[Cite as State v. Williams, 2013-Ohio-2989.]
                                    IN THE COURT OF APPEALS OF OHIO
                                       FOURTH APPELLATE DISTRICT
                                           LAWRENCE COUNTY


STATE OF OHIO,                                                  :

         Plaintiff-Appellee,                                    :    Case No. 12CA22

         vs.
                                                                :
TIMOTHY T. WILLIAMS,                                                 DECISION AND JUDGMENT ENTRY
                                                                :
         Defendant-Appellant.
                                       :
_________________________________________________________________

                                                    APPEARANCES:

APPELLANT PRO SE:                      Timothy T. Williams, #638-889, P.O. Box 5500, Chillicothe, Ohio
                                             45601, Pro Se

COUNSEL FOR APPELLEE:                            J.B. Collier, Jr., Lawrence County Prosecuting Attorney,
                                                 and Robert C. Anderson, Lawrence County Assistant
                                                 Prosecuting Attorney, Lawrence County Courthouse, One
                                                 Veterans Square, Ironton, Ohio 45638

CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 6-27-13
ABELE, J.

         {¶ 1} This is an appeal from a Lawrence County Common Pleas Court judgment that

overruled a “motion to vacate” filed by Timothy T. Williams, defendant below and appellant

herein. Appellant assigns the following errors for review:1:

                   FIRST ASSIGNMENT OF ERROR:

                   “INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL ON

         1
            Appellant’s brief does not contain a separate statement of the assignments of error as App.R. 16(A)(3) requires.
Thus, we take these assignments of error from scattered portions of his argument.
LAWRENCE, 12CA22                                                                                   2

               NOVEMBER 4, 2010.”

               SECOND ASSIGNMENT OF ERROR:

               “THE TRIAL COURT COMMITTED PLAIN ERROR BY NOT
               TREATING THE FIVE OFFENSES AS ALLIED OFFENSES OF
               SIMILAR IMPORT.”

               THIRD ASSIGNMENT OF ERROR:

               “THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
               DISMISSING THE APPELLANT [sic] MOTION TO VACATE,
               R.C. 2953.21 FILED ON SEPT. 5, 2012.”

               FOURTH ASSIGNMENT OF ERROR:

               “APPELLANT [sic] MOTION TO VACATE R.C. 2953.21 WAS
               FACIALLY VALID, PURSUANT TO R.C. 2953.23(A)(1)(2),
               [sic] AND THE MARCH 21, 2012 [sic] OF THE U.S. SUPREME
               COURT DECISION, MISSOURI -v- FRYE, 132 S. Ct. 1399.”

       {¶ 2} In 2010, appellant pled guilty, and was convicted, of three counts of aggravated

drug trafficking and two counts of aggravated possession of drugs. Appellant received a

cumulative eight year sentence. No appeal was taken from that judgment.

       {¶ 3} In 2011, appellant filed a motion to vacate sentence and asserted various

arguments including, inter alia, that some of the five charges are allied offenses of similar import

and should have merged for purposes of sentencing. The appellee agreed and the trial court

ultimately ruled that counts two and four of the indictment merged, as well as counts three and

five. The trial court issued a new entry to that effect on November 10, 2011, but nevertheless

imposed an eight year cumulative total of imprisonment.

       {¶ 4} We vacated that judgment in State v. Williams, 4th Dist. No. 11CA25,

2012-Ohio-3401 (Williams I), for two reasons. First, the motion to vacate was, in fact, a petition
LAWRENCE, 12CA22                                                                                     3

for postconviction relief and was required to be filed no later than one hundred eighty days after

his conviction. It was not. Furthermore, appellant also failed to satisfy the criteria for late

filing under either R.C. 2953.23(A)(1) or R.C. 2953.23(A)(2). Williams I, at ¶¶11-13. Second,

we held that the trial court lacked jurisdiction to modify its own judgment under the

circumstances of the case. Id. at ¶¶10&14.

       {¶ 5} On September 5, 2012, less than two months after our decision in that case,

appellant filed the present “motion to vacate” (or petition for postconviction relief). This time,

appellant argued that he should be allowed to file out of rule pursuant to 2953.23(A)(1) because

(1) he was “unavoidably prevented from discovery of the facts” necessary to present his claim,

and (2) the United States Supreme Court, in 2012, created a new federal right that applied to him

retrospectively.

       {¶ 6} Eight days later, on September 13, 2012, the trial court overruled the motion.

The court reasoned that our decision in Williams I is “dispositive” of the issues raised in

appellant’s motion. This appeal followed.




                                                  I

       {¶ 7} We jointly consider appellant's first two assignments of error because they relate

to the alleged problems with his original conviction. As noted earlier, however, appellant did

not appeal his original conviction. His claims of ineffective assistance of trial counsel and plain

error could have been, and should have been, raised in a first appeal of right. The doctrine of res

judicata now bars appellant from raising them at this stage of the proceeding. State v. Lofton, 4th
LAWRENCE, 12CA22                                                                                      4

Dist. No. 12CA21, 2013-Ohio-1121, at ¶8; State v. Beach, 4th Dist. No. 11CA4,

2012–Ohio–1630, at ¶5, fn. 2; State v. Evans, 4th Dist. No. 09CA20, 2010–Ohio–5838, at ¶12.

          {¶ 8} Thus, we overrule appellant’s first and second assignments of error for this

reason.

                                                    II

          {¶ 9} We jointly consider appellant’s third and fourth assignments of error because they

address the issue of whether the trial court correctly overruled his petition for postconviction

relief. We conclude that it did.

          {¶ 10} As we noted in Williams I, appellant filed his petition out of rule. Consequently,

appellant has to satisfy either R.C. 2953.23(A)(1) or R.C. 2953.23(A)(2) before the trial court

could consider it on the merits. 2012-Ohio-3401, at ¶12. Further, we noted that appellant “did

not even attempt to satisfy” either of those two statutes. Id. at ¶13. This time, appellant

apparently made an attempt, even if the attempt fell far short of what is required.

          {¶ 11} Appellant's petition argued that he should have been permitted to file out of rule

on the basis of R.C. 2953.23(A)(1). That statute states in pertinent part:

          “(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
LAWRENCE, 12CA22                                                                                        5

        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.”

        {¶ 12} At the outset, we note that appellant had to satisfy both (A)(1)(a) and (A)(1)(b).

Our review of the petition's “Extension of Time Requirement” portion reveals no argument that

but for constitutional error at trial, no reasonable factfinder would have found him guilty. Thus,

his petition fails on that basis alone.

        {¶ 13} In addition, appellant's “Extension of Time Requirement” alleges that he “was

unavoidably prevented from discovery of the facts” upon which he relies to make his claim.

However, appellant fails to explain (1) what, precisely, those facts are, and (2) why, exactly, he

was unavoidably prevented from discovering them. We emphasize that the language of R.C.

2953.23(A)(1) is not mere “magic words” to simply be included or recited in petitions for

postconviction relief to avoid the time limit. It is, instead, a list of procedural hurdles that must

be overcome to file for postconviction relief out of rule.

        {¶ 14} Finally, appellant also cites Missouri v. Frye, ___ U.S. ___, 132 S.Ct. 1399, 182

L.Ed.2d 379 (2012), as creating a new federal Constitutional right that applies retrospectively.

Appellant’s reliance on this case is misplaced, however. First, the “right” in that case involved

is the right to effective assistance of trial counsel. This is not a new right, but, rather, one that

state and federal courts have recognized for decades.

        {¶ 15} Second, the circumstances at issue in Frye concerned defense counsel’s failure to
LAWRENCE, 12CA22                                                                                                                 6

communicate plea offers to the appellant before the offers expired. Justice Kennedy, writing for

the majority, stated “[t]his Court now holds that, as a general rule, defense counsel has the duty

to communicate formal offers from the prosecution to accept a plea on terms and conditions that

may be favorable to the accused.” 132 S.Ct. at 1408.

          {¶ 16} In the case at bar, nowhere in the “Extension of Time Requirement” set out in his

petition does appellant assert that his defense counsel failed to communicate to him a plea offer.

To the contrary, the November 4, 2010 hearing transcript shows that trial counsel agreed that the

State's sentencing recommendations “accurately portrays the plea negotiations.” Here, the gist

of both postconviction motions is that appellant is unhappy with the plea agreement.

Accordingly, Frye does not support appellant’s arguments.2 Generally, a ruling on a

postconviction relief motion should not be reversed absent an abuse of a trial court's discretion.

See State v. Fisk, 4th Dist. No. 11CA4, 2011-Ohio-6116, at ¶6; State v. Hicks, 4th Dist. No.

09CA15, 2010-Ohio-89, at ¶11. An abuse of discretion is more than an error of law or

judgment; rather, it implies that a court's attitude is unreasonable, arbitrary or unconscionable.

See State v. Clark, 71 Ohio St.3d 466, 470, 644 N.E.2d 331 (1994); State v. Moreland, 50 Ohio

St.3d 58, 61, 552 N.E.2d 894 (1990).

          {¶ 17} For all of these reasons, we find no merit to appellant’s third and fourth

assignments of error and they, too, are hereby overruled. Consequently, we find no error, nor an

abuse of discretion, in the trial court’s decision to overrule appellant's motion. Accordingly,


          2
              Even assuming, arguendo, that counsel had failed to relay a plea offer to appellant, at least one Ohio appellate
district has concluded that Missouri v. Frye does not create a new retrospective right for purposes of R.C. 2953.23(A)(1). See
State v. Hicks, 8th Dist. No. 99119, 2013-Ohio-1904, at ¶14
LAWRENCE, 12CA22                                                    7

we hereby affirm the trial court's judgment.

                                               JUDGMENT AFFIRMED.
[Cite as State v. Williams, 2013-Ohio-2989.]
                                           JUDGMENT ENTRY


        It is ordered that the judgment be affirmed and that appellee recover of 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 Lawrence County

Court of Common Pleas to carry this judgment into execution.

        A certified copy of this entry shall constitute that mandate

pursuant to Rule 27 of the Rules of Appellate Procedure.

        Hoover, J.: Concurs in Judgment & Opinion
        McFarland, P.J.: Concurs in Judgment Only

                                                               For the Court




                                                                BY:
                                               Peter B. Abele, Judge




                                         NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.
