[Cite as State v. Hairston, 2011-Ohio-3844.]


         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 96437




                                         STATE OF OHIO

                                                          PLAINTIFF-APPELLEE

                                                  vs.

                                CHARLES C. HAIRSTON
                                                          DEFENDANT-APPELLANT



                                               JUDGMENT:
                                                AFFIRMED


                                       Civil Appeal from the
                                 Cuyahoga County Common Pleas Court
                                       Case No. CR-331664

        BEFORE: E. Gallagher, J., Blackmon, P.J., and Rocco, J.

        RELEASED AND JOURNALIZED:                       August 4, 2011
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FOR APPELLANT

Charles C. Hairston, pro se
6111 Butler Avenue
Cleveland, Ohio 44127

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Katherine Mullin
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113




EILEEN A. GALLAGHER, J.:

       {¶ 1} This is an accelerated appeal authorized pursuant to App.R. 11.1

and Loc. R. 11.1.

       {¶ 2} Charles Hairston appeals from the trial court’s denial of his

motion to void judgment. Finding no merit to this appeal, we affirm the

decision of the trial court.

       {¶ 3} Primarily, we note that Hairston’s petititon, which can only be

classified as a petition for postconviction relief, was untimely filed.   See

State v. Reynolds, 79 Ohio St.3d 158, 1997-Ohio-304, 679 N.E.2d 1131; R.C.
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2953.21(A)(1); R.C. 2953.21(A)(2). Moreover, Hairston has made no attempt

to establish the applicability of an exception that would allow the trial court

to consider his untimely petition.                See R.C. 2953.23(A)(1) and R.C.

2953.23(A)(2). Accordingly, the trial court lacked jurisdiction to entertain

his petition for postconviction relief.         State v. Dugger, Franklin App. No.

06AP-887, 2007-Ohio-1243; State v. Russell, Franklin App. No. 05AP-391,

2006-Ohio-383.

      {¶ 4} Even if we were to disregard the above, the arguments raised in

Hairston’s first, second, and third assignments of error are all issues that

could have been raised on his direct appeal. See State v. Hairston (1997),

121 Ohio App.3d 750, 700 N.E.2d 930. Accordingly, all three assignments of

error are barred by the doctrine of res judicata. See State v. Saxon, 109

Ohio St.3d 176, 2006-Ohio-1245, 826 N.E.2d 824; State v. Rodriguez,

Cuyahoga App. No. 95055, 2010-Ohio-4902; State v. Goldsmith, Cuyahoga

App. No. 95073, 2011-Ohio-840.

      {¶ 5} Based on the foregoing, Hairston’s first, second, and third

assignments of error are overruled.

      Judgment affirmed.

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

      The court finds there were reasonable grounds for this appeal.
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       It is ordered that a special mandate be sent to said lower court to carry this judgment

into execution.

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

Rules of Appellate Procedure.




EILEEN A. GALLAGHER, JUDGE

PATRICIA A. BLACKMON, P.J., and
KENNETH A. ROCCO, J., CONCUR


                                        Appendix

Assignments of Error:

       “I. The trial court erred denying appellant’s motion without a
       hearing and failure to merge the convictions on Counts 20 and
       46 violates Fifth Amendment Protections against Double
       Jeopardy.”

       “II. The trial court erred in denying appellant’s motion as
       appellant was sentenced pre-Foster, which required judicial
       findings in order to impose a sentence beyond the minimum.”

       “III.   The judgment of conviction is void wherein the
       conviction was contrary to law wherein Ohio courts have
       consistently held that R.C. 2907.04 is not a lesser included
       offense of R.C. 2907.02(A)(2).”
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