[Cite as State v. Houston, 2012-Ohio-3569.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 97628




                                      STATE OF OHIO

                                                       PLAINTIFF-APPELLEE

                                                 vs.



                                 WILBERT HOUSTON
                                                             DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-303894

        BEFORE:          Jones, J., Boyle, P.J., and Sweeney, J.

        RELEASED AND JOURNALIZED:                      August 9, 2012
FOR APPELLANT

Wilbert Houston, Pro se
Inmate No. 284-618
Marion Correctional Institution
P.O. Box 57
Marion, Ohio 43302


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Katherine Mullin
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:

       {¶1} Defendant-appellant, Wilbert Houston, appeals the trial court’s denial of his

third postconviction petition. We affirm.

       {¶2} In 1993, a jury convicted Houston of aggravated murder with a firearm

specification. The trial court sentenced Houston to life imprisonment for aggravated

murder consecutive to three years for the firearm specification.    Houston appealed, and

his conviction was affirmed.    State v. Houston, 8th Dist. No. 67049, 1995 WL 248520

(Apr. 27, 1995). In 1996, Houston filed his first petition for postconviction relief. The

trial court denied the petition on the grounds of res judicata and failure to submit

evidentiary documents containing sufficient operative facts demonstrating petitioner was

entitled to relief.   Houston appealed, and the denial of postconviction relief was

affirmed. State v. Houston, 8th Dist. No. 72383, 1998 WL 83206 (Feb. 26, 1998).

       {¶3} In 2010, Houston filed a second postconviction petition, arguing his

indictment failed to give him notice of the charges against him, he was denied a fair trial,

and he received ineffective assistance of trial counsel.       The trial court denied his

petition, and this court affirmed.          State v. Houston, 8th Dist. No. 95994,

2011-Ohio-2798.

       {¶4} In 2011, Houston filed a motion titled “motion for immediate discharge from

custody Crim.R. 32(A)(1) and Sup.R. 39(B)(4),” in which he argued that his indictment

was defective, his sentencing journal entry was defective, his sentencing hearing was
delayed, and his trial counsel was ineffective. The trial court denied his motion.     It is

from this decision that Houston now appeals, raising four assignments of error for our

review:

      I.    Appellant’s indictment is unconstitutionally vague, indefinite,
      uncertain, or insufficient, as a matter of statutory law and fails to give him
      sufficient notice of charge in order to prepare a defense.

      II. The trial court’s failure to comply with Crim.R. 32(C) of the Ohio
      Rules of Criminal Procedure violated his substantial rights in not providing
      the time stamp to the clerk to indicate journalization.

      III. Denial was improper because the petition was supported with
      evidentiary material warranting a hearing.

      IV. Denial was improper because the state failed to respond and the trial
      court denying procedural due process when failing to allow state’s response
      [sic] and issuing findings of fact and conclusions of law.

      {¶5} Even though not titled as such, Houston’s motion for immediate discharge

was a postconviction petition. State v. Alexander, 8th Dist. No. 95995, 2011-Ohio-1380,

¶12, appeal not allowed by 128 Ohio St.3d 1559, 2011-Ohio-2905, 949 N.E.2d 45, citing

State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, 773 N.E.2d 522

      ([w]here a criminal defendant, subsequent to a 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
      postconviction relief as defined in R.C. 2953.21.)

      {¶6} As in his first and second postconviction petitions, Houston’s current claims

are barred by the doctrine of res judicata.      The doctrine of res judicata excludes

subsequent actions or postconviction petitions involving the same legal theory of recovery

as the previous action or petition as well as claims that could have been presented in the
first action or postconviction petition.        State v. Sevayega, 8th Dist. No. 92499,

2009-Ohio-5008, ¶ 19, citing State v. Sawyer, 8th Dist. No. 91496, 2009-Ohio-2391.

         {¶7} All of Houston’s current claims have already been raised, or could have been

raised, on direct appeal or in his first petition for postconviction relief.       They are

therefore now barred by res judicata.       Houston, 2011-Ohio-2798, ¶ 11, citing State v.

Perry 10 Ohio St.2d 175, 226 N.E.2d 104 (1967). Moreover, his petition was untimely

filed.    Houston, 2011-Ohio-2798, ¶ 15.         Because Houston’s claims are barred by

principles of res judicata, the trial court properly denied his motion.

         {¶8} The assignments of error are overruled.

         {¶9} Judgment affirmed.

         It is ordered that appellee recover from appellant costs herein taxed.

         The court finds there were reasonable grounds for this appeal.

         It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated.        Case remanded to the trial court

for execution of sentence.

         A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




LARRY A. JONES, SR., JUDGE

MARY J. BOYLE, P.J., and
JAMES J. SWEENEY, J., CONCUR
