[Cite as State v. Knuckles, 2014-Ohio-3823.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 101309




                                      STATE OF OHIO
                                                         PLAINTIFF-APPELLEE

                                                   vs.

                                 RODNEY KNUCKLES
                                                         DEFENDANT-APPELLANT




                                               JUDGMENT:
                                                DISMISSED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                  Case No. CR-81-164134-ZA

        BEFORE: Celebrezze, P.J., Rocco, J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED: September 4, 2014
FOR APPELLANT

Rodney Knuckles, pro se
Inmate No. 630-539
North Central Correctional Institution
P.O. Box 1812
Marion, Ohio 43301


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Mary McGrath
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.:

       {¶1} Appellant, Rodney Knuckles, a.k.a. Ricky Johnson, appeals the denial of his

successive postconviction relief petition. He argues that his petition is not barred by res

judicata because his conviction and sentence are void. After a thorough review of the

record and law, we dismiss this appeal.

                            I. Factual and Procedural History

       {¶2} In 1981, appellant was indicted for murder. A jury trial resulted in appellant

being found guilty of murder and sentenced to an indefinite prison term of 15 years to

life. This court reversed the conviction and remanded for a new trial in 1982. The trial

court’s docket indicates appellant waived his right to a jury trial, and a bench trial began

on March 4, 1983. Appellant was again found guilty of murder and sentenced to the

same 15 years to life.

       {¶3} Appellant’s first petition for postconviction relief was denied on February 28,

1985. His second petition was denied on May 3, 1985, with additional petitions denied

in 1991 and 1993. On May 20, 2013, appellant filed a motion titled “Motion Pursuant to

ORC 2945.05, That the Trial Court Was Without Jurisdiction to Conduct a Bench Trial.”

In what looks more like an appellate brief, appellant argued that there was no written jury

waiver executed in his case. That motion was denied. Appellant filed an appeal from

that decision on September 30, 2013. On November 26, 2013, this court dismissed the

appeal for appellant’s failure to file a brief.
      {¶4} On February 10, 2014, appellant filed another postconviction relief petition

making the same arguments raised in his May 20, 2013 motion. That petition was

denied, and the trial court issued lengthy findings of fact and conclusions of law

documenting appellant’s multiple successive petitions. The court found that appellant’s

claims should have been raised on direct appeal and, because they were not, they were

barred by res judicata. It also found that appellant’s multiple petitions making the same

argument also meant res judicata barred reargument.        Finally, the court found that

appellant’s petition was untimely. Appellant now appeals from that decision assigning

two errors for review:

      I. The trial court erred and abused its discretion when it barred appellants
      [sic] postconviction relief as successive and untimely filed under, R.C.
      2953.21(A)(2), by res judicata.

      II. Appellant states his conviction and sentence is “Void” for the courts
      failure to comply with the mandatory statute requirement of R.C. 2945.05,
      when it conducted a bench trial without a jury trial waiver, in violation of
      my 5th, 14th [sic] Amendments to the United States Constitution.

                                 II. Law and Analysis

      {¶5} Because appellant is attempting to use a successive petition for

postconviction relief as a means to circumvent the order previously dismissing his appeal,

this appeal must be dismissed.

      {¶6} Appellant’s May 20, 2013 motion and February 10, 2014 petition have

different wording, but the arguments advanced are the same — the clerk of courts failed

to provide appellant with a written jury waiver from his trial on request in 2013.
Appellant argues in both documents that this means there was no valid jury waiver in the

case and his conviction is void.

       {¶7} Recently, this court addressed a similar situation in State v. Smith, 8th Dist.

Cuyahoga No. 100792, 2014-Ohio-3041. Smith filed a Civ.R. 60(B) motion for relief

from his 1988 conviction because, among other things, a three-judge panel was not

convened to take his plea, he received ineffective assistance of counsel, his sentence was

void, and the common pleas court lacked jurisdiction over him. Id. at ¶ 7. The trial

court denied the motion, finding that res judicata applied to the arguments. Smith filed

an untimely appeal from that decision, which was dismissed by this court. Id. at ¶ 9.

Smith then refiled the same motion with a different title. Id. at ¶ 10. The court again

denied it, and Smith appealed to this court. This court found that

       Smith is “attempting to utilize the instant appeal to improperly seek review
       of alleged errors that he failed to timely appeal.” State v. Gray, 8th Dist.
       Cuyahoga No. 78467, 2001 Ohio App. LEXIS 2331 (May 24, 2001); see
       also State v. Marks, 8th Dist. Cuyahoga No. 99474, 2013-Ohio-3734, ¶ 6;
       Rocky River v. Garnek, 8th Dist. Cuyahoga No. 97540, 2012-Ohio-3079, ¶
       5; State v. Lenard, 8th Dist. Cuyahoga No. 93373, 2010-Ohio-2220, ¶ 14,
       15; compare State v. Werber, 8th Dist. Cuyahoga No. 100290,
       2014-Ohio-609 (this court addressed appellant’s timely appeal from the trial
       court’s denial of his first “motion to vacate judgment” made pursuant to
       Civ.R. 60(B)(5)). As this court observed in State v. Church, 8th Dist.
       Cuyahoga No. 68590, 1995 Ohio App. LEXIS 4838 (Nov. 2, 1995):

              “This type of ‘bootstrapping’ to wit, the utilization of a subsequent
       order to indirectly and untimely appeal a prior order (which was never
       directly appealed) is procedurally anomalous and inconsistent with the
       appellate rules which contemplate a direct relationship between the order
       from which the appeal is taken and the error assigned as a result of that
       order.” See, Appellate Rules 3(D), 4(A), 5 and 16(A)(3).

Id. at ¶ 12.
       {¶8} Here, appellant’s previous appeal from the denial of his motion was

dismissed because he failed to file a brief. Filing a second motion making the same

arguments does not grant appellant a second chance to have the issues raised therein

reheard on appeal. This blatant attempt to circumvent the appellate rules and prior

decisions of this court requires the dismissal of the instant appeal.

       {¶9} Accordingly, the appeal is dismissed.

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

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

the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

KENNETH A. ROCCO, J., and
EILEEN T. GALLAGHER, J., CONCUR
