[Cite as State v. Johnson, 2020-Ohio-3371.]

                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                      :

                 Plaintiff-Appellee,                :
                                                             No. 109084
                 v.                                 :

RANAU D. JOHNSON,                                   :

                 Defendant-Appellant.               :


                               JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: June 18, 2020


            Civil Appeal from the Cuyahoga County Court of Common Pleas
                               Case No. CR-17-613109-A


                                              Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Gregory Ochocki, Assistant Prosecuting
                 Attorney, for appellee.

                 William Norman, for appellant.
RAYMOND C. HEADEN, J.:

               Defendant-appellant Ranau D. Johnson (“Johnson”) appeals from

the denial of his motion to amend his postconviction relief petition, and second

motion for a new trial. For the reasons that follow, we affirm.

Procedural and Substantive History

               This case is the fifth appeal that has stemmed from Johnson’s 2017

conviction and sentence for attempted felony murder and aggravated arson. On

January 24, 2017, the Cuyahoga County Grand Jury indicted Johnson on one count

of attempted felony murder in violation of R.C. 2923.02 and R.C. 2903.02, two

counts of aggravated arson in violation of R.C. 2909.02(A)(1), and one count of

aggravated arson in violation of R.C. 2909.02(A)(2). The charges arose out of an

incident in which Johnson poured gasoline into the basement window of a home

occupied by his former girlfriend and her uncle, and then set the gasoline on fire.

               Johnson pleaded not guilty to all four counts. Johnson executed a

written waiver of his right to a jury trial, and the case proceeded to a bench trial. On

August 30, 2017, the court found Johnson guilty of all four counts. On September

28, 2017, the court sentenced Johnson to ten years in prison on Count 1, ten years

in prison on Count 3, and seven years in prison on Count 4; Count 2 merged with

Count 1. The court ordered all terms to run consecutively for an aggregate term of

27 years. The court also ordered Johnson to pay $5,000 in restitution.

               Johnson appealed from his convictions and sentence, challenging the

sufficiency and manifest weight of the evidence, the admission of expert testimony
at trial, and the imposition of consecutive sentences and restitution. State v.

Johnson, 2018-Ohio-3670, 119 N.E.3d 914 (8th Dist.) (“Johnson I”). This court

vacated Johnson’s conviction for Count 1 because attempted felony murder is not a

cognizable crime under Ohio law. Id. at ¶ 5. This court affirmed Johnson’s

convictions on all three of the aggravated arson counts, finding that his convictions

were supported by sufficient evidence, and were not against the manifest weight of

the evidence. Id. at ¶ 30, 38. Finally, this court found that the trial court properly

imposed consecutive sentences on Counts 3 and 4, but had improperly ordered

Johnson to pay $5,000 restitution because the state failed to present sufficient

evidence to allow the trial court to discern the appropriate amount of restitution to

a reasonable degree of certainty. Id. at ¶ 53, 57.

               Accordingly, this court vacated Johnson’s conviction and sentence for

Count 1, attempted felony murder; reversed the restitution award; and remanded

the case to the trial court for a resentencing hearing on Count 2 and for an

evidentiary hearing to determine the appropriate amount of restitution. Id. at ¶ 58.

               On December 11, 2018, the trial court stated that Counts 1 and 2

merged for purposes of sentencing, pursuant to this court’s opinion, and proceeded

to sentence Johnson on Counts 2, 3, and 4. The court sentenced Johnson to ten

years on Count 2, ten years on Count 3, and seven years on Count 4, to be served

consecutively, for an aggregate term of 27 years. At the resentencing hearing, the

state conceded that it did not have evidence regarding restitution, and therefore, did

not request restitution. The court did not order any restitution, although the journal
entry from the resentencing reflected that Johnson was ordered to pay $5,000

restitution.

               On January 17, 2019, Johnson filed a petition for postconviction

relief, in which he argued that the state’s expert witness failed to properly investigate

the fire, that his aggravated arson convictions should have merged for sentencing,

that he was never informed of the charges against him, and that his Fifth

Amendment rights were violated.

               On January 24, 2019, Johnson filed his second appeal, which this

court dismissed as untimely. On February 21, 2019, Johnson filed a motion for a

new trial, in which he argued that he was not in the area at the time the fire was set.

On February 25, 2019, the trial court denied this motion.

               On March 14, 2019, Johnson filed his third appeal, raising seven

assignments of error. Johnson argued that the court committed plain error in

sentencing him on the vacated count, that the court erred in ordering restitution,

that his jury waiver was constitutionally invalid, that he should only have been

convicted of one count of aggravated arson, that his offenses for aggravated arson

should have merged for sentencing, and that he received ineffective assistance of

counsel. This court held that the trial court exceeded the scope of the remand from

Johnson I by conducting a de novo sentencing on all counts, including those that

were not part of the limited remand order. State v. Johnson, 8th Dist. Cuyahoga

No. 108311, 2020-Ohio-568, ¶ 8 (“Johnson II”). This court vacated Johnson’s
sentence on Count 2, and remanded the case to the trial court for resentencing on

Count 2 only.

                On March 20, 2019, Johnson filed his fourth appeal, which this court

dismissed as being duplicative of his third appeal on April 16, 2019.

                On August 28, 2019, while Johnson II was pending, Johnson filed a

motion for leave to file a second motion for a new trial, in which he argued that his

jury waiver was constitutionally invalid. The same day, Johnson also filed a motion

for leave to amend his petition for postconviction relief, again arguing that his jury

waiver was constitutionally invalid. On September 13, 2019, the trial court denied

Johnson’s amended petition for postconviction relief and his motion for leave to file

a motion for a new trial. It is from these denials that Johnson appeals now,

presenting the following assignments of error for our review:

      ASSIGNMENT OF ERROR NO. 1

      The trial court erred by refusing appellant Johnson leave to file a
      motion for a new trial where: (a) appellant Johnson was unavoidably
      prevented from discovering evidence warranting a new trial within the
      initial 14 day clock of Ohio Crim.R. 33(A)(1), (2), (3) and (5); and (b) a
      manifest miscarriage of justice occurred, including an error in the
      exercise of jurisdiction, where, due to misrepresentations by the court,
      defense counsel, and the prosecutor, appellant Johnson waived his
      constitutional right to trial by jury in apprehension of conviction and
      penalty for a nonexistent offense.

      ASSIGNMENT OF ERROR NO. 2

      The trial court erred by denying appellant Johnson’s motion for leave
      to file a motion for a new trial without conducting an evidentiary
      hearing where, if true, appellant Johnson’s operative facts required
      relief and could not have been discovered with due diligence prior to
      the time the initial 14 day clock for filing a motion for a new trial
      expired.

      ASSIGNMENT OF ERROR NO. 3

      The trial court erred by refusing appellant Johnson leave to amend his
      petition for postconviction relief where: (a) appellant Johnson was
      unavoidably prevented from discovering evidence warranting a new
      trial within the initial one year clock of O.R.C. 2953.21(A)(2); and (b) a
      manifest miscarriage of justice occurred, including an error in the
      exercise of jurisdiction, where, due to misrepresentations by the court,
      defense counsel, and the prosecutor, appellant Johnson waived his
      constitutional right to trial by jury in apprehension of conviction and
      penalty for a non-existent offense.

      ASSIGNMENT OF ERROR NO. 4

      The trial court erred by denying appellant Johnson’s petition for
      postconviction relief without conducting an evidentiary hearing where,
      if true, appellant Johnson’s operative facts entitled him to some form
      of relief.

Law and Analysis

               In his first two assignments of error, Johnson challenges the trial

court’s denial of his motion for leave to file a motion for a new trial. In his first

assignment of error, Johnson argues that it was error for the court to deny his

motion for leave. In his second assignment of error, Johnson argues that it was error

for the court to deny his motion without holding an evidentiary hearing. Johnson

filed his motion for leave to file a motion for a new trial on August 28, 2019, while

his appeal (Johnson II) was pending. That appeal remained pending when the trial

court denied the motion on September 13, 2019.

               It is well established that once an appeal is taken, the trial court is

divested of jurisdiction until the case is remanded to it by the appellate court, except
where the retention of jurisdiction is not inconsistent with that of the appellate court

to review, affirm, modify, or reverse the order from which the appeal is perfected.

State v. Abboud, 8th Dist. Cuyahoga Nos. 87660 and 88078, 2006-Ohio-6587, ¶ 11,

citing State v. Taogaga, 8th Dist. Cuyahoga No. 79845, 2002-Ohio-5062, ¶ 18. A

motion for a new trial is inconsistent with a notice of appeal of the judgment sought

to be retried. Id., citing State v. Loper, 8th Dist. Cuyahoga Nos. 81297, 81400, and

81878, 2003-Ohio-3213, ¶ 104. A motion for leave to file a motion for a new trial,

however, does not obviate a currently pending appeal. State v. Lamar, 4th Dist.

Lawrence No. 01CZ17, 2002-Ohio-6130, ¶ 25, citing State ex rel. Special

Prosecutors v. Judges, Court of Common Pleas, 55 Ohio St.2d 94, 97, 378 N.E.2d

162 (1978); Howard v. Catholic Social Servs., 70 Ohio St.3d 141, 145, 637 N.E.2d

890 (1994).

               Therefore, although Johnson’s third appeal was still pending, the trial

court had jurisdiction to consider his motion for leave to file a motion for a new trial.

Crim.R. 33 governs motions for new trials and provides that motions for new trials

based on newly discovered evidence must be filed within 120 days of a jury verdict,

unless the petitioner establishes by clear and convincing proof that they were

unavoidably prevented from discovering the evidence. Crim.R. 33(B). The trial

court has sound discretion on the question of whether to grant an evidentiary

hearing on a request for leave to file a delayed motion for a new trial, and we will not

disturb the trial court’s decision absent an abuse of discretion. State v. Bonnell, 8th
Dist. Cuyahoga No. 108209, 2019-Ohio-5342, ¶ 37, citing State v. Hill, 8th Dist.

Cuyahoga No. 102083, 2015-Ohio-1652, ¶ 16.

              Johnson sought leave to file a motion for a new trial on the basis of a

claimed jurisdictional error due to his vacated conviction for attempted felony

murder.    Specifically, he raised an argument that his jury waiver was not

constitutionally valid. As noted above, this argument was unsuccessful in Johnson

II. Further, although Johnson cited the vacation of his conviction in Johnson I as

having revealed the alleged jurisdictional error, he made no attempt to justify filing

a second motion for a new trial almost one year after this revelation. Therefore, the

trial court did not abuse its discretion in denying Johnson’s motion for leave to file

a motion for a new trial without holding an evidentiary hearing. Johnson’s first and

second assignments of error are overruled.

              In Johnson’s third assignment of error, he argues that the trial court

erred by refusing him leave to amend his petition for postconviction relief. The

docket does not reflect that the trial court denied him leave to amend his petition.

Instead, it shows that the trial court denied his amended petition. In Johnson’s

fourth assignment of error, he argues that the trial court erred by denying his

petition for postconviction relief without conducting an evidentiary hearing. We will

address these assignments of error together.

              Although the trial court denied the amended petition while Johnson’s

third appeal was pending, the pending appeal did not divest the trial court of

jurisdiction to consider the postconviction relief petition. The postconviction relief
process is a collateral civil proceeding, and therefore, it is not inconsistent with the

trial court’s jurisdiction over a criminal conviction and sentence. State v. Phipps,

10th Dist. Franklin No. 15AP-524, 2016-Ohio-663, ¶ 13.

               We review a trial court’s denial of a postconviction relief petition for

an abuse of discretion. State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905

(1999). A trial court abuses its discretion when its judgment is unreasonable,

arbitrary, or unconscionable. State v. White, 118 Ohio St.3d 12, 2008-Ohio-1623,

885 N.E.2d 905, ¶ 46.

               In his amended petition, Johnson argued that the waiver of his right

to a jury trial was not knowing, intelligent, or voluntary. Specifically, Johnson

argues that because he was not informed that Count 1 charged him with attempted

felony murder, which is not a cognizable offense in Ohio, his jury waiver was not

constitutionally valid.

               This argument was raised in Johnson’s third appeal and this court

found that it was barred by res judicata and, moreover, failed on its merits. Johnson

II, 8th Dist. Cuyahoga No. 108311, 2020-Ohio-568, at ¶ 16, 17. Res judicata again

bars Johnson’s claim in the instant appeal.         Constitutional issues cannot be

considered in postconviction relief proceedings where they have already been or

could have already been litigated by the convicted defendant, either before

conviction or on direct appeal. State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-

7658, 71 N.E.3d 234, ¶ 89, citing State v. Lott, 97 Ohio St.3d 303, 2002-Ohio-6625,

779 N.E.2d 1011, ¶ 19, citing State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967),
paragraph seven of the syllabus. Because Johnson’s amended petition raised an

argument that has already been litigated and found meritless, the trial court did not

abuse its discretion in denying the petition without conducting an evidentiary

hearing. Johnson’s third and fourth assignments of error are overruled.

              Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.          The defendant’s

conviction having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



RAYMOND C. HEADEN, JUDGE

SEAN C. GALLAGHER, P.J., and
MICHELLE J. SHEEHAN, J., CONCUR
