[Cite as State v. Snyder, 2016-Ohio-832.]


                                        COURT OF APPEALS
                                   TUSCARAWAS COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. Patricia A. Delaney, J.
                          Plaintiff-Appellee   :       Hon. Craig R. Baldwin, J.
                                               :
-vs-                                           :
                                               :       Case No. 2015AP070043
EUGENE SNYDER, JR.                             :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Tuscarawas
                                                   County Court of Common Pleas, Case No.
                                                   2009CR110298

JUDGMENT:                                          Affirmed



DATE OF JUDGMENT ENTRY:                            March 1, 2016



APPEARANCES:

For Plaintiff-Appellant                            For Defendant-Appellee

RYAN D. STYER                                      EUGENE SNYDER, JR. #628-728 Pro Se
Tuscarawas County Prosecutor                       Ross Correctional Institution
125 E. High Avenue                                 Box 7010
New Philadelphia, OH 44663                         Chillicothe, OH 45601
Tuscarawas County, Case No. 2015AP070043                                                   2

Gwin, P.J.

       {¶1}   Defendant-appellant Eugene Snyder, Jr. appeals from the June 30, 2015

Judgment Entry of the Tuscarawas County Court of Common Pleas overruling his Motion

for Post-Conviction Relief pursuant to R.C. 2953.21. Plaintiff-appellee is the State of Ohio.

                                  Facts and Procedural History

       {¶2}   A jury convicted Snyder of one count of aggravated murder in violation of

R.C. 2903.01, with a firearm specification pursuant to R.C. 2941.145, and one count of

felonious assault in violation of R.C. 2903.11(A)(2), with a firearm specification pursuant

to R.C. 2941.145. Snyder entered a plea of guilty, pursuant to North Carolina v. Alford,

400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to five counts of tampering with

evidence in violation of R.C. 2921.12. State v. Snyder, 5th Dist. Tuscarawas No.

10AP060021, 2011-Ohio-3334 [“Snyder I”].

       {¶3}   On direct appeal, Snyder raised the following assignments of error,

              I. THE TRIAL COURT VIOLATED THE APPELLANT’S DUE

       PROCESS RIGHTS WHEN IT IMPROPERLY INSTRUCTED THE JURY

       WITH REGARDS TO AGGRAVATED MURDER.

              II. THE TRIAL COURT VIOLATED THE APPELLANT’S DUE

       PROCESS       RIGHTS      WHEN      IT   FAILED     TO     PROVIDE      JURY

       INSTRUCTIONS            OF        MANSLAUGHTER,              INVOLUNTARY

       MANSLAUGHTER AND SELF–DEFENSE TO THE JURY.

              III. THE TRIAL COURT ABUSED ITS DISCRETION AND DENIED

       THE APPELLANT HIS DUE PROCESS RIGHTS TO A FAIR TRIAL BY

       FAILING TO GRANT HIS MOTION FOR MISTRIAL.
Tuscarawas County, Case No. 2015AP070043                                            3


              IV. THE TRIAL COURT ABUSED ITS DISCRETION AND DENIED

       THE APPELLANT HIS DUE PROCESS RIGHTS TO A FAIR TRIAL BY

       ALLOWING TESTIMONY IN VIOLATION OF EVIDENCE RULE 401 AND

       403.

              V. THE TRIAL COURT ABUSED ITS DISCRETION AND DENIED

       THE APPELLANT HIS DUE PROCESS RIGHTS TO A FAIR TRIAL BY

       NOT    ALLOWING       EVIDENCE    OF    THE    VICTIM’S   CHARACTER

       REGARDING SPECIFIC INSTANCES OF CONDUCT RELATED TO THE

       VICTIM’S CHARACTER AS IT RELATES TO A CLAIM FOR SELF–

       DEFENSE OFFERED BY THE APPELLANT.

              VI. THE EVIDENCE IS INSUFFICIENT TO SUSTAIN THE

       CONVICTION AND THE VERDICT IS AGAINST THE MANIFEST WEIGHT

       OF EVIDENCE.

       {¶4}   On June 30, 2011, this Court affirmed Snyder’s conviction and sentence.

Snyder I.

       {¶5}   On July 27, 2011, Snyder, acting pro se, filed a notice of appeal to the

Supreme Court of Ohio. State v. Snyder, 130 Ohio St.3d 1418, 2011-Ohio-5605, 956

N.E.2d 309(Table). In his memorandum in support of jurisdiction, Snyder raised the

following propositions of law:

              1. THE TRIAL COURT VIOLATED THE APPELLANT’S DUE

       PROCESS RIGHTS WHEN IT IMPROPERLY INSTRUCTED THE JURY

       WITH REGARDS TO AGGRAVATED MURDER.
Tuscarawas County, Case No. 2015AP070043                                          4


              2. THE TRIAL COURT VIOLATED THE APPELLANT’S DUE

       PROCESS       RIGHTS      WHEN      IT   FAILED   TO   PROVIDE   JURY

       INSTRUCTIONS            OF        MANSLAUGHTER,         INVOLUNTARY

       MANSLAUGHTER AND SELF–DEFENSE TO THE JURY.

              3. THE TRIAL COURT ABUSED ITS DISCRETION AND DENIED

       THE APPELLANT HIS DUE PROCESS RIGHTS TO A FAIR TRIAL BY

       FAILING TO GRANT HIS MOTION FOR MISTRIAL.

              4. THE TRIAL COURT ABUSED ITS DISCRETION AND DENIED

       THE APPELLANT HIS DUE PROCESS RIGHTS TO A FAIR TRIAL BY

       ALLOWING TESTIMONY IN VIOLATION OF EVIDENCE RULE 401 AND

       403.

              5. THE TRIAL COURT ABUSED ITS DISCRETION AND DENIED

       THE APPELLANT HIS DUE PROCESS RIGHTS TO A FAIR TRIAL BY

       NOT ALLOWING EVIDENCE OF THE VICTIM’ S CHARACTER

       REGARDING SPECIFIC INSTANCES OF CONDUCT RELATED TO THE

       VICTIM’S CHARACTER AS IT RELATES TO A CLAIM FOR SELF–

       DEFENSE OFFERED BY THE APPELLANT.

              6. THE EVIDENCE IS INSUFFICIENT TO SUSTAIN THE

       CONVICTION AND THE VERDICT IS AGAINST THE MANIFEST WEIGHT

       OF THE EVIDENCE.

       {¶6}   On November 2, 2011, the Supreme Court of Ohio dismissed the appeal as

not involving any substantial constitutional question.
Tuscarawas County, Case No. 2015AP070043                                              5


       {¶7}   On January 23, 2012, Snyder, acting pro se, filed a petition for a writ of

habeas corpus. Snyder v. Buchanan, N.D. Ohio No. 5:12CV255, 2012 WL 3580057 (July

30, 2012). Snyder raised the following grounds for relief:

              GROUND       ONE:     THE    TRIAL     COURT    VIOLATED      THE

       APPELLANT’S DUE PROCESS RIGHTS WHEN IT IMPROPERLY

       INSTRUCTED       THE    JURY WITH        REGARDS      TO   AGGRAVATED

       MURDER.

              GROUND       TWO:     THE    TRIAL     COURT    VIOLATED      THE

       APPELLANT’S DUE PROCESS RIGHTS WHEN IT FAILED TO PROVIDE

       JURY     INSTRUCTIONS         OF    MANSLAUGHTER,          INVOLUNTARY

       MANSLAUGHTER AND SELF–DEFENSE TO THE JURY.

              GROUND THREE: THE TRIAL COURT ABUSED ITS DISCRETION

       AND DENIED THE APPELLANT HIS DUE PROCESS RIGHTS TO A FAIR

       TRIAL BY FAILING TO GRANT HIS MOTION FOR MISTRIAL.

              GROUND FOUR: THE TRIAL COURT ABUSED ITS DISCRETION

       AND DENIED THE APPELLANT HIS DUE PROCESS RIGHTS TO A FAIR

       TRIAL BY ALLOWING TESTIMONY IN VIOLATION OF EVIDENCE RULE

       401 AND 403.

              GROUND FIVE: THE TRIAL COURT ABUSED ITS DISCRETION

       AND DENIED THE APPELLANT HIS DUE PROCESS RIGHTS TO A FAIR

       TRIAL BY NOT ALLOWING EVIDENCE TO THE VICTIM’ S CHARACTER

       REGARDING SPECIFIC INSTANCES OF CONDUCT RELATED TO THE
Tuscarawas County, Case No. 2015AP070043                                                6


       VICTIM’S CHARACTER AS IT RELATES TO A CLAIM FOR SELF–

       DEFENSE OFFERED BY THE APPELLANT.

              GROUND SIX: THE EVIDENCE IS INSUFFICIENT TO SUSTAIN

       THE CONVICTION AND THE VERDICT IS AGAINST THE MANIFEST

       WEIGHT OF EVIDENCE.

       {¶8}   The District Court denied Snyder’s petition after review. Snyder v.

Buchanan, N.D. Ohio No. 5:12 CV 255, 2012 WL 3579702(Aug. 17, 2012).

       {¶9}   On September 23, 2014, Snyder filed pro se “Motion to Void Judgment

Pursuant to Civil Rule 60 (Hearing Requested)” in the trial court. The state filed a

response on September 30, 2014. The trial court denied the motion by judgment entry

filed October 6, 2014.

       {¶10} On October 28, 2014, Snyder pro se filed an appeal from the trial court’s

October 6, 2014 in State v. Snyder, 5th Dist. Tuscarawas No. 2014 AP 100046. Snyder

failed to file a brief and this Court dismissed his appeal for want of prosecution on

February 6, 2015.

       {¶11} On June 15, 2015, Snyder pro se filed a “Petition for Post-Conviction Relief

Pursuant to Ohio Revised Code 2953.23(A)(1)(a).” The state filed a response on June

23, 2015 noting that Snyder’s petition was not timely filed pursuant to R.C. 2953.21(A)(2)

and was barred upon the grounds of res judicata.

       {¶12} By judgment entry filed June 30, 2015, the trial court denied Snyder’s

petition.

                                     Assignments of Error

       {¶13} Snyder raises six assignments of error,
Tuscarawas County, Case No. 2015AP070043                                                 7


      {¶14} “I. THE TRIAL COURT VIOLATED THE PETITIONER'S DUE PROCESS

RIGHTS WHEN IT IMPROPERLY INSTRUCTED THE JURY WITH REGARDS TO

AGGRAVATED MURDER.

      {¶15} “II. THE TRIAL COURT VIOLATED THE PETITIONER’S DUE PROCESS

RIGHTS     WHEN       IT   FAILED     TO    PROVIDE       JURY     INSTRUCTIONS        OF

MANSLAUGHTER, INVOLUNTARY MANSLAUGHTER AND SELF-DEFENSE.

      {¶16} “III. THE TRIAL COURT ABUSED ITS DISCRETION AND DENIED THE

APPELLANT HIS RIGHT TO A FAIR TRIAL BY FAILING TO GRANT HIS MOTION FOR

A MISTRIAL.

      {¶17} “IV. THE TRIAL COURT ABUSED ITS DISCRETION AND DENIED THE

PETITIONER/APPELLANT HIS DUE PROCESS RIGHTS TO A FAIR TRIAL BY

ALLOWING TESTIMONY IN VIOLATION OF EVIDENCE RULE 401 AND 403.

      {¶18} “V. THE TRIAL COURT ABUSED ITS DISCRETION AND DENIED THE

PETITIONER/APPELLANT HIS DUE PROCESS RIGHTS TO A FAIR TRIAL BY NOT

ALLOWING EVIDENCE OF THE VICTIM'S CHARACTER REGARDING SPECIFIC

INSTANCES OF CONDUCT RELATED TO THE VICTIM'S CHARACTER AS IT

RELATES TO A CLAIM OF SELF-DEFENSE OFFERED BY THE PETITIONER.

      {¶19} “VI. THE EVIDENCE IS INSUFFICIENT TO SUSTAIN THE CONVICTION

AND THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF EVIDENCE.”

                                             I. – VI.

      {¶20} R.C. 2953.21(A) states, in part, as follows: “(1) Any person who has been

convicted of a criminal offense or adjudicated a delinquent child and who claims that there

was such a denial or infringement of the person's rights as to render the judgment void or
Tuscarawas County, Case No. 2015AP070043                                                    8


voidable under the Ohio Constitution or the Constitution of the United States 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.”

       {¶21} A petition for post-conviction relief is a means to reach constitutional issues

that would otherwise be impossible to reach because the evidence supporting those

issues is not contained in the record of the petitioner's criminal conviction. State v. Murphy

(Dec. 26, 2000), 10th Dist. Franklin No. 00AP-233, 2000 WL 1877526(Dec. 26, 2000).

Although designed to address claimed constitutional violations, the post-conviction relief

process is a civil collateral attack on a criminal judgment, not an appeal of that judgment.

State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905(1999); State v. Steffen, 70

Ohio St.3d 399, 410, 639 N.E.2d 67(1994). A petition for post-conviction relief, thus, does

not provide a petitioner a second opportunity to litigate his or her conviction, nor is the

petitioner automatically entitled to an evidentiary hearing on the petition. State v. Jackson,

64 Ohio St.2d 107, 110, 413 N.E.2d 819(1980). State v. Lewis, 5th Dist. Stark

No.2007CA00358, 2008-Ohio-3113, ¶ 8.

       {¶22} 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 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 * * *. If no appeal is taken, except as otherwise
Tuscarawas County, Case No. 2015AP070043                                                     9


       provided in section 2953.23 of the Revised Code, the petition shall be filed

       no later than three hundred sixty-five days after the expiration of the time

       for filing the appeal.

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

October 6, 2010. Snyder filed his petition on June 15, 2015. Therefore, his petition is not

within the three hundred sixty-five days after the date on which the trial transcript was

filed with this Court in his direct appeal and thus not in compliance with the time frame as

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

       {¶24} 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 or a second petition or successive petitions for similar relief on

       behalf of a petitioner 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 discovery of the facts upon which the petitioner must rely to

       present the claim for relief, or, subsequent 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 persons in the petitioner's situation,

       and the petition asserts a claim based on that right.
Tuscarawas County, Case No. 2015AP070043                                                  10


              (b) The petitioner shows by clear and convincing evidence that, but

       for constitutional error at trial, no reasonable factfinder would have found

       the petitioner guilty of the offense of which the petitioner was convicted or,

       if the claim challenges a sentence of death that, but for constitutional error

       at the sentencing hearing, no reasonable factfinder would have found the

       petitioner eligible for the death sentence.

       {¶25} Snyder does not set forth any argument in his brief as to the delay in filing,

why he meets the exception requirements contained in R.C. 2953.23(A)(1) or (A)(2), or

how the petition otherwise complies with R.C. 2953.23(A)(1) or (A)(2). As such, Snyder

has failed to meet his burden under R.C. 2953.23(A)(1) or (A)(2) to file an untimely petition

for post-conviction relief.

       {¶26} In addition, the six assignments of error Snyder raises in this appeal 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).

Conversely, issues properly raised in a post-conviction petition are those that could not

have been raised on direct appeal because the evidence supporting the issues is outside

the record. State v. Milankovitch, 42 Ohio St.2d 46, 325 N.E.2d 540 (1975).

       {¶27} Res judicata also implicitly prohibits a petitioner from “re-packaging”

evidence or issues that either were, or could have been, raised in the context of the
Tuscarawas County, Case No. 2015AP070043                                                     11

petitioner's trial or direct appeal. State v. Lawson, 103 Ohio App.3d 307, 315, 659 N.E.2d

362(12th Dist. 1995). This means that the evidence relied upon must not be evidence

that was in existence or available for use at the time of trial or direct appeal, and finally,

cannot be merely cumulative of the evidence already presented. Id. at 315.

       {¶28} Snyder’s arguments do not raise any issues that are dependent upon

evidence outside the record. These matters raised cannot be considered newly

discovered evidence for they were in the trial court record.

       {¶29} Further, in appellant’s direct appeal, this Court addressed the identical six

assignments of error Snyder raises in his petition. See, Snyder I at ¶19-24. The United

States District Court again reviewed the identical six assignments of error and found each

to be without merit. Snyder v. Buchanan, N.D. Ohio No. 5:12CV255, 2012 WL 3580057

(July 30, 2012) at §39; §49; §55; §66; §69; §80; §95-96.

                                             Conclusion

       {¶30} Upon review, we find that Snyder has not satisfied the R.C. 2953.23(A)

(1)(a) requirement that he was unavoidably prevented from discovery of the facts upon

which he relies to present his claims for post-conviction relief. Snyder does not offer any

evidence that was not already in the record before the trial court. Further, the issues

raised by Snyder either were or could have been raised in his direct appeal and are

therefore res judicata. Thus, the trial court did not err in denying Snyder’s petition for post-

conviction relief.

       {¶31} Snyder’s six assignments of error are overruled in their entirety.
Tuscarawas County, Case No. 2015AP070043                               12


      {¶32} The judgment of the Tuscarawas County Court of Common Pleas is

affirmed.

By Gwin, P.J.,

Delaney, J., and

Baldwin, J., concur
