[Cite as State v. Tate, 2015-Ohio-3859.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. William B. Hoffman, J.
                          Plaintiff-Appellee   :       Hon. John W. Wise, J.
                                               :
-vs-                                           :
                                               :       Case No. 15-CA-40
LLOYD TATE                                     :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Richland County
                                                   Court of Common Pleas, Case No. 2012-
                                                   CR-0666D


JUDGMENT:                                          Affirmed


DATE OF JUDGMENT ENTRY:                            September 21, 2015



APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

DANIEL M. ROGERS                                   LLOYD TATE #A634-143
Assistant Prosecuting Attorney                     Marion Correctional Institution
38 S. Park Street                                  Box 57
Mansfield, OH 44902                                Marion, OH 43301-0057
[Cite as State v. Tate, 2015-Ohio-3859.]


Gwin, P.J.

        {¶1}     Appellant Lloyd Tate appeals the April 9, 2015 judgment entry of the

Richland County Court of Common Pleas denying his motion for post-conviction relief.

Appellee is the State of Ohio.

                                           Procedural History

        {¶2}     A statement of facts underlying appellant’s original convictions is

unnecessary to our disposition of this appeal.

        {¶3}     On October 9, 2012, appellant was indicted on one account of attempted

murder, a felony of the first degree, and two counts of felonious assault, one for causing

serious physical harm and one for use of a deadly weapon, both felonies of the second

degree. A repeat violent offender specification and a vehicle forfeiture specification was

attached to each count of the indictment.

        {¶4}     After trial, a jury found appellant guilty of all three counts in the indictment.

The trial court then heard arguments regarding the repeat violent offender specification.

The State of Ohio offered appellant’s conviction for robbery from 1989. The trial court

found appellant guilty of the repeat violent offender specifications. The trial court also

granted the forfeiture of appellant’s truck.

        {¶5}     The trial court sentenced appellant to eleven (11) years on the charge of

attempted murder and two (2) years on the repeat violent offender specification. The

felonious assault charges were found to be allied offenses to the attempted murder

charge.

        {¶6}     On January 25, 2013, appellant filed a notice of appeal to this Court of his

conviction and sentence. The transcript was filed on April 9, 2013. Appellant filed his
Richland County, Case No. 15-CA-40                                                           3


brief with this Court on June 10, 2013, arguing, in part, that the trial court erred in finding

him to be a repeat violent offender and sentencing him to two years consecutive to the

maximum sentence on the attempted murder charge.

        {¶7}   On November 21, 2013, in State v. Tate, 5th Dist. Richland No. 13 CA 5,

2013-Ohio-5150, this Court affirmed appellant’s conviction, sentence, and repeat violent

offender finding and sentence. On August 29, 2014, appellant filed a motion for delayed

appeal with the Ohio Supreme Court. The motion was denied on October 22, 2014 in

State v. Tate, 140 Ohio St.3d 1465, 2014-Ohio-4629, 18 N.E.2d 445. On March 23,

2015, appellant filed with this Court a motion to reopen his appeal, which was denied on

May 19, 2015. Appellant appealed the denial to the Ohio Supreme Court. The Ohio

Supreme Court declined to accept jurisdiction of appellant’s appeal on August 26, 2015.

        {¶8}   Appellant filed a motion to correct sentence on September 18, 2014 with

the trial court. The State of Ohio filed a response. The trial court issued a judgment

entry denying appellant’s motion on April 9, 2015. The trial court found the motion to

correct sentence to be a petition for post-conviction relief pursuant to R.C. 2953.21.

The trial court first found the motion to be untimely, as the petition was not filed until

September 18, 2014 and a timely post-conviction relief petition had to be filed by April 9,

2014.    Additionally, the trial court found res judicata applies because this Court

previously addressed and overruled appellant’s argument.

        {¶9}   Appellant appeals the April 9, 2015 judgment entry of the Richland County

Court of Common Pleas and assigns the following as error:

        {¶10} “I. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED

PLAIN ERROR WHEN IT IMPOSED A SENTENCE FOR THE REPEAT VIOLENT
Richland County, Case No. 15-CA-40                                                         4


OFFENDER SPECIFICATIONS THAT WERE CONTRARY TO LAW.                                    O.R.C.

2929.14(B)(2)(b)/(D) and 2929.01(CC)(1)-(2); OHIO CONST., ARTICLE I, SECTION 10

AND     16   AND     FOURTEENTH            AMENDMENT      TO    THE    UNITED       STATES

CONSTITUTION.”

                                                 I.

       {¶11} The trial court considered appellant’s “motion to correct sentence” as a

petition for post-conviction relief. Appellant does not assign as error the trial court’s

decision to consider his motion as a petition for post-conviction relief. In denying the

motion, the trial court stated that it considered the motion to be untimely.

       {¶12} R.C. 2953.21(A)(2) governs the time within a petition for post-conviction

relief must be filed and provides as follows:

       Except as otherwise provided in section 2953.23 of the Revised Code, a

       petition under division (A)(1) of this section 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 or adjudication * * *.

       {¶13} In this case, the trial transcript in appellant’s direct appeal was filed on

April 9, 2013.    Appellant filed his petition on September 18, 2014.          Therefore, his

petition is not within the three hundred sixty five days after the date on which the trial

transcript was filed with this Court in his direct appeal and thus not in compliance with

the time frame as specified in R.C. 2953.21(A)(2).

       {¶14} However, pursuant to R.C. 2953.23(A), the court may consider an

untimely petition for post-conviction relief:
Richland County, Case No. 15-CA-40                                                    5


      (A) Whether a hearing is or is not held on a petition filed pursuant to

      section 2953.21 of the Revised Code, a court may not entertain a petition

      filed after the expiration of the period prescribed in division (A) of that

      section * * * unless division (A)(1) or (2) of this section applies:

             (1) Both of the following apply:

                    (a) Either the petitioner shows that the petitioner was

                    unavoidably prevented from the discovery of the facts upon

                    which the petitioner must rely to present the claim for relief,

                    or, subsequent to the period prescribed in division (A)(2) of

                    section 2953.21 of the Revised Code or to 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.

                    (b)The petitioner shows by clear and convincing evidence

                    that, but for constitutional error at trial, no reasonable

                    factfinder would have found that petitioner was guilty of the

                    offense of which the petitioner was convicted of * * *.

             (2) The petitioner was convicted of a felony, the petitioner is an

             offender for whom DNA testing was performed * * * and analyzed in

             the context of and upon consideration upon all available admissible

             evidence related of the inmate’s case * * * and the results of the

             DNA testing establish, by clear and convincing evidence, actual
Richland County, Case No. 15-CA-40                                                        6


                innocence of that felony offense * * *.

          {¶15} In this case, appellant makes no allegation in his motion that results of

DNA testing establish, by clear and convincing evidence, actual innocence. Appellant

argues that he could not be sentenced to a repeat violent offender specification under

R.C. 2929.14(B)(2)(b) because his prior conviction was not within the last twenty years.

Further, that the prior offense of robbery was not proven to be a prior offense of

violence. These matters were all contained in the trial record and thus appellant cannot

show that he was unavoidably prevented from the discovery of the facts upon which he

relies on for relief or that this is newly-discovered evidence. Appellant does not set forth

any argument in his brief as to the delay in filing, why he meets the exception

requirements contained in R.C. 2953.23(A)(1) or (A)(2), or how the petition otherwise

complies with R.C. 2953.23(A)(1) or (A)(2). As such, appellant has failed to meet his

burden under R.C. 2953.23(A)(1) or (A)(2) to file an untimely petition for post-conviction

relief.

          {¶16} In addition, any errors as to these issues either were or could have been

raised on direct appeal and are therefore barred under the doctrine of res judicata.

“Under the doctrine of res judicata, a final judgment of conviction bars the defendant

from raising and litigating in any proceeding, except an appeal from that judgment, any

defense or any claimed lack of due process that the defendant raised or could have

raised at the trial which resulted in that judgment of conviction or on appeal from that

judgment.” State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967). Conversely,

issues properly raised in a post-conviction petition are those that could not have been

raised on direct appeal because the evidence supporting the issues is outside the
Richland County, Case No. 15-CA-40                                                        7

record. State v. Millanovich, 42 Ohio St.2d 46, 325 N.E.2d 540 (1975). Appellant’s

arguments do not raise any issues that are dependent upon evidence outside the

record. Further, in appellant’s direct appeal, this Court found that the trial court did not

err in finding him to be a repeat violent offender and sentencing him to two years

consecutive to the maximum sentence on the attempted murder charge. Accordingly,

the arguments appellant makes either were or could have been raised and argued on

direct appeal.

       {¶17} Upon review, we find that appellant has not satisfied the R.C.

2953.23(A)(1)(a) requirement that he was unavoidably prevented from discovery of the

facts upon which he relies to present his claims for post-conviction relief. Appellant

does not offer any evidence which was not already in the record before the trial court.

Further, the issues raised by appellant either were or could have been raised in his

direct appeal and are therefore res judicata. Thus, the trial court did not err in denying

appellant’s petition to correct sentence.
Richland County, Case No. 15-CA-40                                          8


      {¶18} Appellant’s assignment of error is overruled and the April 9, 2015

judgment entry of the Richland County Court of Common Pleas is affirmed.



By: Gwin, P.J.,

Hoffman, J., and

Wise, J., concur
