[Cite as State v. Smith, 2019-Ohio-4501.]




             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                 MAHONING COUNTY

                                            STATE OF OHIO,

                                            Plaintiff-Appellee,

                                                    v.

                                             SAMMIE SMITH,

                                        Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                            Case No. 19 MA 0064


                                   Criminal Appeal from the
                       Court of Common Pleas of Mahoning County, Ohio
                                   Case No. 2009 CR 1197

                                         BEFORE:
                 David A. D’Apolito, Gene Donofrio, Cheryl L. Waite, Judges.


                                               JUDGMENT:
                                                 Affirmed.


 Atty. Paul J. Gains, Mahoning County Prosecutor, and Atty. Ralph M. Rivera, Assistant
 Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503,
 for Plaintiff-Appellee and

 Sammie Smith, Pro Se, #604-140, Ross Correctional Institution, 16149 State Route
 104, P. O. Box 7010, Chillicothe, Ohio 45601, Defendant-Appellant.
                                                                                            –2–


                                  Dated: October 28, 2019


 D’Apolito, J.

       {¶1}    Pro se Appellant, Sammie Smith, appeals from the May 16, 2019 judgment
of the Mahoning County Court of Common Pleas, dismissing his second pro se petition
for postconviction relief without a hearing. On appeal, Appellant again asserts that his
trial counsel was ineffective and that the trial court should have held a hearing on his
latest petition. The record indicates that Appellant’s second petition for postconviction
relief was untimely filed and his claims barred by principles of res judicata. Accordingly,
the trial court properly dismissed Appellant’s second petition without a hearing and the
judgment is affirmed.

                          FACTS AND PROCEDURAL HISTORY

       {¶2}    This court set forth the facts and procedural history underlying Appellant’s
first pro se petition for postconviction relief, filed in April 2012, in State v. Smith, 7th Dist.
Mahoning No. 17 MA 0041, 2017-Ohio-7770:

       Smith was convicted [in August 2011] of multiple counts of aggravated
       burglary, robbery and rape with attached repeat violent offender
       specifications. The indictment and convictions arose from a home invasion
       lasting over an hour wherein Smith dragged the victim from her bed where
       she had been sleeping with her two year old child and subjected her to
       multiple sex acts, locking her in a closet for a time, stealing money from the
       victim and her son, and then forcing her to bathe before he left. State v.
       Smith, 7th Dist. No. 11 MA 0120, 2013-Ohio-756, ¶ 3-15 (Smith I).

       In his direct appeal, Smith’s convictions were upheld as well as parts of his
       sentence. His sentences for two repeat violent offender specifications were
       reversed and the concurrent sentences imposed on the merged aggravated
       burglary and robbery counts were reversed and remanded for a limited
       resentencing hearing for the state to elect which offense it would ask the



Case No. 19 MA 0064
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          trial court to impose a sentence. Id., ¶ 150.[1] Smith’s appeal to the Ohio
          Supreme Court was dismissed as having been improvidently granted.

          While his direct appeal was pending, Smith, through the office of the public
          defender, filed a “Petition to Vacate or Set Aside Judgment of Conviction or
          Sentence” and attached two affidavits. Smith, pro se, supplemented this
          petition five times. Together, these pleadings asserted multiple grounds and
          in general argued ineffective assistance of counsel regarding the
          questioning of State witnesses Michael Cariola and Brenda Gerardi and the
          inability to speak with representatives from Bode Technology. The State
          opposed Smith’s petition with a motion for judgment on the pleadings,
          contending Smith failed to support the petition with competent, credible
          evidence dehors the record. Noting it had not been served with Smith’s
          petition as required by statute, the State conceded the petition was timely.

          The public defender’s office filed a response to the State’s motion for
          judgment on the pleadings, conceding that Smith’s Confrontation Clause
          claims had been rejected by this court in his direct appeal in Smith I.
          Subsequently the public defender’s office moved to withdraw from
          representation due to irreconcilable differences with Smith on how to
          proceed.

          The trial court denied the petition and pro se supplements noting that Smith
          did not demonstrate a denial or infringement of his Constitutional rights or
          assert facts that provide substantive grounds for relief.

Id. at ¶ 2-6.

          {¶3}    Appellant filed another appeal with this court, Case No. 17 MA 0041,
alleging that the trial court erred in dismissing his pro se petition for postconviction relief
and supplements without a hearing concerning ineffective assistance of counsel. This
court affirmed the trial court’s judgment finding that Appellant’s petition was not supported


1 The   trial court later held a limited re-sentencing hearing which only affected one count.


Case No. 19 MA 0064
                                                                                          –4–


by competent, credible evidence and that the issues were barred by res judicata. Smith,
2017-Ohio-7770, ¶ 15.
      {¶4}   On April 24, 2019, Appellant filed a second pro se petition for postconviction
relief. On May 16, 2019 the trial court dismissed Appellant’s second petition without a
hearing as it was untimely filed under R.C. 2953.21 and 2953.23. Appellant filed the
instant appeal and raises two assignments of error.

                           ASSIGNMENT OF ERROR NO. 1

      THE TRIAL COURT ABUSED IT’S (SIC) DISCRETION AND MADE A
      (SIC) ERROR IN JUDGMENT WHEN THE COURT DISMISSED THE
      POSTCONVICTION PETITION FILED APRIL 24, 2019 AS UNTIMELY.

                           ASSIGNMENT OF ERROR NO. 2

      INEFFECTIVE ASSISTANCE OF COUNSEL, COUNSEL FAILED TO
      FULLY     DEVELOP        THE     DEFENSE        THEORY,       AND     ACTUAL
      INNOCENCE. 6 AMENDMENT, 14 AMENDMENT, DUE PROCESS, U.S.
      CONSTITUTION.

      Post-conviction relief is a collateral civil attack on a criminal judgment. State
      v. Steffen, 70 Ohio St.3d 399, 410, 1994-Ohio-111, 639 N.E.2d 67. R.C.
      2953.21 through R.C. 2953.23 govern petitions for post-conviction and
      provide that “any defendant who has been convicted of a criminal offense
      and who claims to have experienced a denial or infringement of his or her
      constitutional rights may petition the trial court to vacate or set aside to the
      judgment and sentence.” State v. Martin, 7th Dist. No. 12 MA 167, 2013-
      Ohio-2881, ¶ 13.

      We apply an abuse of discretion standard when reviewing a trial court’s
      decision to deny a post-conviction relief petition without a hearing. State v.
      Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58. “Abuse
      of discretion means an error in judgment involving a decision that is
      unreasonable based upon the record; that the appellate court merely may


Case No. 19 MA 0064
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       have reached a different result is not enough.” State v. Dixon, 7th Dist. No.
       10 MA 185, 2013-Ohio-2951, ¶ 21.

       “(P)ursuant to R.C. 2953.21(C), a trial court properly denies a defendant’s
       petition for postconviction relief without holding an evidentiary hearing
       where the petition, the supporting affidavits, the documentary evidence, the
       files, and the records do not demonstrate that petitioner set forth sufficient
       operative facts to establish substantive grounds for relief.” State v. Calhoun,
       86 Ohio St.3d 279, 291, 1999-Ohio-102, 714 N.E.2d 905. Substantive
       grounds for relief exist where there was a denial or infringement of the
       petitioner’s constitutional rights so as to render the judgment void or
       voidable. State v. Cornwell, 7th Dist. No. 00-CA-217, 2002-Ohio-5177, ¶ 25.

Smith, 2017-Ohio-7770, ¶ 8-10.

       {¶5}   “A postconviction petition may also be dismissed without a hearing where
the claims are barred by res judicata.” State v. West, 7th Dist. Jefferson No. 07 JE 26,
2009-Ohio-3347, ¶ 24. Res judicata bars any claim or defense that was raised or could
have been raised in an earlier proceeding:

       Under the doctrine of res judicata, a final judgment of conviction bars the
       convicted defendant 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 the trial which
       resulted in that judgment of conviction or on an appeal from that judgment.

State v. Perry, 10 Ohio St.2d 175, 180-181, 226 N.E.2d 104 (1967).

       {¶6}   A petition for postconviction relief must be filed within the statutorily
prescribed time. R.C. 2953.21(A)(2) (a postconviction petition “shall be filed no later than
three hundred sixty-five days after the date on which the trial transcript is filed in the court
of appeals in the direct appeal of the judgment of conviction.”)
       {¶7}   Relevant to the instant appeal, when a postconviction petition is a second
or successive petition, R.C. 2953.23(A) prohibits the court from entertaining the petition


Case No. 19 MA 0064
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absent of a showing by the petitioner that he was unavoidably prevented from discovering
the facts upon which his claim for relief is based or that there is a new state or federal
right that applies retroactively to his situation. R.C. 2953.23(A)(1)(a). The petitioner must
further show by clear and convincing evidence that, “but for constitutional error at trial, no
reasonable fact finder would have found [him] guilty of the offense of which [he] was
convicted.”    R.C. 2953.23(A)(1)(b).        Unless the defendant fulfills the statutory
requirements in R.C. 2953.23(A), the trial court lacks jurisdiction to consider a second or
successive petition for postconviction relief. State v. Staffrey, 7th Dist. Mahoning No. 18
MA 0061, 2018-Ohio-4916, ¶ 14.
       {¶8}   Likewise, “[t]he 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 which could have been presented in the first action or
postconviction petition.” State v. Paige, 7th Dist. Mahoning No. 17 MA 0146, 2018-Ohio-
2782, ¶ 19, citing State v. Cole, 2 Ohio St.3d 112, 443 N.E.2d 169, syllabus (1982). In
other words, res judicata bars claims that could have been raised on direct appeal or any
previous post-judgment motions.
       {¶9}   In this case, Appellant filed his second pro se petition for postconviction
relief 8 years after his conviction and 7 years after his first pro se petition. Therefore,
unless Appellant can demonstrate an exception entitling him to relief, his second petition
is untimely and the trial court was without jurisdiction to consider it.
       {¶10} Appellant does not establish that he was unavoidably prevented from
discovery of the facts upon which he bases his claims or that there is a new state or
federal right that applies to his situation. Thus, Appellant’s second petition does not meet
the exceptions for an untimely petition set forth in R.C. 2953.23, and as a result, the trial
court was without jurisdiction to consider the claims raised within.
       {¶11} Additionally, all of Appellant’s claims were raised, or could have been raised
on direct appeal or in his first petition for postconviction relief. They are, therefore, barred
by res judicata. See Perry, supra, at 180-181. Because Appellant’s second petition for
postconviction relief was untimely filed and his claims barred by principles of res judicata,
the trial court properly dismissed the petition without a hearing.




Case No. 19 MA 0064
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         {¶12} Accordingly, Appellant’s first and second assignments of error are without
merit.

                                      CONCLUSION

         {¶13} For the foregoing reasons, Appellant’s assignments of error are not well-
taken. The judgment of the Mahoning County Court of Common Pleas, dismissing
Appellant’s second pro se petition for postconviction relief without a hearing, is affirmed.




Donofrio, J., concurs.

Waite, P.J., concurs.




Case No. 19 MA 0064
[Cite as State v. Smith, 2019-Ohio-4501.]




         For the reasons stated in the Opinion rendered herein, the assignments of error
 are overruled and it is the final judgment and order of this Court that the judgment of
 the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be taxed
 against the Appellant.
         A certified copy of this opinion and judgment entry shall constitute the mandate
 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
 a certified copy be sent by the clerk to the trial court to carry this judgment into
 execution.




                                        NOTICE TO COUNSEL

         This document constitutes a final judgment entry.
