[Cite as State v. Handcock, 2016-Ohio-7096.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      CLARK COUNTY

 STATE OF OHIO                                       :
                                                     :
         Plaintiff-Appellee                          :   Appellate Case No. 2016-CA-3
                                                     :
 v.                                                  :   Trial Court Case No. 2008-CR-166
                                                     :
 JAMES HANDCOCK, JR.                                 :   (Criminal Appeal from
                                                     :   Common Pleas Court)
         Defendant-Appellant                         :
                                                     :

                                                ...........

                                               OPINION

                         Rendered on the 30th day of September, 2016.

                                                ...........

MEGAN M. FARLEY, Atty. Reg. No. 0088515, Assistant Clark County Prosecuting
Attorney, 50 East Columbia Street, Fourth Floor, Springfield, Ohio 45502
       Attorney for Plaintiff-Appellee

JAMES HANDCOCK, JR., Inmate No. 587-233, Chillicothe Correctional Institution, P.O.
Box 5500, Chillicothe, Ohio 45601
      Defendant-Appellant-Pro Se

                                               .............




WELBAUM, J.
                                                                                          -2-




       {¶ 1} Defendant-appellant, James Handcock, Jr., appeals pro se from a decision

of the Clark County Court of Common Pleas rejecting his motion requesting permission

to file a successive petition for post-conviction relief. For the reasons outlined below, the

judgment of the trial court will be affirmed.

       {¶ 2} In 2008, Handcock was charged by indictment with three counts of felonious

assault, one count of discharging a firearm on or near prohibited premises, one count of

having weapons while under disability, one count of carrying a concealed weapon, and

one count of tampering with evidence. Handcock originally entered a plea of not guilty

by reason of insanity (“NGRI”) and raised the issue of his competency to stand trial. The

trial court thereafter ordered Handcock to undergo a competency evaluation, which

indicated that he was indeed competent to stand trial.

       {¶ 3} Following Handcock’s competency determination, the trial court held a two-

day jury trial. At trial, the State dismissed the tampering with evidence charge and the

trial court dismissed the discharging a firearm charge. The jury then convicted Handcock

of one felonious assault charge with a firearm specification and acquitted him of the other

two felonious assault charges. Handcock was also convicted of carrying a concealed

weapon and having weapons while under disability. The trial court imposed a prison

term of 3 years for the firearm specification, 8 years for felonious assault, 5 years for

having weapons while under disability, and 18 months for carrying a concealed weapon,

all to be served consecutively, for a total sentence of 17.5 years in prison.

       {¶ 4} Handcock thereafter appealed from his conviction alleging that his felonious

assault conviction was against the manifest weight of the evidence. In addition, we
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permitted supplemental briefing on issues concerning Handcock’s NGRI plea.                After

reviewing these issues, we affirmed Handcock’s conviction. State v. Handcock, 2d Dist.

Clark No. 2008 CA 85, 2009-Ohio-4327 (Handcock I).

       {¶ 5} In 2010, Handcock moved the trial court to vacate his sentence on grounds

that it was void. Handcock argued that his sentence was void because: (1) the trial court

failed to make statutory findings before imposing consecutive sentences; and (2) he was

not correctly informed at sentencing regarding post-release control.           The trial court

overruled the motion to vacate and Handcock appealed. We affirmed the trial court’s

decision. State v. Handcock, 2d Dist. Clark No. 2010 CA 76, 2011-Ohio-2559 (Handcock

II).

       {¶ 6} In 2012, Handcock filed a second motion to vacate his sentence. In that

motion, Handcock noted that the verdict form for carrying a concealed weapon neither

specified the degree of the offense, nor set forth facts making the offense a fourth-degree

felony, as opposed to a first-degree misdemeanor, which is the default offense level for

carrying a concealed weapon.        R.C. 2923.12(F)(1).      Handcock argued that his trial

counsel was ineffective for having failed to raise that issue at trial, rendering his conviction

for carrying a concealed weapon as a fourth-degree felony void. The trial court overruled

the motion to vacate and Handcock once again appealed. We affirmed the trial court’s

decision, finding that Handcock’s claim was barred by res judicata. State v. Handcock,

2d Dist. Clark No. 2012-CA-87, 2013-Ohio-3275 (Handcock III).

       {¶ 7} On January 11, 2016, Handcock filed the motion subject of this appeal, a

motion requesting permission to file a successive petition for post-conviction relief

pursuant to R.C. 2953.23. In support of this motion, Handcock argued that he received
                                                                                           -4-


ineffective assistance of counsel because his trial counsel did not challenge his

competency evaluation or request an independent competency evaluation by an

unbiased examiner.

       {¶ 8} Although signed by Handcock, the motion at issue indicates that an inmate

named Robert Hillman prepared the motion on Handcock’s behalf. An affidavit signed

by Hillman was attached to the motion averring that: (1) Handcock was unable to

represent himself in the matter due to a mental disorder and lack of legal skills; (2) no

public defender was available to assist Handcock with his legal filings; (3) Handcock could

not afford legal counsel; and (4) Hillman was not attempting to illegally practice law by

assisting Handcock with the motion.

       {¶ 9} On January 28, 2016, the trial court issued an entry indicating that it would

not accept Handcock’s motion on grounds that it was filed by an inmate engaged in the

unauthorized practice of law. Handcock now appeals from that decision, raising the

following single assignment of error for review:

       THE APPELLANT WAS DENIED HIS 1ST, 5TH, 6TH, AND 14TH

       AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION,

       WHERE HE WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL

       COUNSEL DURING THE PRE-TRIAL INVESTIGATIVE STAGES.

       {¶ 10} Under his sole assignment of error, Handcock claims that he received

ineffective assistance of counsel because his trial counsel did not challenge his

competency evaluation that was submitted to the trial court or request an independent

competency evaluation. Handcock does not address the fact that the trial court did not

rule on the merits of his motion requesting permission to file a successive petition for post-
                                                                                        -5-


conviction relief, but rather rejected the motion on grounds that it was prepared by an

inmate engaged in the unauthorized practice of law.

       {¶ 11} “ ‘[A] trial judge has the ethical duty to prevent unauthorized practice of

law[.]’ ” State v. Kielar, 2d Dist. Miami No. 95-CA-34, 1996 WL 200612, *3 (Apr. 19,

1996), quoting State v. Harding, 3d Dist. Marion No. 9-93-8, 1993 WL 312905, *2 (Aug.

19, 1993). “The unauthorized practice of law occurs when a person who is not admitted

to the Ohio bar or otherwise certified to practice law by the Supreme Court provides legal

services to another person in this state.” Lorain Cty. Bar Assn. v. Zubaidah, 140 Ohio

St.3d 495, 2014-Ohio-4060, 20 N.E.3d 687, ¶ 44, citing Gov.Bar R. VII(2)(A).          This

includes the “ ‘ “preparation of pleadings and other papers incident to actions and special

proceedings and the management of such actions and proceedings on behalf of clients

before judges and the courts.” ’ ” Disciplinary Counsel v. Brown, 142 Ohio St.3d 459,

2015-Ohio-1819, 32 N.E.3d 444, ¶ 12, quoting Land Title Abstract & Trust Co. v.

Dworken, 129 Ohio St. 23, 28, 193 N.E. 650 (1934), quoting People v. Alfani, 227 N.Y.

334, 337-338, 125 N.E. 671 (1919). “As an appropriate remedy a court may strike a filing

by a non-attorney.” State v. Block, 8th Dist. Cuyahoga No. 87488, 2007-Ohio-1979, ¶ 6,

citing Union Sav. Assn. v. Home Owners Aid, Inc., 23 Ohio St.2d 60, 262 N.E.2d 558

(1970). (Other citations omitted.) Therefore, any filing by a non-attorney is viewed as

a legal nullity. (Citation omitted.) Kessler v. Totus Tuus, L.L.C., 11th Dist. Ashtabula

No. 2008-A-0011, 2009-Ohio-1147, ¶ 8.

       {¶ 12} Nevertheless, the Supreme Court of Ohio has recognized that while the

activities of “jailhouse lawyers,” such as Robert Hillman, would clearly be considered the

unauthorized practice of law if performed outside the confines of the prison system, such
                                                                                          -6-


practice may only be curtailed if the prison at issue provides its inmates with “a reasonable

alternative to assistance from jailhouse lawyers.” Disciplinary Counsel v. Cotton, 115

Ohio St.3d 113, 2007-Ohio-4481, 873 N.E.2d 1240, ¶ 8, citing Johnson v. Avery, 393 U.S.

483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969).

       {¶ 13} In this case, we need not address the issue of whether Handcock had a

reasonable alternative to a “jailhouse lawyer” because regardless of that issue, it is clear

that the ineffective assistance claim raised in Handcock’s motion is barred by res judicata.

“Any ineffective assistance claim relating to matters contained within the record should

be brought through a direct appeal.” State v. Lane, 2d Dist. Greene No. 2014-CA-54,

2015-Ohio-2712, ¶ 13, citing State v. Wilson, 2d Dist. Montgomery No. 23129, 2013-Ohio-

180, ¶ 47-48. If an alleged claim of ineffective assistance “ ‘could have been raised and

fully litigated on direct appeal, the issue is res judicata and may not be litigated in a

post[-]conviction proceeding.’ ” Id., quoting State v. Franklin, 2d Dist. Montgomery No.

19041, 2002-Ohio-2370, ¶ 9, citing State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d

104 (1967).

       {¶ 14} As previously discussed, Handcock claimed his trial counsel provided

ineffective assistance by failing to challenge the competency evaluation submitted to the

trial court and by failing to request an independent competency evaluation. This claim

clearly relates to matters within the record and could have been raised during Handcock’s

direct appeal. Accordingly, it is barred by res judicata. Therefore, even if we assume

arguendo that the trial court should not have rejected Handcock’s motion on the basis of

unauthorized practice of law, the trial court nevertheless properly rejected Handcock’s

motion. See State v. Hall, 2d Dist. Miami No. 97 CA 22, 1997 WL 691509, *1 (Oct. 24,
                                                                                         -7-

1997), citing Newcomb v. Dredge, 105 Ohio App. 417, 152 N.E.2d 801 (2d Dist.1957)

(“[i]f a trial court has stated an erroneous basis for its judgment, an appellate court will

affirm the judgment if it is legally correct on other grounds, that is, when it achieves the

right result for the wrong reasons”).

       {¶ 15} Handcock’s sole assignment of error is overruled and the judgment of the

trial court is affirmed.

                                        .............



DONOVAN, P.J. and FAIN, J., concur.



Copies mailed to:

Megan M. Farley
James Handcock, Jr.
Hon. Douglas M. Rastatter
