[Cite as State v. Williamson, 2016-Ohio-7053.]


                     Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 104294




                                      STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                             MICHAEL WILLIAMSON
                                                       DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                  Case No. CR-01-406972-ZA

        BEFORE: E.A. Gallagher, J., Jones, A.J., and Stewart, J.

        RELEASED AND JOURNALIZED: September 29, 2016
FOR APPELLANT

Michael Williamson, pro se
Richland Correctional Institution
P.O. Box 8107
Mansfield, Ohio 44901


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Diane Smilanick
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:

       {¶1} Defendant-appellant Michael Williamson, pro se, appeals the trial court’s

denial of his petition to vacate or set aside his judgment of conviction or sentence. He

contends (1) that the trial court erred in denying his petition for postconviction relief

without issuing findings of fact and conclusions of law (2) that a “history of

vindictiveness” by the trial court warrants a de novo review of his petition for

postconviction relief or the “dismissal” of his convictions and sentence with prejudice

and (3) that the trial court erred in denying his request for counsel in connection with his

petition for postconviction relief. For the reasons that follow, we affirm the trial court’s

judgment.

       Factual and Procedural Background

       {¶2} In December 2001, a jury found Williamson guilty of 12 counts of rape.

In February 2002, the trial court sentenced Williamson to twelve consecutive life prison

terms, postrelease control “for the maximum period allowed,” a $240,000 fine,             and

court costs. Williamson appealed his convictions, arguing that the trial court had made

various erroneous and prejudicial evidentiary rulings and that his trial counsel had

rendered ineffective assistance by failing to object to certain testimony and failing to offer

the testimony of a defense witness. Williamson did not assign any error in his direct

appeal regarding his sentence or the trial court’s advisement regarding postrelease

control.
       {¶3}   On October 17, 2002, while his appeal was pending, Williamson filed, pro

se, a petition to vacate or set aside his judgment of conviction or sentence, raising the

same issues he had raised in his direct appeal.       The trial court denied the petition.

Williamson did not appeal that ruling. On November 27, 2002, this court affirmed

Williamson’s convictions.      State v. Williamson, 8th Dist. Cuyahoga No. 80982,

2002-Ohio-6503 (“Williamson I”).

       {¶4} On December 4, 2002, Williamson filed, pro se, a motion for a new trial.

The trial court denied the motion. Williamson did not appeal that ruling.

       {¶5} Nine years later, in December 2011, Williamson filed, pro se, a motion to

vacate void judgment and order new sentencing hearing, asserting that the trial court had

failed to notify him of the consequences of violating postrelease control both at his

sentencing hearing and in its sentencing journal entry and that his sentence should,

therefore, be vacated and the case remanded for a de novo sentencing hearing.            In

February 2012, the trial court issued a judgment entry denying the motion and further

stating, “[c]ourt will resentence defendant on PRC issue only prior to release from prison

if necessary.” Williamson did not appeal that ruling.

       {¶6} In November 2012, Williamson filed, pro se, a “motion to correct sentence”

in which he again requested a de novo sentencing hearing, alleging (1) that the trial court

had failed to advise him of the mandatory nature of           postrelease control and the

consequences of violating postrelease control, (2) that the trial court failed to advise him

of his right to a direct appeal and (3) that the trial court had failed to consider the
“necessary factors” set forth in R.C. 2929.11 and 2929.12 and to make the “necessary

findings” to impose more than the minimum sentence pursuant to R.C. 2929.11 and

2929.12.   The trial court denied the motion.      Williamson, pro se, appealed the trial

court’s ruling, raising seven assignments of error.     He claimed that the trial court erred

by: (1) failing to advise him of his right to a direct appeal, (2) failing to properly impose

postrelease control, (3) failing to consider the sentencing principles set forth in R.C.

2929.11 and 2929.12, (4) failing to determine the days of jail-time credit, (5) entering an

“incorrect” journal entry, (6) failing to properly advise him of his registration duties as a

sexual predator and (7) not merging the 12 counts of rape at sentencing.             State v.

Williamson, 8th Dist. Cuyahoga No. 99473, 2013-Ohio-3733, ¶ 10 (“Williamson II”).

       {¶7} This court held that because Williamson did not submit the transcript from

the sentencing hearing, it must be presumed that he was properly notified of postrelease

control at the sentencing hearing. Id. at ¶ 16.       It remanded the case to the trial court

“for the limited purpose of correcting its 2002 judgment entry to reflect a full notification

of Williamson’s postrelease control” with a nunc pro tunc entry and held that all other

assignments of error were barred by the doctrine of res judicata. Id. at ¶ 2, 22-23.

       {¶8} On September 30, 2013, the trial court entered a corrected sentencing entry

“to include complete PRC language,” including that postrelease control was mandatory

for five years and advising Williamson of the consequences of violating postrelease

control.   Williamson, once again, appealed the judgment (Appeal No. 100563).

Williamson failed to file the record and the appeal was initially dismissed. However,
upon reconsideration, Williamson was granted leave to file an amended praecipe.          On

appeal, Williamson argued that the trial court had erred in providing the postrelease

control notification by a nunc pro tunc journal entry without conducting a hearing.

Apparently unaware that Williamson’s appeal was pending, the trial court ordered

Williamson to appear for a resentencing hearing and, on February 13, 2014, resentenced

Williamson “in regards to [sic] PRC only,” notifying Williamson that postrelease control

was mandatory for five years and advising him of the consequences of violating

postrelease control.     Williamson appealed from the February 13, 2014 resentencing,

arguing that the trial court lacked jurisdiction to conduct a resentencing hearing while his

appeal was pending and erred in conducting a sentencing hearing limited to the

postrelease control notification instead of a “new sentencing hearing.”

       {¶9} This court consolidated the two appeals for purposes of oral argument and

disposition. Unlike Williamson II, in Appeal Nos. 100563 and 101115, the transcript

from the original sentencing hearing was part of the record on appeal.              State v.

Williamson, 8th Dist. Cuyahoga Nos. 100563 and 101115, 2014-Ohio-3909, ¶ 13-15

(“Williamson III”). With the benefit of the transcript, this court concluded that “it is

now clear that the trial court never advised Williamson at sentencing of any of the

postrelease control provisions and, therefore, the mandate of this court to issue a nunc pro

tunc order was without foundation and that trial court could not nunc what it did not first

tunc.” Id. at ¶ 15.    This court held that the trial court had erred in imposing postrelease

control without conducting a sentencing hearing and had lacked jurisdiction to conduct
the February 13, 2014 resentencing hearing while Williamson’s appeal of the nunc pro

tunc journal entry was pending.          Id. at ¶ 12-15, 18.   This court remanded the case for

“vacation of the order dated February 13, 2014 and a new sentencing hearing limited to

the advisement of postrelease control.” Id. at ¶ 20, 23.

       {¶10} On September 24, 2014, Williamson filed, pro se, a motion to recuse the

trial judge. Williamson claimed that, based upon comments the trial judge had made

during his original sentencing hearing and the trial court’s previous errors in sentencing

him, the trial judge was prejudiced against him and that he “could not get a fair hearing”

if the trial judge were to preside over his resentencing.           The trial court denied the

motion.

       {¶11} On November 6, 2014, the trial court held a resentencing hearing           limited

to   the   postrelease    control   notification.       Once    again, Williamson appealed.

Williamson’s appointed appellate counsel filed a brief pursuant to Anders v. California,

386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and requested leave to withdraw as

counsel.   State v. Williamson, 8th Dist. Cuyahoga No. 102320, 2015-Ohio-4482, ¶ 1

(“Williamson IV”).       This court granted Williamson leave to file his own appellate brief

but he did not do so.      Id. at ¶ 3.    Following an independent review of the record, this

court held that the trial court had complied with the remand as directed in Williamson III

and that the appeal was wholly frivolous pursuant to Anders.            Id. at ¶ 7-9. This court

granted counsel’s request to withdraw and affirmed the trial court’s judgment. Id. at ¶ 9.
      {¶12} On November 16, 2015, Williamson filed, pro se, another petition to vacate

or set aside his judgment of conviction or sentence along with a motion for appointment

of counsel to represent him on his petition for postconviction relief. In his petition,

Williamson asserted 12 “claims,” allegedly arising from his November 6, 2014

resentencing, that he contended warranted vacating or setting aside his convictions and

sentence.   In claims 1-5, Williamson asserted that his “resentencing counsel” provided

ineffective assistance because he failed to raise a number of issues at the November 6,

2014 resentencing hearing, including: (1) that the 12 counts of rape on which Williamson

had been sentenced were “duplicative”; (2) that the trial court had not complied with its

mandate in Williamson II and was required to resentence him “in full”; (3) that the trial

court’s imposition of “an additional punishment” of five years of postrelease control after

Williamson had already served part of his sentence violated due process and the

prohibition against double jeopardy; (4) that the trial court’s sentence was motivated by

vindictiveness because Williamson had exercised his right to go to trial and (5) that

Williamson’s “repetitive resentencings” violated due process and the prohibition against

cruel and unusual punishment. Williamson argued that these alleged denials of his

constitutional rights rendered his judgment of conviction and sentence “void or voidable

under the Ohio Constitution and/or the Constitution of the United States” and that if his

counsel had raised these issues at the resentencing hearing, the outcome of the hearing

would have been different.
       {¶13} With his remaining “claims,” Williamson asserted that, for these same

reasons, the trial court “lack[ed] * * * subject matter jurisdiction * * * to proceed at all”

at the resentencing hearing.    He also argued that the trial court lacked subject matter

jurisdiction to proceed with resentencing because: (1) Williamson was “mentally

deranged” and unable to allocute intelligibly or effectively assist his counsel at the

resentencing hearing after an alleged plea deal fell through and (2) he was denied a right

of allocution at the resentencing hearing.   The state opposed the petition, asserting that

all of the claims Williamson had raised in his petition had either been previously raised or

should have been previously raised and were barred by the doctrine of res judicata.

        {¶14} On March 2, 2016, the trial court summarily denied Williamson’s petition to
vacate or set aside his judgment of conviction or sentence. Williamson appealed the
trial court’s denial of his petition, raising the following four assignments of error for
review:

       ASSIGNMENT OF ERROR NO. I:
       The trial court failed to provide statutorily required findings of facts and
       conclusions of law and, accordingly, the appeal should be remanded to the
       trial court to so provide.

       ASSIGNMENT OF ERROR NO. II:
       The trial court deliberately refused to provide this defendant with findings
       of facts and conclusions of law, in line with its history of judicial
       vindictiveness against this defendant, justifying this court as an equitable
       matter, deciding this appeal de novo.

       ASSIGNMENT OF ERROR NO. III:
       The trial court’s previous history of judicial vindictiveness is [sic] against
       this defendant, coupled with failure to provide finding of fact and
       conclusions of law instantly, justifies dismissal of the underlying criminal
       conviction, and/or its sentence, with prejudice.

       ASSIGNMENT OF ERROR NO. IV:
       The trial court erred in denying petitioner’s PCRP motion for appointment
       of counsel.

       Law and Analysis

       Failure to Issue Findings of Fact and Conclusions of Law

       {¶15} In his first assignment of error, Williamson argues that the trial court erred

by failing to issue findings of fact and conclusions of law when denying his petition to

vacate or set aside his judgment of conviction or sentence.

       {¶16} “Where a criminal defendant, subsequent to his or her direct appeal, files a

motion seeking vacation or correction of his or her sentence on the basis that his or her

constitutional rights have been violated, such a motion is a petition for postconviction

relief as defined in R.C. 2953.21.” State v. Reynolds, 79 Ohio St.3d 158, 160, 679

N.E.2d 1131 (1997). A defendant’s petition for postconviction relief is a collateral civil

attack on his or her criminal conviction. See State v. Gondor, 112 Ohio St.3d 377,

2006-Ohio-6679, 860 N.E.2d 77, ¶ 48. A defendant does not have a constitutional right

to petition for postconviction relief; the only rights afforded to a defendant in a

postconviction proceeding are those specifically granted by the legislature. State v.

Rackley, 8th Dist. Cuyahoga No. 102962, 2015-Ohio-4504,¶ 10, citing State v. Calhoun,

86 Ohio St.3d 279, 281, 714 N.E.2d 905 (1999). R.C. 2953.21 and 2953.23 govern

petitions for postconviction relief.

       {¶17} Under R.C. 2953.21(A), a person convicted of a criminal offense who

claims that “there was such a denial or infringement of the person’s rights as to render the

judgment void or voidable under the Ohio Constitution or the Constitution of the United
States” may file a petition in the court that imposed the sentence for the offense, “stating

the grounds for relief relied upon, and asking the court to vacate or set aside the judgment

or sentence or to grant other appropriate relief.”

       {¶18} There are strict time limits for seeking postconviction relief under R.C.

2953.21.   Under the current version of R.C. 2953.21(A)(2), effective March 23, 2015, a

petition for postconviction relief must be filed no later than 365 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 or adjudication or, if no appeal is taken, no later than 365 days

after the expiration of time for filing the appeal.   Under the prior version of the statute,

the time period for filing the petition was 180 days after the trial transcript was filed in

the court of appeals or 180 days after the deadline for filing an appeal.         “This court

considers the date of the triggering event, i.e., the filing of the postconviction petition, to

determine which version of the statute governs.” State v. Thomas, 8th Dist. Cuyahoga

No. 103784, 2016-Ohio-3327, ¶ 8-11, citing State v. Worthington, 12th Dist. Brown No.

CA2014-12-022, 2015-Ohio-3173, ¶ 43, fn. 4 (appellant filed his motion for

postconviction relief before the new version of R.C. 2953.21 took effect so his motion

was governed by former version of statute.).

       {¶19} If a defendant’s petition is untimely or a defendant files a “second petition

or successive petitions for similar relief,” a court “may not entertain” the petition for

postconviction relief unless the petitioner satisfies the requirements of R.C. 2953.23(A).
As applicable to this case,1 under R.C. 2953.23(A)(1), the petitioner must demonstrate

either (1) that he or she was unavoidably prevented from discovering the facts upon

which he or she relies to present the claim for relief in the petition or (2) that after the

time period specified in R.C. 2953.21(A)(2) or the filing of an earlier petition, the United

States Supreme Court recognized a new federal or state right that applies retroactively to

the petitioner’s situation and the petition asserts a claim based on that right. R.C.

2953.23(A)(1)(a). If the petitioner is able to satisfy one of these requirements, then he or

she must then also establish by clear and convincing evidence that, “but for constitutional

error at trial,” no reasonable factfinder would have found the petitioner guilty of the

offense. R.C. 2953.23(A)(1)(b).

       {¶20}   R.C. 2953.21(C) and (G) provide that if the trial court dismisses a petition

for postconviction relief or “does not find grounds for granting relief,” “it shall make and

file findings of fact and conclusions of law” with respect to its dismissal or denial of

relief. However, the Ohio Supreme Court has held that a trial court “has no duty to issue

findings of fact and conclusions of law on successive or untimely petitions for

postconviction relief.”     State ex rel. George v. Burnside, 118 Ohio St.3d 406,

2008-Ohio-2702, 889 N.E.2d 533, ¶ 6; see also State ex rel. Reynolds v. Basinger, 99

Ohio St.3d 303, 2003-Ohio-3631, 791 N.E.2d 459, ¶ 6-7 (“R.C. 2953.21 governs initial

petitions for postconviction relief that are filed timely. * * * Unlike R.C. 2953.21, R.C.


       1
        Alternative requirements under R.C. 2953.23(A)(1)(b) relating to challenges to a death
sentence and R.C. 2953.23(A)(2), involving the results of DNA testing establishing “actual
innocence,” are not applicable here.
2953.23 does not require trial courts to issue findings of fact and conclusions of law. * *

* [W]e have consistently held that trial courts have no duty to issue findings of fact and

conclusions of law on second and successive petitions for postconviction relief filed

pursuant to R.C. 2953.23.”).

       {¶21}     Williamson claims that his petition was timely and not a successive

petition because it was filed within 365 days of the date the transcript was filed in his

direct appeal of the November 6, 2014 resentencing and was the first petition for

postconviction relief he filed after the resentencing. Williamson filed his petition on

November 16, 2015.      The transcript in Williamson’s appeal of the November 6, 2014

resentencing judgment entry was filed with this court on February 2, 2015.             The

transcript in Williamson’s direct appeal from his convictions was filed on April 17, 2002,

more than thirteen-and-a-half years earlier.

       {¶22} In an attempt to obtain review of alleged errors that he either previously

raised (and which were rejected) or that he could have previously raised, Williamson

couches his “claims” in his petition as arising out the “ineffective assistance of

resentencing counsel” or other alleged “resentencing” errors.     Such “bootstrapping” is

not permitted.     See, e.g., State v. Williamson, 8th Dist. Cuyahoga No. 102320,

2015-Ohio-5135, ¶ 9.

       {¶23} Williamson is not attacking the postrelease control notification, i.e., the

portion of his sentence as to which he was resentenced at the November 6, 2004

resentencing, or seeking relief from the resentencing. He seeks to have his convictions
and sentence vacated or set aside in total.   As this court has previously stated, a sentence

that is void because it does not properly include postrelease control “d[oes] not ‘restart

the clock’ to extend [the] time to file a post-conviction relief petition.”         State v.

Casalicchio, 8th Dist. Cuyahoga No. 89555, 2008-Ohio-2362, ¶ 22; see also State v.

Seals, 8th Dist. Cuyahoga No. 93198, 2010-Ohio-1980, ¶ 7 (“Ohio case law indicates that

the time limit for a postconviction relief petition runs from the original appeal of the

conviction, and that a resentencing hearing does not restart the clock for postconviction

relief purposes as to any claims attacking the underlying conviction.”).

       {¶24} Furthermore, because Williamson sought “similar relief” in prior filings for

postconviction relief, his petition is properly considered a “successive petition” for

purposes of R.C. 2953.21 and 2953.23. See, e.g., State v. Crockett, 8th Dist. Cuyahoga

No. 104120, 2016-Ohio-4966, ¶ 8. Williamson did not argue in his petition that he met

the requirements for filing an untimely or successive petition under R.C. 2953.23(A)(1).

Accordingly, the trial court was not required to issue findings of fact or conclusions of

law in denying Williamson’s petition to vacate or set aside his judgment of conviction or

sentence. Williamson’s first assignment of error lacks merit and is overruled.

       Alleged “History of Vindictiveness” by the Trial Judge

       {¶25}   In his second and third assignments of error, Williamson argues that the

trial court’s failure to issue findings of fact and conclusions of law combined with a

“history of judicial vindictiveness” by the trial court warrants a de novo review by this

court of his petition for postconviction relief or the “dismissal” of his convictions and
sentence pursuant to the court’s “equitable powers.”      Williamson contends that the trial

court’s failure to issue findings of fact and conclusions of law was “deliberate” and was

“aimed” at prejudicing Williamson to deny him “any meaningful judicial review” by this

court. Williamson claims that the “history” of the trial court’s “judicial vindictiveness”

against him is evidenced by the trial court’s handling of a proposed defense witness, the

trial court’s imposition of consecutive life sentences and various statements the trial judge

made during the original sentencing hearing. He asserts that each resentencing “add[ed]

an opportunity [for] the trial court to become more vindictive.”

       {¶26} As stated above, the trial court was not required to issue findings of fact and

conclusions of law in denying Williamson’s petition for postconviction relief.

Accordingly, the trial court’s failure to issue findings of fact and conclusions of law does

not demonstrate “vindictiveness” calculated to prejudice Williamson on appeal.

       {¶27} Although there is nothing in the record to suggest that the trial court was

“vindictive” in denying Williamson’s petition for postconviction relief without issuing

findings of fact or conclusions of law, any claim of alleged bias or prejudice by the trial

judge is not properly brought before this court.     We have no authority to determine a

claim that a trial judge is biased or prejudiced against a defendant and no authority to void

a trial court’s judgment based on a claim that the trial judge is biased or prejudiced.   As

the Seventh District explained in State v. Clark, 7th Dist. Mahoning No. 07-MA-87,

2008-Ohio-1179:

       “The Chief Justice of the Supreme Court of Ohio, or his designee, has
       exclusive jurisdiction to determine a claim that a common pleas judge is
       biased or prejudiced.” Jones v. Billingham, 105 Ohio App.3d 8, 11, 663
       N.E.2d 657 (2d Dist.1995), citing Section 5(C), Article IV, Ohio
       Constitution; Adkins v. Adkins, 43 Ohio App.3d 95, 539 N.E.2d 686 (4th
       Dist.1988). R.C. 2701.03 provides the exclusive means by which a litigant
       can assert that a common pleas judge is biased or prejudiced. Id. * * *

       An appellate court lacks the authority to pass upon the disqualification of a
       common pleas court judge or to void the judgment of a trial court on that
       basis. State v. Ramos, 88 Ohio App.3d 394, 398, 623 N.E.2d 1336 (1993).

Id. at ¶ 73-75; see also Fisher v. Fisher, 8th Dist. Cuyahoga No. 95821, 2011-Ohio-5251,

¶ 43 (“[C]hallenges of judicial prejudice and bias are not properly brought before an

appellate court. * * * Courts of appeals lack authority to void the judgment of a trial court

on such basis.”); State v. Bacon, 8th Dist. Cuyahoga No. 85475, 2005-Ohio-6238, ¶ 66

(“Appellant’s exclusive remedy if he believed that the trial judge was biased or prejudiced

against him at any stage of his case was to file an affidavit of disqualification pursuant to

R.C. 2701.03. * * * [T]his court lacks jurisdiction to void the judgment of the trial court

because of a judge’s bias or prejudice.”).    Accordingly, Williamson’s second and third

assignments of error are overruled.

       Failure to Appoint Counsel for Postconviction Petition

       {¶28}   In his fourth and final assignment of error, Williamson argues that the trial

court erred in denying his motion for appointment of counsel to represent him on his

petition for postconviction relief. This argument is meritless as well. An indigent

petitioner has neither a state nor a federal constitutional right to be represented by

appointed counsel in a postconviction proceeding.     State v. Crowder, 60 Ohio St.3d 151,

152, 573 N.E.2d 652 (1991), citing Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990,
95 L.Ed.2d 539         (1987); State v. Taylor, 8th Dist. Cuyahoga No. 102020,

2015-Ohio-1314, ¶ 9; see also State v. Mapson, 41 Ohio App.3d 390, 391, 535 N.E.2d

729 (8th Dist.1987) (right to appointed counsel does not apply to postconviction relief

proceedings because such proceedings are civil in nature).      Accordingly, Williamson’s

fourth assignment of error is overruled.

       {¶29} Judgment affirmed.

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

       It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas 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

LARRY A. JONES, SR., A.J., and
MELODY J. STEWART, J., CONCUR
