to the life sentences. The trial court also ordered

Jones to pay court costs and attorney’s fees.

       {¶ 3} Jones filed a direct appeal. In State v. Jones, 2d Dist. Clark No. 2012 CA

61, 2013-Ohio-4820 (hereinafter “Jones I”), decided on November 1, 2013, we reversed

that portion of the trial court’s judgment imposing consecutive sentences, as well as the

imposition of court costs and attorney’s fees, and remanded the matter for resentencing;

we affirmed the trial court’s judgment in all other respects.

       {¶ 4} On November 6, 2013, the trial court issued a “supplement” to its sentencing

entry which purported to address the lack of findings to support the imposition of

consecutive sentences.      In 2015, Jones filed a federal habeas petition which was

ultimately denied. See Jones v. Warden, Ross Correctional Inst., S.D.Ohio No. 3:15-cv-

164 (March 31, 2016). Thereafter, Jones filed a motion for a delayed appeal of the
                                                                                          -3-


district court’s ruling and a motion for relief pursuant to Fed.R.Civ.P. 60(b). Neither

motion was successful. See Jones v. Hooks, 6th Cir. No. 16-3798 (September 21, 2016);

Jones v. Warden, Ross Correctional Inst., 6th Cir. No. 17-3518 (December 4, 2017).

       {¶ 5} On January 29, 2018, the trial court held a resentencing hearing for Jones in

light of our opinion in Jones I.    The trial court provided no reason for the delay in

complying with our remand. Mirroring the original sentence, the trial court imposed two

life sentences, accompanied by one three-year firearm specification. The trial court also

ordered those sentences be served consecutively. The trial court made the appropriate

findings in support of consecutive sentences. The trial court also ordered Jones to serve

a three-year prison term for his conviction for having a weapon under disability, which

was to be served concurrently to the other sentences. The trial court did not order Jones

to pay court costs or attorney’s fees.

       {¶ 6} Pertinent to the instant appeal, on October 17, 2018, Jones filed a petition

for postconviction relief/motion to vacate or set aside sentence. On October 23, 2018,

the trial court overruled Jones’s petition for postconviction relief/motion to vacate or set

aside sentence without a hearing, finding that his claims were barred by res judicata.

       {¶ 7} It is from this judgment that Jones now appeals.

       {¶ 8} Because they are interrelated, Jones’s first and third assignments of error will

be discussed together:

              THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

       DEFENDANT-APPELLANT IN VIOLATION OF HIS ABSOLUTE RIGHT TO

       PROCEDURAL DUE PROCESS OF LAW IN SUMMARILY DISMISSING

       HIS PETITION FOR POSTCONVICTION RELIEF SUA SPONTE ON RES
                                                                                            -4-


       JUDICATA GROUNDS.

              IT WAS PLAIN ERROR FOR THE TRIAL COURT NOT TO ORDER

       AN EVIDENTIARY HEARING AND GRANT APPELLANT RELIEF IN

       VIOLATION OF HIS ABSOLUTE RIGHT TO PROCEDURAL DUE

       PROCESS OF LAW AS GUARANTEED BY ARTICLE I, §16, OHIO

       CONSTITUTION AS WELL               AS THE 14TH AMENDMENT, U.S.

       CONSTITUTION.

       {¶ 9} In his first assignment, Jones argues that he received ineffective assistance

of counsel because his trial counsel failed to file a pretrial motion to suppress evidence

seized as a result of a search warrant. In his third assignment, Jones argues that his

conviction and sentence were “entirely void” because “he was tried without the assistance

of legal counsel and no valid waiver [of counsel] was executed.”            In light of these

arguments, Jones contends that the trial court erred when it overruled his petition for

postconviction relief/motion to vacate or set aside sentence without a hearing.

       {¶ 10} R.C. 2953.21(A)(1)(a) provides that “[a]ny person who has been convicted

of a criminal offense * * * may file a petition in the court that imposed sentence, stating

the grounds for relief relied upon, and asking the court to vacate or set aside the judgment

or sentence or to grant other appropriate relief.” The statute further provides that the

“petitioner may file a supporting affidavit and other documentary evidence in support of

the claim for relief.” “We review trial court decisions on petitions for post-conviction relief

under an abuse of discretion standard.” (Citations omitted.) State v. Perkins, 2d Dist.

Montgomery No. 25808, 2014-Ohio-1863, ¶ 27. “The term ‘abuse of discretion’ has been

defined as a decision that is unreasonable, arbitrary, or unconscionable.” (Citation
                                                                                           -5-

omitted.) State v. Howard, 2d Dist. Montgomery No. 26060, 2014-Ohio-4602, ¶ 8.

       {¶ 11} R.C. 2953.21(C) provides:

       The court shall consider a petition that is timely filed under division (A)(2) of

       this section even if a direct appeal of the judgment is pending. Before

       granting a hearing on a petition filed under division (A) of this section, the

       court shall determine whether there are substantive grounds for relief. In

       making such a determination, the court shall consider, in addition to the

       petition, the supporting affidavits, and the documentary evidence, all the

       files and records pertaining to the proceedings against the petitioner,

       including, but not limited to, the indictment, the court's journal entries, the

       journalized records of the clerk of the court, and the court reporter's

       transcript. * * * If the court dismisses the petition, it shall make and file

       findings of fact and conclusions of law with respect to such dismissal.

       {¶ 12} “A postconviction proceeding is not an appeal of a criminal conviction, but,

rather, a collateral civil attack on the judgment.” State v. Stefen, 70 Ohio St.3d 399, 410,

639 N.E.2d 67 (1994); see also State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679,

860 N.E.2d 77, ¶ 48. To prevail on a petition for postconviction relief, the defendant must

establish a violation of his constitutional rights which renders the judgment of conviction

void or voidable. R.C. 2953.21.

       {¶ 13} The postconviction relief statutes do “not expressly mandate a hearing for

every post-conviction relief petition and, therefore, a hearing is not automatically

required.” State v. Jackson, 64 Ohio St.2d 107, 110, 413 N.E.2d 819 (1980). Rather, in

addressing a petition for postconviction relief, a trial court plays a gatekeeping role as to
                                                                                            -6-

whether a defendant will receive a hearing. Gondor at ¶ 51. A trial court may dismiss a

petition for postconviction relief without a hearing “where the petition, the supporting

affidavits, the documentary evidence, the files, and the records do not demonstrate that

petitioner set forth sufficient operative facts to establish substantive grounds for relief.”

State v. Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905 (1999), paragraph two of the

syllabus; Gondor at ¶ 51.

       {¶ 14} Initially, we note that Jones failed to attach to his petition for postconviction

relief any supporting affidavits and/or other documentary evidence in support of his claims

for relief. More importantly, Jones’s argument is barred by res judicata because he was

required to raise the above arguments during his direct appeal. See State v. Reid, 2d

Dist. Montgomery No. 25790, 2014-Ohio-1282, ¶ 7-9. In Reid, we stated the following:

              “Pursuant to the doctrine of res judicata, a valid final judgment on the

       merits bars all subsequent actions based on any claim arising out of the

       transaction or occurrence that was the subject matter of the previous

       action.” State v. Collins, 2d Dist. Montgomery No. 25612, 2013-Ohio-3645,

       ¶ 9, citing Grava v. Parkman Twp., 73 Ohio St.3d 379, 382, 653 N.E.2d 226

       (1995). Moreover, “[a]rguments challenging the imposition of a sentence

       that is voidable are barred by the doctrine of res judicata if not raised on

       direct appeal.” State v. Simons, 2d Dist. Champaign No. 2013 CA 5, 2013-

       Ohio-3654, ¶ 42, citing State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-

       1197, 884 N.E.2d 568, ¶ 30. (Other citation omitted.)          In other words,

       “defendants with a voidable sentence are entitled to re-sentencing only

       upon a successful challenge on direct appeal.” Id. at ¶ 40, quoting State v.
                                                                                         -7-

       Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 30.

Reid at ¶ 7.

       {¶ 15} As previously noted, Jones has failed to produce any additional evidence

from outside of the record in support of his claims that he was denied the effective

assistance of counsel and that he was tried and convicted without the benefit of counsel

with no proper waiver executed. Upon review, we therefore conclude that Jones’s claims

are barred by res judicata. Accordingly, the trial court did not err when it overruled

Jones’s petition for postconviction relief/motion to vacate or set aside sentence.

       {¶ 16} Jones’s first and third assignments of error are overruled.

       {¶ 17} Jones’s second assignment of error is as follows:

       IT WAS PLAIN ERROR FOR THE TRIAL COURT TO GRANT THE STATE

       OF      OHIO   A   SUMMARY JUDGMENT            IN   VIOLATION         OF THE

       DEFENDANT-APPELLANT’S ABSOLUTE RIGHT TO PROCEDURAL

       DUE PROCESS OF LAW AS GUARANTEED BY ARTICLE I, §16, OHIO

       CONSTITUTION AS WELL AS THE 14TH AMENDMENT, UNITED

       STATES CONSTITUTION.

       {¶ 18} In his second assignment, Jones argues that the trial court erred when it

granted summary judgment to the State regarding Jones’s claims as set forth in his

petition for postconviction relief/motion to vacate or set aside sentence.

       {¶ 19} Having reviewed the record before us, we find that no motion for summary

judgment was ever filed by the State the instant case; if said motion was never filed, it

follows the trial court could not and did not grant summary judgment against Jones

pursuant to a motion filed by the State. Rather, the trial court decided the petition on the
                                                                                      -8-


merits, having concluded that an evidentiary hearing was not required. Accordingly,

there is no basis for Jones’s argument, and we need not address it any further.

       {¶ 20} Jones’s second assignment of error is overruled.

       {¶ 21} All of Jones’s assignments of error having been overruled, the judgment of

the trial court is affirmed.

                                    .............



WELBAUM, P.J. and HALL, J., concur.



Copies sent to:

John M. Lintz
Timothy Jones
Hon. Douglas M. Rastatter
