[Cite as State v. Myers, 2018-Ohio-330.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                       WOOD COUNTY


State of Ohio                                    Court of Appeals No. WD-17-022

        Appellee                                 Trial Court No. 2011 CR 364

v.

Craig R. Myers                                   DECISION AND JUDGMENT

        Appellant                                Decided: January 26, 2018

                                           *****

        Paul A. Dobson, Wood County Prosecuting Attorney, and
        David T. Harold, Assistant Prosecuting Attorney, for appellee.

        Craig R. Myers, pro se.

                                           *****

        SINGER, J.

        {¶ 1} Self-represented appellant, Craig Myers, appeals the March 24, 2017

judgment of the Wood County Court of Common Pleas denying his petition for

postconviction relief as untimely. Finding no reversible error, we affirm.
                                Assignments of Error

      {¶ 2} Myers sets forth the following assignments of error:

             1. Trial Court made an erroneus decision that the Trial Court made

      findings that Myers’ conviction were not allied offenses of similar import.

      (Sics omitted.)

             2. Trial Court knowingly violated Myers’ Sixth Amendment Right

      as to the Confrontation Clause, as Trial Court interfered with Myers’ right

      of cross-examination. (Sics omitted.)

             3. State Prosecution with held evidence favorable to the defendant,

      as this evidence would establish the innocence of the defendant, as the

      alleged victim’s injury was caused in one of the many car accidnets, that

      the alleged vicitm recently under went. (Sics omitted.)

             4. Myers was provided ineffective Trial Counsel as Counsel failed

      to forego any investigation as to the alleged vicitm’s medical records and or

      car accidents listed in the February 13, 2012 filed motion. (Sics omitted.)

                                  Background

      {¶ 3} In July 2011, Myers physically abused the victim and held her against her

will. He was charged with felonious assault under R.C. 2903.11(A)(1), and abduction

under R.C. 2905.02(A)(2).




2.
       {¶ 4} Appellant proceeded to jury trial and was found guilty on May 10, 2013. He

was sentenced to 36 months imprisonment for the abduction, and eight years for the

felonious assault, which were ordered to run concurrently. He timely appealed.

       {¶ 5} On direct appeal, Myers through counsel assigned two errors: “1. The trial

court committed reversible error by admitting into evidence the testimony of Katherine

Mull[;]” and “2. The verdict was against the manifest weight of the evidence.” After

careful review of the record, the assigned errors were found not well-taken. State v.

Myers, 6th Dist. Wood No. WD-13-048, 2014-Ohio-3759, ¶ 28.

       {¶ 6} Appellant, without counsel, then petitioned the trial court for postconviction

relief on February 10, 2017.

       {¶ 7} In specific, he filed a “Motion to Correct Judgment and Sentence as Pursuant

to Ohio Revised Code 2953.08 and * * * 2941.25.” Myers argued his conviction should

be corrected because he was “sentenced to both charged offenses which were similar

import.”

       {¶ 8} Appellant also filed a “Motion for Stay and Abeyance,” in which he

requested the trial court “to stay the February 10, 2017 filed motion[.]”

       {¶ 9} The court took the motions under advisement and found the request for

postconviction relief was untimely pursuant to R.C. 2953.21(A)(2). The judgment was

journalized March 24, 2017, and appellant now appeals.




3.
                                    Standard of Review

       {¶ 10} An appellate court reviews a trial court’s denial of a petition for

postconviction relief under an abuse of discretion standard. State v. Gondor, 112 Ohio

St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58. Abuse of discretion connotes more

than an error of law; it implies the trial court acted arbitrarily, unreasonably, or

unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983).

                                     Law and Analysis

       {¶ 11} In the four assigned errors, appellant argues for postconviction relief by

asserting the trial court, his counsel, and opposing counsel committed prejudicial errors

against him. Appellee, the state of Ohio, simply argues the petition was properly

dismissed as untimely.

       {¶ 12} “A petition for postconviction relief under R.C. 2953.21 is a collateral civil

attack on a criminal judgment, not an appeal of the judgment.” See State v. Gonzales, 6th

Dist. Wood No. WD-09-078, 2010-Ohio-4703, ¶ 13, citing State v. Steffen, 70 Ohio St.3d

399, 410, 639 N.E.2d 67 (1994); State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d

905 (1999). However, a petition for postconviction relief does not provide a second

opportunity to litigate a conviction. See State v. Hessler, 10th Dist. Franklin No. 01 AP-

1011, 2002-Ohio-3321, ¶ 23. Such denial is because res judicata is applicable in

postconviction relief proceedings. State v. Szefcyk, 77 Ohio St.3d 93, 95, 671 N.E.2d 233

(1996).




4.
                                      A. Res Judicata

       {¶ 13} 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 raised or which could have been raised at the trial, which resulted in that

judgment of conviction, or on an appeal from that judgment. (Quotations omitted.) See

State v. Zich, 6th Dist. Lucas No. L-15-1263, 2017-Ohio-414, ¶ 12, citing State v. Perry,

10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus.

       {¶ 14} Therefore, a claim “that could have been raised on direct appeal and was

not is res judicata and not subject to review in subsequent proceedings.” State v. Segines,

8th Dist. Cuyahoga No. 99789, 2013-Ohio-5259, ¶ 8, citing State v. Saxon, 109 Ohio

St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 16. Accordingly we find appellant’s first,

second, and third assignments of error not well-taken. Nevertheless, a recognized

exception to a res judicata finding is that “res judicata does not act to bar a defendant

represented by the same counsel at trial and upon direct appeal from raising a claim of

ineffective assistance of counsel in a petition for postconviction relief.” State v.

Lambrecht, 58 Ohio App.3d 86, 87, 568 N.E.2d 743 (6th Dist.1989), citing Perry.

       {¶ 15} Here, appellant was represented by his trial counsel in his direct appeal.

See Myers, 6th Dist. Wood No. WD-13-048, 2014-Ohio-3759.




5.
                           B. Ineffective Assistance of Counsel

       {¶ 16} In the fourth assigned error, appellant argues his counsel was ineffective

for failing to investigate the victim’s medical history or past car accidents when preparing

the defense. He argues the injuries the court found to have been inflicted by him against

the victim were actually from past car accidents, and not because he physically assaulted

her.

                                   C. Untimely Petition

       {¶ 17} We agree with the trial court that appellant did not timely file his petition

for postconviction relief, and we need not address appellant’s fourth assignment of error.

       {¶ 18} R.C. 2953.21(A)(2), as enacted December 19, 2014, and as effective

March 25, 2015, altered the time frame in which the convicted can timely petition for

postconviction relief. See 2013 Ohio HB 663. As a result, the petition must now be filed

no later than 365 days after the date on which the trial transcript is filed in the court of

appeals in the direct appeal of the judgment. See R.C. 2953.21(A)(2). Here, the trial

transcript was filed in August 2013. Appellant’s direct appeal was actually filed July

2013, before enactment of this amendment (when the time frame to file for

postconviction relief was 180 days). Nevertheless, applying either time frame results in

appellant’s motion being untimely because the petition was not filed until February 2017.

       {¶ 19} Despite this untimeliness, Myers asserts his claims for postconviction relief

fit within an exception provided under R.C. 2953.23(A)(1), which provides:




6.
            (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 appellant unless division (A)(1) or (2) of this section applies:

            (1) Both of the following apply:

            (a) Either the appellant shows that the appellant was unavoidably

     prevented from discovery of the facts upon which the appellant 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 appellant’s

     situation, and the petition asserts a claim based on that right.

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

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

     the appellant guilty of the offense of which the appellant 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

     appellant eligible for the death sentence.




7.
          {¶ 20} In addressing this exception, the trial court found Myers did not argue he

was unavoidably prevented from discovery of facts and, further, that he did not argue a

new personal right has been recognized and is applicable to him.

          {¶ 21} Appellant now argues he was unavoidably prevented from discovery of

facts contained in medical records held by the state, and that he could show by clear and

convincing evidence that, but for the court not requiring disclosure of those records, no

reasonable factfinder would have found him guilty.

          {¶ 22} Even assuming Myers was deprived of medical records reflecting the

victim’s past injuries, we cannot say a reasonable factfinder would not have found him

guilty.

          {¶ 23} R.C. 2903.11(A)(1) codifies felonious assault, and states “[n]o person shall

knowingly* * *[c]ause serious physical harm to another[.]

          {¶ 24} Here, medical records and testimonial evidence revealed Myers held the

victim by the throat and threw her against the wall and floor, and that he closed a door on

her hand and leg. Evidence further showed the victim complained of a headache and

various pains in her upper body, and that she had documented bruises, contusions, and

abrasions.

          {¶ 25} R.C. 2905.02(A)(2) codifies abduction, stating “[n]o person shall

knowingly” * * * “[b]y force or threat, restrain the liberty of another person under

circumstances that create a risk of physical harm to the victim or place the other person in

fear[.]”




8.
       {¶ 26} Here, the victim was restricted from leaving appellant’s home, where she

tried to leave. Myers became verbally abusive, took her keys, and smashed her hand and

leg with the door, thereby refusing to let her go.

       {¶ 27} We find despite any past injuries, car accidents or medical records, there

was sufficient, credible and competent evidence in the record for a factfinder to find guilt.

Therefore, we find appellant’s fourth assigned error not well-taken.

                                        Conclusion

       {¶ 28} The judgment of the Wood County Court of Common Pleas is affirmed.

Myers is ordered to pay the costs of this appeal pursuant to App.R. 24.


                                                                        Judgment affirmed.


       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.



Mark L. Pietrykowski, J.                        _______________________________
                                                            JUDGE
Arlene Singer, J.
                                                _______________________________
James D. Jensen, J.                                         JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE




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