[Cite as State v. Carter, 2017-Ohio-4354.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                ALLEN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 1-17-09

        v.

DAMION LAMARR CARTER,                                      OPINION

        DEFENDANT-APPELLANT.




                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR96 01 0007

                                       Judgment Affirmed

                              Date of Decision: June 19, 2017




APPEARANCES:

        Damion Lamarr Carter, Appellant

        Jana E. Emerick for Appellee
Case No. 1-17-09


SHAW, J.

       {¶1} Defendant-appellant, Damion Lamarr Carter (“Carter”), brings this

appeal from the February 8, 2017, judgment of the Allen County Common Pleas

Court denying Carter’s petition for post-conviction relief related to a 1996 murder

conviction. On appeal, Carter argues, inter alia, that his guilty plea was not

knowingly, intelligently, and voluntarily entered, that he received ineffective

assistance of counsel during his original court proceedings, and that the trial court

erred when it failed to hold an evidentiary hearing pursuant to R.C. 2945.71.

                                 Procedural History

       {¶2} On January 11, 1996, Carter was indicted for Aggravated Murder in

violation of R.C. 2903.01(B) with a firearm specification. On March 8, 1996, Carter

pled guilty to the amended charge of Murder in violation of R.C. 2903.02(A) with

a firearm specification. Cater was sentenced to serve 15 years to life on the Murder

conviction and a mandatory 3-year prison term on the firearm specification. The

prison terms were ordered to be served consecutive to each other for an aggregate

prison term of 18 years to life. Carter did not file a direct appeal of his conviction

or sentence to this court.

       {¶3} Since his initial sentencing, Carter has filed multiple petitions for post-

conviction relief and multiple motions to withdraw his guilty plea. First, in 1999

Carter filed a “Petition to Vacate or Set Aside Sentence.” In the petition, Carter


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argued that he received ineffective assistance of counsel at the trial court level. The

trial court denied Carter’s petition, considering it both as a post-conviction petition

and as a motion to withdraw his guilty plea. Carter filed for reconsideration with

the trial court, which was denied, then he filed an untimely appeal to this Court,

which was dismissed.

       {¶4} In October of 2007, Carter filed another petition for post-conviction

relief. The trial court found that the petition was untimely and noted that it could

dismiss the petition; however, the trial court also found that Carter’s arguments were

barred by res judicata. The trial court thus denied Carter’s petition.

       {¶5} In September of 2012, Carter filed a motion to withdraw his guilty plea

arguing, inter alia, that his right to a speedy trial had been violated. Carter’s motion

was denied, with the trial court finding that Carter’s plea was knowingly and

voluntarily entered. Carter appealed to this Court in State v. Carter, 3d Dist. Allen

No. 1-12-43 (Mar. 11, 2013), and we affirmed the trial court’s denial of Carter’s

motion to withdraw his guilty plea.

       {¶6} Carter then filed another motion to withdraw his guilty plea in August

of 2013, arguing, inter alia, that his plea was not knowing, voluntary, and intelligent

due to ineffective assistance of counsel. That motion was denied by the trial court

as having no merit even if it was not barred by res judicata. Carter appealed to this

Court and this Court dismissed the appeal.


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        {¶7} In October of 2013, Carter filed a third petition for post-conviction

relief. The trial court again denied Carter’s petition and he appealed to this Court.

We again dismissed Carter’s petition finding that “[t]he trial court and this Court on

appeal have already determined that, for numerous reasons, there is no merit to

Appellant’s request for post-conviction relief.” State v. Carter, 3d Dist. Allen No.

1-13-57 (Nov. 19, 2013).

        {¶8} On February 6, 2017, Carter filed yet another petition for post-

conviction relief. The trial court denied Carter’s motion, providing a thorough

explanation that Carter’s petition was untimely by well over a decade and that he

failed to demonstrate any exceptions allowing filing outside of the 365-day time

limit.1 The trial court also found that Carter’s arguments were barred by res judicata.

The trial court’s judgment entry denying Carter’s petition was filed February 8,

2017.     It is from this judgment that Carter appeals asserting the following

assignments of error for our review.

                            Assignment of Error No. 1
        Carter’s guilty plea was not [entered] knowingly, intelligently,
        and voluntarily it was the product of government interference
        with R.C. §2945.71, Carter’s right to effective assistance of
        counsel for his defense, right to a fair and speedy trial, right to
        due process and equal protection of the law under the Fifth, Sixth,
        and Fourteenth Amendments to the United States Constitution
        and Article I §10 of the Constitution of the State of Ohio.



1
 At the time of Carter’s conviction, the time limit was only 180 days. Regardless of which time limit was
applied here, Carter is far beyond the requisite limit.

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                           Assignment of Error No. 2
       Carter’s guilty plea was not [entered] knowingly, intelligently,
       and voluntarily it was the product of coercion by defense counsel
       Maria Santo who had purposely and wantonly provided Carter
       with erroneous advice and assistance to deny Carter a dismissal
       and discharge pursuant to R.C. §2945.71, right to effective
       assistance of counsel for his defense, and the right to a fair and
       speedy trial in violation of Carter’s Sixth and Fourteenth
       Amendment to the United States Constitution and Article I §10 of
       the Constitution of the State of Ohio.

                          Assignment of Error No. 3
       Trial Court erred prejudice [sic] when it denied Carter an
       evidentiary hearing on a R.C. §2945.71 violation.

       {¶9} Due to the disposition we will address all of the assignments of error

together.

                   First, Second, and Third Assignments of Error

       {¶10} In Carter’s assignments of error he makes various contentions arguing

that his conviction should be overturned or that he should be at least allowed to

withdraw his guilty plea. Carter has made the same or similar arguments numerous

times to the trial court and to this Court in the past. As the procedural history of this

case demonstrates, we have repeatedly found that Carter’s post-conviction petitions

are untimely, that Carter has demonstrated no exception to the post-conviction

timelines, and that even if the petitions were timely, the arguments contained therein

are barred by res judicata.

       {¶11} The same analysis that this Court has referenced in the previous Carter

decisions is applicable here. Carter’s petition is untimely. “Failure to file on time

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negates the jurisdiction of the trial court to consider the petition, unless the

untimeliness is excused under R.C. § 2953.23(A)(1)(a).” State v. Brown, 2d Dist.

Darke No. 1747, 2009–Ohio–3430, ¶ 17 (citation omitted). While exceptions to the

time limits for post-conviction relief petitions exist as stated in R.C. 2953.23, none

of them are applicable here. Therefore, the proper action by the trial court would

have been to dismiss Carter’s petition.

       {¶12} Although trial courts should technically dismiss untimely post-

conviction motions for lack of jurisdiction, a trial court does not commit reversible

error by denying an untimely post-conviction petition. See, e.g., State v. Hatfield,

10th Dist. No. 07AP-784, 2008-Ohio-1377, ¶ 8, citing State v. Hamilton, 10th Dist.

No. 03AP-852, 2004-Ohio-2573, ¶ 9 and State v. Hensley, 9th Dist. No.

03CA008293, 2003-Ohio-6457, ¶ 7.          Here, while the trial court should have

dismissed Carter’s petition due to a lack of jurisdiction, the trial court proceeded to

address Carter’s arguments and determined that his arguments were barred by the

doctrine of res judicata as they could have been raised on a timely, direct appeal.

State v. Perry, 10 Ohio St.2d 175 (1967) (“Under 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 the trial, which resulted in that judgment of conviction,


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or on an appeal from that judgment.”). We agree with the trial court that even if

Carter’s claims were timely, they are barred by res judicata. His assignments of

error are thus not well-taken, and they are all overruled.

                                     Conclusion

       {¶13} For the foregoing reasons Carter’s assignments of error are overruled

and the judgment of the Allen County Common Pleas Court is affirmed.

                                                              Judgment Affirmed

PRESTON, P.J. and WILLAMOWSKI, J., concur.

/jlr




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