[Cite as State v. Roberts, 2011-Ohio-2534.]




               Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                         No. 95533



                                         STATE OF OHIO

                                                            PLAINTIFF-APPELLEE

                                                      vs.

                                    DAVID W. ROBERTS

                                                            DEFENDANT-APPELLANT




                                               JUDGMENT:
                                                AFFIRMED


                                              Civil Appeal from the
                          Cuyahoga County Court of Common Pleas
                           Case Nos. CR-480193 and CR-483914

       BEFORE: Stewart, P.J., Sweeney, J., and Jones, J.

     RELEASED AND JOURNALIZED: May 26, 2011
FOR APPELLANT

David W. Roberts, Pro Se
Inmate No. A-511-605
Mansfield Correctional Institution
P.O. Box 788
Mansfield, OH 44901


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Matthew E. Meyer
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113




MELODY J. STEWART, P.J.:
      {¶ 1} Defendant-appellant, David W. Roberts, appeals the order of the

Cuyahoga County Common Pleas Court denying his second petition for

postconviction relief.    Following review of the record, and for the reasons

stated below, we affirm.

      {¶ 2} In 2006, Roberts was indicted by the Cuyahoga County Grand

Jury in Case No. CR-480193 on four counts of drug possession, four counts of

drug trafficking, and one count of possession of criminal tools. He was also

indicted in Case No. CR-483914 on two counts of drug trafficking with a

schoolyard specification, two counts of drug possession, and one count of

possessing criminal tools. The two cases were consolidated and, on July 31,

2006, Roberts pleaded guilty to two counts of drug trafficking, two counts of

drug possession, and two counts of possessing criminal tools.         The other

counts were dismissed as nolle prosequi.          Roberts received an agreed

sentence of six years on all counts.      Roberts did not timely appeal his

conviction or sentence.

      {¶ 3} On November 7, 2006, Roberts moved to withdraw his guilty plea.

 Roberts alleged that trial counsel had been ineffective for failing to conduct a

pretrial investigation of all charges in CR-480193 and that the court had

failed to obtain and file a signed waiver of a jury trial. The trial court denied

Roberts’s motion on November 21, 2006 without opinion.
      {¶ 4} On February 21, 2007, Roberts filed a petition for postconviction

relief on the grounds that he had received ineffective assistance of trial

counsel when counsel failed to conduct pretrial discovery, failed properly to

assert Roberts’s Fourth Amendment claims, failed to move for a bill of

particulars, failed to move to suppress certain evidence, and waived a

suppression hearing.      The trial court denied the petition.         This court

affirmed the decision finding that because Roberts’s ineffective assistance of

counsel claim was not raised on a direct appeal, it was barred by res judicata.

State v. Roberts, 8th Dist. No. 90020, 2008-Ohio-2347 (“Roberts I”).

      {¶ 5} Roberts twice moved to file a delayed appeal with this court.

Both requests were denied.      The Federal District Court for the Northern

District of Ohio later granted defendant habeas relief providing that “the

State must grant him leave to file a delayed appeal” or release him from

custody.    See Roberts v. Gansheimer (June 3, 2009), N.D. Ohio No.

08-CV-1473, unreported.      Accordingly, we granted Roberts leave to file a

delayed direct appeal.

      {¶ 6} On direct appeal of his conviction, Roberts alleged that his

constitutional rights were violated by alleged illegal searches and seizures,

ineffective assistance of counsel relating to lack of investigation and failure to

raise Fourth Amendment claims, prosecutorial misconduct and failure to

disclose exculpatory evidence. As a result, he claimed that his pleas were
not knowingly, intelligently, and voluntarily entered. Upon review, we found

that by pleading guilty, Roberts waived any constitutional errors that

occurred prior to the entry of his plea. We also found that his guilty pleas

were knowingly, intelligently, and voluntarily entered. As a result, Roberts’s

convictions were affirmed.       State v. Roberts, 8th Dist. No. 89453,

2010-Ohio-3302 (“Roberts II”).

      {¶ 7} While that appeal was pending, Roberts filed a second petition for

postconviction relief raising essentially the same claims he had raised in his

first petition and in his direct appeal:     1) ineffective assistance of trial

counsel in CR-483914 for lack of pretrial investigation and failure to file a

motion to suppress; 2) unlawful searches and seizures resulting in evidence

that should have been suppressed; and, 3) prosecutorial misconduct for failing

to disclose exculpatory evidence and failing to provide sufficient evidence to

support the drug trafficking and possession charges. The trial court denied

Roberts’s petition as untimely filed and barred by res judicata.

      {¶ 8} In this appeal, Roberts challenges the denial of his second

petition and   raises three errors for our review.    Roberts claims that the

trial court abused its discretion by: 1) finding that his claims were barred by

res judicata; 2) determining that his petition was untimely filed; and, 3)

failing to conduct an evidentiary hearing on his claims. The assigned errors

have a common basis in fact and law and shall be considered together.
                                  Res Judicata

      {¶ 9} Roberts asserts that the trial court violated his due process rights

and abused its discretion by denying his claims on the basis of res judicata.

He points to the denial of his two requests for delayed appeal and argues that

he was unable to obtain fair and meaningful appellate review of his

ineffective assistance of counsel claim. Roberts argues that absent such a

review, the principles of res judicata do not apply.

      {¶ 10} “Under the doctrine of res judicata, a final judgment of conviction

bars a convicted defendant who was represented by counsel 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 (1967), 10

Ohio St.2d 175, 226 N.E.2d 104, at paragraph nine of the syllabus. In other

words, a petition for postconviction relief is not the proper vehicle to raise

issues that were or could have been determined on direct appeal. State v.

Kent, 8th Dist. No. 94562, 2010-Ohio-6368.

      {¶ 11} Notwithstanding his two unsuccessful efforts to obtain a delayed

appeal, Roberts was ultimately granted a direct appeal of his judgment of

conviction and given full appellate review of his claims. As a result of that

review, Roberts’s convictions and the agreed six-year prison sentence were
affirmed. Roberts II. In that case, we found that Roberts’s guilty pleas to

two counts of drug trafficking, two counts of drug possession, and two counts

of possession of criminal tools “were offered knowingly, intelligently, and

voluntarily and that the trial judge substantially complied with the statutory

guidelines for accepting a guilty plea.”      Id. at ¶27.   We also found that

Roberts’s claims of Fourth Amendment violations by the Cleveland and

Bedford Heights police departments, ineffective assistance of trial counsel,

and prosecutorial misconduct for failing to disclose exculpatory evidence

lacked merit and were therefore, overruled.

      {¶ 12} In the instant case, Roberts again claims that the Bedford

Heights police violated his Fourth Amendment rights and that these

violations would have become apparent had trial counsel properly conducted

pretrial discovery in CR-483914.       However, we specifically rejected this

argument in Roberts’s direct appeal. We found that “[a]ny lack of pre-trial

discovery in CR-483914 is not fairly attributed to defendant’s attorney but

rather to defendant’s deliberate decision to enter a guilty plea only days after

return of that indictment.” Roberts II at ¶26. Accordingly, we find no error

in the trial court’s determination that the claims in Roberts’s petition for

postconviction relief are barred by res judicata.

                             Timeliness of Petition
      {¶ 13} We also find no error in the trial court’s determination that

Roberts’s petition was untimely filed. A defendant may not file a second or

successive petitions for postconviction relief unless he meets certain criteria

set forth in the statute. R.C. 2953.23(A) states in pertinent part:

      {¶ 14} “(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 or a second petition or successive petitions for similar relief on

behalf of a petitioner unless division (A)(1) or (2) of this section applies:

      {¶ 15} “(1) Both of the following apply:

      {¶ 16} “(a) Either the petitioner shows that the petitioner was

unavoidably prevented from 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 persons in the

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

      {¶ 17} “(b) The petitioner shows by clear and convincing evidence that,

but for constitutional error at trial, no reasonable factfinder would have found

the petitioner guilty of the offense of which the petitioner was convicted ***.”
      {¶ 18} Unless the exceptions in R.C. 2953.23 apply, a judge lacks

jurisdiction to consider an untimely petition for postconviction relief. State v.

Short, 8th Dist. No. 83492, 2004-Ohio-2695, ¶4.        In his brief to the trial

court, Roberts argued that the grant of a delayed appeal acted to reset the

jurisdictional clock in R.C. 2953.21 and gave him additional time to file his

petition.   However, on appeal, Roberts asserts only that his petition was

timely filed under R.C. 2953.23(A) because he was unavoidably prevented

from discovering the material evidence supporting his petition.

      {¶ 19} We find no merit to Roberts’s argument that, due to his trial

counsel’s failure to conduct pretrial discovery, he was unavoidably prevented

from discovery of the facts necessary to present his claim for postconviction

relief. As noted above, the lack of pretrial discovery was a result of Roberts’s

own decision to accept the state’s “package deal” plea offer days after he was

indicted in the second drug case, not due to any failure on the part of his trial

counsel to properly prepare a defense in that case. Additionally, the police

reports and court documents attached to Roberts’s petition have been a

matter of public record since 2006. Thus, Roberts has not demonstrated that

he was unavoidably prevented from discovering the facts upon which he bases

his petition.

                                    Hearing
      {¶ 20} Where a defendant has failed to meet the first prong of the test

contained in R.C. 2953.23(A), the petition is untimely and the trial court may

properly dismiss the petition without hearing.                   State v. Smith (Feb. 17,

2000), 8th Dist. No. 75793.

      {¶ 21} Accordingly, we overrule Roberts’s three assignments of error.

      Judgment affirmed.

      It is ordered that appellee recover of appellant its costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      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.




MELODY J. STEWART, PRESIDING JUDGE

JAMES J. SWEENEY, J., and
LARRY A. JONES, J., CONCUR
