[Cite as State v. Neal, 2015-Ohio-3666.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                    Court of Appeals No. L-13-1157

        Appellee                                 Trial Court No. CR0200902368

v.

Rochelle Neal                                    DECISION AND JUDGMENT

        Appellant                                Decided: September 10, 2015

                                           *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        David F. Cooper, Assistant Prosecuting Attorney, for appellee.

        J. Peter Millon and Sarah K. Skow, for appellant.

                                           *****

        JENSEN, J.

        {¶ 1} Appellant, Rochelle Neal, appeals from a judgment of the Lucas County

Court of Common Pleas that denied his petition for postconviction relief. Finding that

the petition was properly denied, we affirm the judgment of the Lucas County Court of

Common Pleas.
       {¶ 2} On May 29, 2007, in case No. CR0200702127, appellant was indicted by the

Lucas County Grand Jury on one count of felonious assault, in violation of R.C.

2903.11(A)(1), a felony of the second degree. On September 25, 2007, appellant entered

a plea of guilty pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27

L.Ed.2d 162 (1970), to the lesser included offense of attempted felonious assault, in

violation of R.C. 2923.02(A) and 2903.11(A)(1), a felony of the third degree. Appellant

was sentenced to two years in prison.

       {¶ 3} On January 11, 2009, the victim died. Three months later, in case No.

CR0200900731, appellant was indicted by the grand jury on one count of murder, in

violation of R.C. 2903.02(B) and 2929.02.

       {¶ 4} On July 15, 2009, the Lucas County prosecutor filed an information

charging appellant with involuntary manslaughter, a violation of R.C. 2903.04(A), a

felony of the first degree. The following day, appellant entered an Alford plea to that

charge. Appellant was sentenced to nine years in prison, to be served concurrently with

the two-year prison sentence imposed in case No. CR0200702127. A nolle prosequi was

entered on the murder charge in case No. CR0200900731.

       {¶ 5} On May 23, 2013, appellant pro se, moved to vacate the involuntary

manslaughter conviction pursuant to the Ohio Supreme Court’s decision in State v.

Carpenter, 68 Ohio St.3d 59, 623 N.E.2d 66 (1993). The trial court denied the motion

asserting, in part, that the argument could have been raised on direct appeal and was,

therefore, barred under the doctrine of res judicata.




2.
       {¶ 6} In his brief, appellant has raised two assignments of error for our

consideration.

              I. Appellant’s conviction in Case No. CR09-2368 must be vacated

       because the Trial Court erred in denying Defendant-Appellant[’s] Motion

       to Vacate the Judgment based on an improper application of [Carpenter].

              II. The Appellant was denied his right to due process under the Fifth

       and Fourteenth Amendments to the United States Constitution when the

       State failed to disclose their knowledge of the victim’s medical condition to

       the trial court.

       {¶ 7} In his first assignment of error, appellant argues that the trial court did not

properly apply the Supreme Court’s ruling in Carpenter,1 supra, when it denied his

motion to vacate his conviction for involuntary manslaughter. In his second assignment

of error, appellant asserts that he was denied due process when the trial court refused to

allow a hearing on his motion to vacate. Since common legal principles are

determinative of both assignments of error, we will consider them together.

       {¶ 8} Appellant’s May 23, 2013 motion to vacate judgment and void plea

agreement, despite its caption, meets the definition of a motion for postconviction relief




1
  In Carpenter, the Supreme Court of Ohio held that the “state cannot indict a defendant
for murder after the court has accepted a negotiated guilty plea to a lesser offense and the
victim later dies of injuries sustained in the crime, unless the state expressly reserves the
right to file additional charges on the record at the time of the defendant’s plea.”
Carpenter at syllabus.


3.
set forth in R.C. 2953.21(A)(1). See State v. Reynolds, 79 Ohio St.3d 158, 160, 679

N.E.2d 1131 (1997).

       {¶ 9} Pursuant to R.C. 2953.21(A)(2), if no direct appeal is taken from the

judgment of conviction, a petition for postconviction relief must be filed no later than 180

days after the expiration of the time for filing the appeal. In this case, appellant was

convicted and sentenced on August 4, 2009, and did not file his petition until June 18,

2013, which is more than three and one-half years beyond the statutory time limit.

       {¶ 10} A trial court has no jurisdiction to consider an untimely petition for

postconviction relief unless the untimeliness is excused under R.C. 2953.23(A)(1). See

State v. Gonzales, 6th Dist. No. WD-09-078, 2010-Ohio-4703, ¶ 15. Pursuant to R.C.

2953.23(A)(1)(a), an untimely petition may be entertained if the petitioner shows either

(1) that he or she was unavoidably prevented from discovering facts necessary to assert

the claim for relief, or (2) that the United States Supreme Court recognized a new federal

or state right that applies retroactively to a person in the petitioner’s situation.

       {¶ 11} Here, appellant argues that prior to the plea agreement in case No.

CR0200702127, the state knew the victim would likely die from her injuries. Appellant

asserts that he was unavoidably prevented from discovery of facts necessary to assert his

claim because “[o]nly the State was aware of what it actually knew, and the State did not

disclose this information to appellant.” We are unpersuaded by appellant’s argument

because the state’s awareness has no bearing on how appellant was allegedly unavoidably

delayed in timely filing his petition for postconviction relief.




4.
       {¶ 12} Further, if appellant, at the time he entered the plea in case No.

CR0200702127, had any expectation that the plea would end criminal prosecution based

on the incident, he should have made that expectation known prior to the expiration of the

statutory time limit for postconviction petitions in this case. See State v. Harrison, 122

Ohio St.3d 512, 2009-Ohio-3547, 912 N.E.2d 1106, ¶ 45 (“The focus in Carpenter was

on the reasonableness of the defendant’s belief that the plea agreement would terminate

any future charges based upon the same incident.”).

       {¶ 13} Finally, we agree with the trial court’s conclusion that appellant’s petition

for postconviction relief was barred by the doctrine of res judicata. “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, 226 N.E.2d 104 (1967).

       {¶ 14} In this case, appellant could have raised the Carpenter holding as a defense

to the information charging involuntary manslaughter, or on an appeal from the judgment

entered as a result of his plea to that offense. He failed to do so.

       {¶ 15} Pursuant to the above, appellant’s first and second assignments of errors

are not well-taken. The judgment of the Lucas County Court of Common Pleas is

affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24(A).


                                                                         Judgment affirmed.



5.
                                                                      State v. Neal
                                                                      C.A. No. L-13-1157




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
James D. Jensen, J.                                        JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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