[Cite as State v. Whitman, 2019-Ohio-4140.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                 :     JUDGES:
                                              :     Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                    :     Hon. Craig R. Baldwin, J.
                                              :     Hon. Earle E. Wise, Jr., J.
-vs-                                          :
                                              :
RICHARD WHITMAN                               :     Case No. 2019CA00094
                                              :
        Defendant-Appellant                   :     OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Case No. 2016 CR 2255



JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   October 7, 2019




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

JOHN D. FERRERO                                     RICHARD WHITMAN, PRO SE
Prosecuting Attorney                                Inmate No. A694-724
                                                    Belmont Correctional Institution
By: KRISTINE W. BEARD                               P.O. Box 540
110 Central Plaza, South                            St. Clairsville, OH 43950
Suite 510
Canton, OH 44702-1413
Stark County, Case No. 2019CA00094                                                       2



Wise, Earle, J.

      {¶ 1} Defendant-Appellant, Richard Whitman, appeals the June 6, 2019 judgment

entry of the Court of Common Pleas of Stark County, Ohio, denying his motion to vacate

a void sentence and conviction. Plaintiff-Appellee is state of Ohio.

                        FACTS AND PROCEDURAL HISTORY

      {¶ 2} On April 27, 2017, appellant was found guilty of one count of murder with a

firearm specification in violation of R.C. 2903.02 and 2941.145 and one count of having

weapons under disability in violation of R.C. 2923.13. By judgment entry filed May 5,

2017, the trial court sentenced appellant to an aggregate term of twenty-one years to life

in prison. His conviction was affirmed on appeal with a limited remand for resentencing.

State v. Whitman, 5th Dist. Stark No. 2017CA00079, 2017-Ohio-2924.1

      {¶ 3} On July 24, 2018, appellant filed a motion for postconviction relief, claiming

ineffective assistance of counsel. By judgment entry filed August 21, 2018, the trial court

denied the motion, finding appellant was "just requesting a second bite of the apple," and

it did not find any trial counsel deficiency. The trial court's decision was affirmed on

appeal. State v. Whitman, 5th Dist. Stark No. 2018CA00134, 2019-Ohio-377.

      {¶ 4} On August 13, 2018, the trial court resentenced appellant per this court's

remand. See Judgment Entry filed September 28, 2018.

      {¶ 5} On April 15, 2019, appellant filed a petition to vacate and set aside judgment

of conviction and sentence, claiming in part recent changes to R.C. 2901.05 regarding

the defense of self-defense should be applied retroactively in his case. By judgment entry



1The opinion contains a very lengthy and thorough account of the facts. We hereby
incorporate the facts by reference.
Stark County, Case No. 2019CA00094                                                           3


filed June 6, 2019, the trial court denied the petition, finding the petition was untimely, did

not comply with the requirements for an untimely filing, and was barred by the doctrine of

res judicata.

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

consideration. Appellant has failed to set forth an assignment of error, however we glean

the following from his brief:2

                                               I

       {¶ 7} "THE TRIAL COURT ERRED IN DENYING APPELLANT'S PETITION TO

VACATE AND SET ASIDE JUDGMENT OF CONVICTION AND SENTENCE."

                                               I

       {¶ 8} In his sole assignment of error, appellant claims the trial court erred in

denying his petition to vacate and set aside judgment of conviction and sentence. We

disagree.

       {¶ 9} As determined by the trial court, appellant's April 15, 2019 petition 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 governs

second or successive petitions for postconviction relief and 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




2Theassignments of error listed in appellant's reply brief are not properly before this court.
App.R. 16.
Stark County, Case No. 2019CA00094                                                          4


      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.3



      {¶ 10} In reviewing appellant's April 15, 2019 filing, we find appellant did not satisfy

the requirements of R.C. 2953.23.

      {¶ 11} Changes to R.C. 2901.05, effective March 28, 2019, do not apply

retroactively to appellant's case. See R.C. 1.48 ("A statute is presumed to be prospective

in its operation unless expressly made retrospective"); State v. Krug, 11th Dist. Lake No.



3Subsection   (A)(2) does not apply in this case.
Stark County, Case No. 2019CA00094                                                          5


2018-L-056, 2019-Ohio-926, ¶ 24 (simply because the General Assembly amended R.C.

2901.05 to shift the burden of proof going forward with evidence of an affirmative defense

of self-defense, "it does not equate to finding the former statute unconstitutional"). The

statute as amended does not provide for retroactive application.

       {¶ 12} Any other 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.



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

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

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

for postconviction relief.

       {¶ 15} The sole assignment of error is denied.
Stark County, Case No. 2019CA00094                                           6


      {¶ 16} The judgment of the Court of Common Pleas of Stark County, Ohio is

hereby affirmed.

By Wise, Earle, J.

Delaney, P.J. and

Baldwin, J. concur.

EEW/db
