[Cite as State v. Schandel, 2010-Ohio-2847.]

                            STATE OF OHIO, CARROLL COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


STATE OF OHIO,                                 )
                                               )   CASE NO. 09 CA 862
        PLAINTIFF-APPELLEE,                    )
                                               )
        - VS -                                 )      OPINION
                                               )
SHANE SCHANDEL,                                )
                                               )
        DEFENDANT-APPELLANT.                   )


CHARACTER OF PROCEEDINGS:                          Criminal Appeal from Common Pleas
                                                   Court, Case No. 06 CR 4902


JUDGMENT:                                          Affirmed.


APPEARANCES:
For Plaintiff-Appellee:                            Attorney Donald Burns
                                                   Prosecuting Attorney
                                                   Attorney John C. Childers
                                                   Assistant Prosecuting Attorney
                                                   11 East Main Street
                                                   Carrollton, OH 44615

For Defendant-Appellant:                           Shane Schandel, Pro-se
                                                   7204 Dial Road
                                                   Carrollton, OH 44615


JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Cheryl L. Waite

                                                   Dated: June 16, 2010

DeGenaro, J.
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       {¶1}   This timely appeal comes for consideration upon the record in the trial court
and the parties' briefs. Pro-se Appellant, Shane Schandel appeals the August 28, 2009
decision of the Carroll County Court of Common Pleas, which denied Schandel's Motion
to Vacate Conviction. Upon review, Schandel's arguments are meritless. Schandel's
motion constituted a successive petition for post-conviction relief. Schandel failed to
provide or allege any newly discovered evidence dehors the record indicating a
constitutional error, and further failed to demonstrate that such evidence would require his
acquittal. Because Schandel did not satisfy the requirements of R.C. 2953.23(A) to allow
the trial court's consideration of his successive petition, the trial court's decision to deny
Schandel's motion is affirmed.
                             Facts and Procedural History
       {¶2}   On October 26, 2006, the trial court sentenced Schandel pursuant to a jury
finding of guilty on single counts of theft, a fifth degree felony in violation of R.C.
2913.02(A)(1); receiving stolen property, a fifth degree felony violation of R.C.
2913.51(A); and trafficking in drugs, a fourth degree felony in violation of R.C.
2925.03(A)(1). The trial court merged the receiving stolen property and theft convictions
and imposed a sentence of thirty months. The trial court ordered that Schandel be
responsible, jointly and severally with co-defendants who were convicted for a separately-
committed theft offense, for restitution in the amount of $5,030.00.
       {¶3}   Schandel filed a motion for post-conviction relief on April 11, 2007, alleging
ineffective assistance of counsel, prejudicial joinder, and errors stemming from allegedly
fabricated evidence. In its April 25, 2007 judgment entry denying Schandel's motion, the
trial court noted that Schandel had filed no evidentiary materials to support his claims,
and that the record further did not demonstrate that Schandel was entitled to the relief
requested. Schandel did not appeal this decision. On September 13, 2007, Schandel
filed a motion for leave to file a delayed appeal of the October 26, 2006 judgment entry,
which this Court granted.
       {¶4}   As described in Schandel's delayed appeal, Schandel's co-defendants had
been convicted for theft offenses for stealing aluminum roofing, whereas Schandel had
                                                                                         -3-


been convicted for a theft offense for stealing copper wiring. State v. Schandel, 7th Dist.
No. 07-CA-848, 2008-Ohio-6359, at ¶6.          Witnesses testified at trial that they saw
Schandel remove the copper wire from the building, saw him burning plastic off of the
wire, and saw him selling the wire to a scrap yard. Id. at ¶37, 52. Three witnesses
testified that they were familiar with the building and the wiring taken, and opined that the
value of the wire was over $500.00, or "worth a lot of money, specifically more than
$500." Id. at ¶40. This court found that Schandel's theft conviction for the copper wire
was supported by sufficient evidence, and not against the manifest weight of the
evidence. Id. at ¶43, 53.
       {¶5}   Schandel's co-defendants were convicted of breaking and entering and
theft, and were ordered to jointly and severally pay $5,000.00 in restitution. Id. at ¶156.
Schandel was ordered to pay $5,030.00 in restitution, jointly and severally with his co-
defendants. This court found that the restitution amount of $5,030.00 exceeded the
economic loss caused by Schandel's individual illegal conduct, which was only proven at
trial to have been somewhere over $500.00. Id. at ¶157.
       {¶6}   On December 4, 2008, this court affirmed Schandel's convictions, but
reversed and remanded the restitution order for further consideration by the trial court.
The Ohio Supreme Court declined jurisdiction over Schandel's appeal, and this Court
denied Schandel's application to reopen appeal and his motion for reconsideration.
       {¶7}   At the July 2, 2009 rehearing on restitution, the State recommended that the
restitution amount be set at zero, and counsel for Schandel stated that he assented to the
State's recommendation. The trial court issued a judgment entry on July 6, 2009
accepting the recommendation, setting restitution at a zero amount, and noting that any
costs arising from the hearing were waived. Schandel did not appeal this order.
       {¶8}   On August 27, 2009, Schandel filed a Motion to Vacate Conviction, arguing
that there was insufficient evidence to support his theft conviction. Schandel asserted
that, because the State recommended a zero restitution amount during the rehearing on
restitution, the State therefore committed prosecutorial misconduct during trial by failing to
disclose this exculpatory evidence during the time of trial. Schandel attached no affidavits
or other evidentiary material to support his claims. On August 28, 2009 the trial court
                                                                                            -4-


summarily denied Schandel's motion.
                           Petition for Post-conviction Relief
       {¶9}   Schandel's appellate brief purports to raise a number of assignments of
error, such as prosecutorial misconduct, unlawful search and seizure, prejudicial joinder,
judicial bias, and witness credibility. Schandel has failed to provide separate arguments
or legal support for these issues, and thus we shall not address these issues separately
due to a lack of briefing. App.R. 12(A)(2); Wells Fargo Bank, N.A. v. Jarvis, 7th Dist. No.
08 CO 30, 2009-Ohio-3055, at ¶31-33.              The only recognizable argument within
Schandel’s brief and reply brief is that the trial court erroneously failed to vacate his
October 6, 2006 theft conviction after setting the restitution amount to zero on July 6,
2009, subsequent to a rehearing on restitution.
       {¶10} Schandel's motion to the trial court fulfills the definition of a petition for post-
conviction relief. "Where a criminal defendant, subsequent to his or her direct appeal,
files a motion seeking vacation or correction of his or her sentence on the basis that his or
her constitutional rights have been violated, such a motion is a petition for post-conviction
relief as defined in R.C. 2953.21." State v. Reynolds, 79 Ohio St.3d 158, 1997-Ohio-304,
679 N.E.2d 1131, syllabus. Schandel's motion meets this definition because the motion
was filed after the time expired for filing a timely direct appeal, and the motion asserts that
the trial court's judgment is void and should be vacated due to a denial of Schandel's
constitutional rights. Reynolds at 160.
       {¶11} R.C. 2953.21 and R.C. 2953.23 govern petitions for post-conviction relief.
Under R.C. 2953.21, relief from a judgment or sentence is available for a person
convicted of a criminal offense who shows that "there was such a denial or infringement
of the person's rights as to render the judgment void or voidable under the Ohio
Constitution or the Constitution of the United States [.]" See also, State v. Calhoun, 86
Ohio St.3d 279, 282-283, 1999-Ohio-102, 714 N.E.2d 905.
       {¶12} A petition for post-conviction relief does not allow a defendant to appeal his
criminal conviction, and only allows a collateral civil attack on the judgment. State v.
Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, at ¶48, quoting State v.
Steffen, 70 Ohio St.3d 399, 410, 1994-Ohio-111, 639 N.E.2d 67. Post-conviction relief is
                                                                                         -5-


a narrow remedy, and res judicata bars any claim that was or could have been raised at
the time of trial or a direct appeal. Steffen at 410.
       {¶13} If a defendant's request is untimely, or if it is a second or successive petition
for post-conviction relief, R.C. 2953.23(A) prohibits the trial court from considering the
petition unless (1) the petitioner shows that he was unavoidably prevented from
discovering the facts upon which his claim for relief is based, or (2) after the 180-day time
period expired, the United States Supreme Court recognized a new federal or state right
that applies retroactively to the petitioner and is the basis of his claim for relief. R.C.
2953.23(A)(1)(a). The petitioner then must also show "by clear and convincing evidence
that, but for constitutional error at trial, no reasonable factfinder would have found [him]
guilty of the offense of which [he] was convicted." R.C. 2953.23(A)(1)(b).
       {¶14} Unless the appellant satisfies the requirements of R.C. 2953.23(A), the trial
court lacks jurisdiction to consider an untimely or successive petition for post-conviction
relief. State v. Haschenburger, 7th Dist. No. 08-MA-223, 2009-Ohio-6527, at ¶12; State
v. Kemp, 7th Dist. No. 09-MA-21, 2009-Ohio-6399, at ¶14.
       {¶15} In this case, the trial court's judgment entry was filed on October 26, 2006,
and Schandel filed a post-conviction relief petition on April 11, 2007. This Court must
therefore construe Schandel’s July 27, 2009 motion as a successive post-conviction relief
petition under R.C. 2953.23(A). Because Schandel's petition is successive, Schandel
was required to show that he satisfied the requirements of R.C. 2953.23(A)(1) before the
trial court could consider the merits of his petition.
       {¶16} Schandel's petition makes no argument that there is a new retroactive
federal or state right that applies to him. Schandel did not attach any affidavits or other
evidence to support the claims in his petition. Further, Schandel did not present any new
facts regarding the merits of his case, nor any explanation as to why such facts were
previously undiscoverable. Schandel's arguments regarding prosecutorial misconduct,
illegal search and seizure, prejudicial joinder, judicial bias, and witness credibility are
completely unsupported by any new claims of previously undiscoverable facts. Because
Schandel has failed to provide any evidence that was not already of record during the
time of a direct appeal, these arguments are barred by the doctrine of res judicata. State
                                                                                            -6-


v. Davis, 7th Dist. No. 08 MA 174, 2009-Ohio-4634, at ¶15. The only new incident that
appears to have inspired Schandel's petition for post-conviction relief was the July 2,
2009 rehearing on the issue of restitution.
       {¶17} One could interpret Schandel's argument on appeal to mean that he was
unavoidably prevented from discovering that the prosecution had no proof of the amount
of Schandel's theft until the prosecution offered to not seek restitution at the time of
Schandel's July 2, 2009 rehearing. Even if one were to make this somewhat generous
interpretation of Schandel's argument, it fails.
       {¶18} The prosecution's recommendation of a zero restitution amount to the trial
court does not constitute evidence of any facts pertinent to Schandel's underlying
conviction for theft.    A prosecutor's sentencing recommendation simply does not
constitute evidence. The ordering of restitution in a criminal case is a decision within the
discretion of the trial court. R.C. 2929.18(A)(1). It is true that the trial court's selection of
a certain amount of restitution for a theft offense must be supported by some competent
credible evidence. Schandel, supra, at ¶154. However, this absolutely does not mean
that the decision to accept a prosecutor's recommendation not to charge restitution
somehow constitutes evidence that no theft offense was committed.
       {¶19} The actions of the State and the trial court during the July 2, 2009 rehearing
on restitution did not constitute previously undiscoverable facts, nor did those alleged
facts indicate by any standard of evidence that no reasonable fact-finder would have
found Schandel guilty of theft. Schandel therefore did not meet the requirements of R.C.
2953.23(A), and the trial court did not have jurisdiction to consider Schandel's successive
petition for post-conviction relief. The trial court did not err in summarily dismissing
Schandel's Motion to Vacate Conviction. Accordingly, the judgment of the trial court is
affirmed.
Donofrio, J., concurs.
Waite, J., concurs.
