[Cite as State v. Feagin, 2018-Ohio-4221.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :       JUDGES:
                                             :       Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                   :       Hon. Patricia A. Delaney, J.
                                             :       Hon. Earle E. Wise, Jr., J.
-vs-                                         :
                                             :
MARCO A. FEAGIN                              :       Case No. 18CA48
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 2003CR0086




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    October 16, 2018




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellee

JOSEPH C. SNYDER                                     MARCO A. FEAGIN, Pro Se
38 South Park Street                                 Inmate No. 480-240
Mansfield, OH 44902                                  Allen Oakwood Correctional Institution
                                                     P.O. Box 4501
                                                     Lima, OH 45802
Wise, Earle, J.

       {¶ 1} Defendant-Appellant, Marco A. Feagin, appeals the May 30, 2018 judgment

entry of the Court of Common Pleas of Richland County, Ohio denying his petition for

postconviction relief. Plaintiff-Appellee is the state of Ohio.

                         FACTS AND PROCEDURAL HISTORY

       {¶ 2} On December 22, 2004, appellant was sentenced to an aggregate term of

eighteen years to life involving several counts including murder with a firearm

specification. Appellant filed a direct appeal and this court affirmed his convictions and

sentence. State v. Feagin, 5th Dist. Richland No. 05CA1, 2006-Ohio-676. Appellant did

not raise any claims of prosecutorial misconduct or ineffective assistance of counsel.

       {¶ 3} On March 25, 2010, a new sentencing entry was entered in order to impose

a mandatory term of post-release control. The trial court sentenced appellant to the

original sentence and added a five year term of mandatory post-release control.

Appellant filed an appeal, raising in part prosecutorial misconduct. This court affirmed

the resentencing, and noted the arguments relative to prosecutorial misconduct were res

judicata as they could have been raised in the direct appeal. State v. Feagin, 5th Dist.

Richland No. 10CA46, 2011-Ohio-2025.

       {¶ 4} On April 25, 2011, the trial court denied appellant's motion for leave to file

delayed motion for new trial. Appellant filed an appeal, raising in part prosecutorial

misconduct. This court affirmed the trial court's decision, and again found the arguments

relative to prosecutorial misconduct to be res judicata. State v. Feagin, 5th Dist. Richland

No. 15CA41, 2015-Ohio-5107. Appellant filed a motion for reconsideration. By judgment

entry filed March 7, 2016, this court granted the motion, finding the trial court erred in
resentencing appellant in its March 25, 2010 entry relative to post-release control. The

portion of the entry on post-release control was vacated, but the remainder of appellant's

sentence was left intact. By judgment entry filed March 9, 2016, the trial court vacated

the order of post-release control.

       {¶ 5} On April 5, 2016, the trial court denied appellant's motion to convey him for

hearing after vacation of sentence. Appellant filed an appeal, raising in part prosecutorial

misconduct. This court affirmed the trial court's decision, and again found the arguments

relative to prosecutorial misconduct to be res judicata. State v. Feagin, 5th Dist. Richland

No. 16CA21, 2016-Ohio-7003.

       {¶ 6} On May 11, 2018, appellant filed a petition to vacate and set aside judgment

of conviction and sentence pursuant to R.C. 2953.21 and 2953.23. Appellant made

arguments relative to jury instructions, prosecutorial misconduct, and ineffective

assistance of counsel. By judgment entry filed May 30, 2018, the trial court denied the

petition, finding it was a successive petition for postconviction relief, the petition was

untimely filed, and the arguments therein were res judicata.

       {¶ 7} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                             I

       {¶ 8} "APPELLANT WAS DEPRIVED OF A FAIR TRIAL WHERE THE STATE

OF OHIO WITHHELD EXCULPATORY EVIDENCE IN VIOLATION OF THE EQUAL

PROTECTION AND DUE PROCESS CLAUSE(S) OF THE UNITED STATES

CONSTITUTION AND ART. 1 SECTION 10, 16 OF THE OHIO CONSTITUTION."
                                             II

       {¶ 9} "APPELLANT WAS DEPRIVED OF A FAIR TRIAL WHERE THE STATE

FAILED TO PROPERLY INSTRUCT THE JURY AS TO SELF-DEFENSE WHILE

INSTRUCTING IN A GENERAL SENSE IN VIOLATION OF APPELLANT'S DUE

PROCESS RIGHTS."

                                             III

       {¶ 10} "APPELLANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF

COUNSEL AT TRIAL AND UPON HIS DIRECT APPEAL WHERE COUNSEL ON

APPEAL FAILED TO RAISE THE CUMULATIVE EFFECTS OF ERRORS OF HIS TRIAL

COUNSEL'S AT TRIAL IN VIOLATION OF THE APPELLANT'S SIXTH AMENDMENT

RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS CONTAINED IN THE UNITED

STATES CONSTITUTION AND ARTICLE 1 SECTION 10, 16 OF THE OHIO

CONSTITUTION,        AND    AS    CONFERRED            IN   THE   OHIO'S      FOURTEENTH

AMENDMENT."

       {¶ 11} We note the day after appellee filed its brief, appellant filed a supplemental

brief adding a fourth assignment of error. Appellant did not seek leave to supplement his

brief therefore, the additional assignment of error will not be considered.

                                          I, II, III

       {¶ 12} In his three assignments of error, appellant claims the trial court erred in

denying his petition for postconviction relief, arguing he was denied a fair trial because

the state withheld exculpatory evidence, the state failed to properly instruct the jury on

self-defense, and he was deprived of the effective assistance of trial counsel and

appellate counsel in his direct appeal. We disagree with appellant's claims.
       {¶ 13} Appellant appeals the trial court's denial of his May 11, 2018 petition to

vacate and set aside judgment of conviction and sentence. In his petition, appellant

argued the jury was not instructed on provocation, the prosecutor made improper

statements, the prosecutor elicited perjured testimony, he received ineffective assistance

of trial counsel regarding the defense of self-defense, the prosecutor withheld exculpatory

evidence, and the prosecutor used overzealous tactics. By judgment entry filed May 30,

2018, the trial court denied the petition, finding it was a successive petition for

postconviction relief (fifth filing at a minimum), the petition was untimely filed (more than

twelve years late), and the arguments therein were res judicata. We note the trial court

conducted a thorough analysis on appellant's petition.

       {¶ 14} As determined by the trial court, appellant's May 11, 2018 petition for

postconviction relief was clearly untimely pursuant to R.C. 2953.21(A)(2). Based upon

appellant's past filings, the subject petition was a successive petition for postconviction

relief. R.C. 2953.23 states the following:



              (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.

              (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.



       {¶ 15} In reviewing appellant's May 11, 2018 filing, we find appellant did not satisfy

the requirements of R.C. 2953.23.

       {¶ 16} Furthermore, the arguments raised by appellant in his petition are barred

under the doctrine of res judicata. As stated by the Supreme Court of Ohio in State v.

Perry, 10 Ohio St.2d 175 (1967), paragraphs eight and nine of the syllabus, the doctrine

of res judicata is applicable to petitions for postconviction relief. The Perry court explained

the doctrine at 180-181 as follows:



              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 trial, which resulted in that judgment of

       conviction, or on an appeal from that judgment.



       {¶ 17} The issues raised by appellant in his petition could have been raised on

direct appeal and/or were raised in his previous appeals.

       {¶ 18} Upon review, we find the trial court did not err in denying appellant's petition

for postconviction relief.

       {¶ 19} Assignments of Error I, II, and III are denied.

       {¶ 20} The judgment of the Court of Common Pleas of Richland County, Ohio is

hereby affirmed.

By Wise, Earle, J.

Gwin, P.J. and

Delaney, J. concur.




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