[Cite as State v. Hazel, 2013-Ohio-118.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                     CLARK COUNTY

STATE OF OHIO                                  :
                                               :     Appellate Case Nos. 2011-CA-101
        Plaintiff-Appellee                     :     Appellate Case Nos. 2012-CA-22
                                               :
v.                                             :
                                               :     Trial Court Case Nos. 2010-CR-808
MICHAEL HAZEL                                  :     Trial Court Case Nos. 2012-CR-828
                                               :     (Criminal Appeal from
        Defendant-Appellant                    :     (Common Pleas Court)
                                               :
                                            ...........

                                           OPINION

                             Rendered on the 18th day of January, 2013.

                                            ...........

LISA M. FANNIN, Atty. Reg. #0082337, Clark County Prosecutor’s Office, 50 East
Columbia Street, 4th Floor, Post Office Box 1608, Springfield, Ohio 45501
      Attorney for Plaintiff-Appellee

MICHAEL HAZEL, #647-444, Chillicothe Correctional Institution, Post Office Box 5500,
Chillicothe, Ohio 45601
        Defendant-Appellant, pro se

                                           .............

HALL, J.

        {¶ 1}     In March 2011, Michael Hazel was convicted on two counts of domestic

violence. With the assistance of appellate counsel, he appealed. While the direct appeal was

pending, Hazel twice appealed pro se from rulings made by the trial court. Hazel filed a
                                                                                                                                        2


petition for post-conviction relief, arguing that the jury forms and the indictment are defective

because neither states the specific subsection of the domestic-violence statute under which he

was charged. The trial court denied the petition without much explanation, and Hazel moved

for findings of fact and conclusions of law. Before the court ruled on the

findings-and-conclusions motion, Hazel appealed pro se the post-conviction-relief ruling.

Soon after the appeal was filed, this Court remanded the case to the trial court to rule on the

findings-and-conclusions motion, staying proceedings until the court so ruled. In February

2012, the trial court sustained the findings-and-conclusions motion and adopted the State’s

proposed findings of fact and conclusions of law. On February 27, 2012, Hazel filed a separate

Civ.R. 60(B) motion to vacate his convictions, making the same argument that he did in the

petition for post-conviction relief. At the same time, he also filed a motion for leave to file

Civ.R. 33 interrogatories directed to the State, concerning the victim’s trial testimony. The

trial court overruled both motions. Hazel appealed.

         {¶ 2}        In Hazel’s direct appeal, we previously affirmed his convictions.1 See State v.

Hazel, 2d Dist. Clark No. 2011 CA 16, 2012-Ohio-835.2 Hazel filed an application to reopen

his direct appeal and filed a motion to certify a conflict. We denied the application to reopen

and overruled the motion to certify a conflict.

         {¶ 3}        The appeal from the petition-for-post-conviction-relief ruling was reinstated.

Because that appeal and the appeal from the ruling on the Civ.R. 60(B) and Civ.R. 33 motions

            1
             A modified judgment was affirmed. We sua sponte noted that the trial court had erroneously imposed a 5-year period of
 post-release control on Hazel. We reduced that period to 3 years.
            2
              The details about the offenses are set forth in our opinion. Because they are mostly not relevant to our decision here, we will not
 reiterate them.
                                                                                                                                       3


stem from the same case, the two appeals were consolidated. We now review the assignments

of error presented in these two appeals.

         {¶ 4}        Hazel assigns nine errors. Assignments one through four are presented in his

May 17, 2012 brief filed in Case No. 11-CA-0101, and assignments five through nine are

presented in his August 7, 2012 brief filed in Case No. 12-CA-22. Eight of the assignments of

error allege errors committed by the trial court. They concern Hazel’s three post-conviction

filings; the petition for post-conviction relief, the Civ.R. 60(B) motion, and the Civ.R. 33

motion. All of the underlying legal issues that Hazel raised in these motions, and now raises

again in these eight assignments of error, are issues that he raised or could have raised in the

direct appeal. “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, or on an appeal from that judgment.” State v. Perry, 10 Ohio

St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus. Therefore res judicata bars

Hazel from again raising these issues.3 The remaining assignment of error alleges that this

Court erred by consolidating Hazel’s appeals. This issue is not properly before us.



            3
               We note that Hazel argues, in both his Petition for Post-conviction relief and his Civ. R. 60(B) “Motion for Void Judgment,”
 that his convictions are void and that the indictment was void for failure to specify the particular statutory subsection in the indictment and in
 the verdict forms. Recently, in State v. Billiter, ––– Ohio St.3d ––––, 2012–Ohio–5144, the Ohio Supreme Court held that res judicata
 does not prevent collateral attack of a sentence that is void because of improper imposition of post-release control. The body of case law
 surrounding the unique post release control issue supports the conclusion that improper imposition of post release control makes that part of
 a sentence void. However, simply arguing that another type of legal error renders an indictment or conviction “void” does not circumvent res
 judicata. Even if the arguments Hazel’s now asserts had merit, they would only render his indictment and convictions voidable, not void.
                                                                                              4


       {¶ 5}    We also individually address the assignments of error. The first assignment of

error alleges that because the State did not respond to Hazel’s petition for post-conviction

relief it is barred from responding on appeal. Although R.C. 2953.21(D) allows the State to

respond to a petition for post-conviction relief within ten days after docketing, or within an

extended time the court may fix for good cause, it is well settled that the State is not required

to respond. State v. Hansbro, 2d Dist. Clark No. 2001-CA-88, 2002-Ohio-2922, 2002 WL

1332297, *2 (“In the first place, the State was not required to file a response to the

post-conviction petition, and the trial court did not have to consider the State’s response, if

any, before ruling on the petition.”) Moreover, Hazel cites no authority for the proposition

that, if the State does not respond in the trial court, it should be precluded from responding to

an appellant’s assignments of error on appeal.

       {¶ 6}    The fifth assignment of error alleges that the State is also barred from

responding on appeal to the Civ.R. 60(B) motion and the Civ.R. 33 motion because it did not

respond to either of them in the trial court. Initially, we note that the State did respond to the

Civ.R. 33 motion in its March 15, 2012 “Response in Opposition.” Moreover, Hazel’s Civ.R.

60(B) motion to vacate his conviction is, regardless of how he characterizes it, nothing more

than a successive petition for post-conviction relief. The post-conviction relief statute does not

contemplate the submission or use of interrogatories because there is no right to discovery in

post-conviction proceedings. State ex rel. Love v. Cuyahoga Cty. Prosecutor's Office, 87 Ohio

St.3d 158, 159, 718 N.E.2d 426 (1999); State v. Chinn, 2d Dist. Montgomery No. 16764, 2000

WL 1458784 (Aug. 21, 1998). Furthermore, as noted in the preceding paragraph, there is no

authority for the proposition that if the State does not respond in the trial court, it should be
                                                                                             5


precluded from responding on appeal.

       {¶ 7}    The ninth assignment alleges that the trial court erred by allowing the State to

file proposed findings of fact and conclusions of law and alleges that the proposed findings

were “fraudulent.” Hazel bases his argument on the requirement in R.C. 2953.21(D) that the

State must respond to a petition for post-conviction relief within ten days, an argument that we

rejected above. Hazel further argues that by adopting the State’s proposals the trial court

committed a fraudulent act because they were filed late and because the court should have

made its own findings and conclusions. He cites no case law supporting either proposition and

we have found none.

       {¶ 8}    More importantly, even if Hazel could prevail on the procedural arguments he

has made in support of the first, fifth and ninth assignments of error, he cannot prevail on the

underlying legal issues raised in his pleadings because the issues are barred by res judicata. In

the post-conviction petition he argued that the verdict forms and the indictment were legally

and constitutionally insufficient because they did not include the specific statutory subsection

under which he was charged or found guilty. In the Civ.R. 60 motion, Hazel argued that his

convictions were void for precisely the same reasons. As we noted above, these issues were

either raised or could have been raised in the direct appeal, so they are barred by res judicata.

We also addressed those issues in our June 27, 2012 Decision and Entry denying Hazel’s

application to reopen his direct appeal, Case No. 2011-CA-11. There we stated:

       Insofar as the precise offense with which Hazel was charged was clear to him

       and to the jury, based on the language of the indictments, the jury instructions,

       and the verdict forms, the State was not required to list the statutory subsection
                                                                                             6


        on the indictment, nor was the court required to include that information on the

        verdict forms.

Decision and Entry, 4 (June 27, 2012).

        {¶ 9}   The first, fifth, and ninth assignment of errors are overruled.

        {¶ 10} The second assignment of error again alleges that the verdict forms used at

trial are void. The third and fourth assignments of error again repeat the assertion that the

indictment is void. The alleged defect in the verdict forms and the indictment is the same: the

absence of the specific subsection of the domestic-violence statute under which Hazel was

charged. Because these issues could have been raised in the direct appeal, they are barred by

res judicata. Moreover, as previously stated, Hazel alleged these same errors in his application

to reopen the direct appeal, and we rejected them. See Decision and Entry (June 27, 2012).

        {¶ 11} The second, third, and fourth assignments of error are overruled.

        {¶ 12} The seventh assignment of error alleges that the State and the trial court

committed fraud. The eighth assignment of error alleges that, based on this fraud, Hazel’s

domestic-violence convictions are unconstitutional. The alleged fraud involves the evidence

that supports the element in the domestic-violence statute that the victim be a “family or

household member,” R.C. 2919.25(A). A “family or household member” includes a “person

living as a spouse” who has resided with the offender. R.C. 2919.25(F)(1)(a)(i). Basically,

Hazel claims that the victim lied in her testimony on the issue of whether she had been living

with Hazel as his spouse at the time he physically harmed her. This issue is plainly barred by

res judicata.

        {¶ 13} Hazel raised the issue of whether the victim was a family or household
                                                                                            7


member in the direct appeal, and we addressed it in our opinion. The definition of “person

living as a spouse” is “a person who is living or has lived with the offender in a common law

marital relationship, who otherwise is cohabiting with the offender, or who otherwise has

cohabited with the offender within five years prior to the date of the alleged commission of the

act in question.” R.C. 2919.25(F)(2). We rejected Hazel’s argument that the State failed to

present sufficient evidence to establish the “family or household member” element,

specifically, that he and the victim were cohabiting. We concluded that, though the victim’s

trial testimony was “somewhat inconsistent as to her living arrangements,” Hazel,

2012-Ohio-835, at ¶ 18, “[c]onsidering all of the evidence presented, the jury could have

reasonably concluded that Hazel lived with [the victim] and thus was a family or household

member for purposes of the domestic violence statute.” Id. at ¶ 20.

       {¶ 14} The seventh and eighth assignments of error are overruled.

       {¶ 15} Finally, the sixth assignment of error alleges that this Court erred when it

consolidated Hazel’s appeals. The proper way to challenge our decision is either with an

App.R. 26 application for reconsideration (which must be filed within 10 days of the entry of

the order being challenged, App.R. 26(A)(1)(a)) or with an appeal to the Ohio Supreme Court.

We add that the Appellate Rules give courts of appeal the discretion to sua sponte consolidate

appeals, App.R. 3(B), and that we see no problem with our exercise of that discretion in this

case, particularly when the legal issues raised in the appeals are virtually identical.

       {¶ 16} The sixth assignment of error is overruled.

       {¶ 17} The trial court’s judgment is affirmed.

                                         .............
                                  8


FAIN and FROELICH, JJ., concur.

Copies mailed to:

Lisa M. Fannin
Michael Hazel
Hon. Douglas M. Rastatter
