[Cite as State v. Dixon, 2020-Ohio-2741.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

 STATE OF OHIO                                   :
                                                 :
         Plaintiff-Appellee                      :   Appellate Case No. 28507
                                                 :
 v.                                              :   Trial Court Case No. 2005-CR-4213/4
                                                 :
 WILLIAM DIXON                                   :   (Criminal Appeal from
                                                 :   Common Pleas Court)
         Defendant-Appellant                     :
                                                 :

                                            ...........

                                            OPINION

                               Rendered on the 1st day of May, 2020.

                                            ...........

MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

WILLIAM DIXON, Inmate No. 529-169, Toledo Correctional Institution, P.O. Box 80033,
Toledo, Ohio 43608
      Defendant-Appellant, Pro Se

                                            .............




TUCKER, P.J.
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       {¶ 1} Defendant-appellant, William Dixon, filed a petition for postconviction relief

on July 29, 2019, which the trial court denied in an order entered on August 14, 2019. In

this appeal, Dixon argues that the trial court misconstrued his petition and erred by

denying it pursuant to the doctrine of res judicata. Although the trial court arguably did

misconstrue the basis of the petition, we hold nevertheless that the court did not err by

denying it. The court’s order of August 14, 2019, is therefore affirmed.

                               I. Facts and Procedural History

       {¶ 2} In June 2005, Shoshana Harbor resided on Lynnaway Drive in Dayton with

her husband and one of her three sons. On the afternoon of June 24, 2005, Harbor

heard her doorbell ring, and upon opening the door, she encountered a woman later

identified as Devon Schultz. Schultz asked to use a telephone, claiming that her car had

run out of fuel. Harbor assented to Schultz’s request, and after closing the door, she

walked into her kitchen to retrieve her telephone. When Harbor returned, she found

Schultz inside the house.

       {¶ 3} Despite her surprise, Harbor handed the telephone to Schultz, who then drew

a gun and pointed it at Harbor’s head. Harbor unsuccessfully attempted to take the gun

from Schultz, and Schultz shot Harbor in her left leg and chest. Even though she had

been wounded, Harbor was able to push Schultz out of the house through the front door,

at which point Schultz fled.

       {¶ 4} Harbor followed Schultz outside, shouting for help, and encountered two men

there, who were later identified as Dixon and Peter Roach. She asked Dixon and Roach

to pursue Schultz, and seemingly in response to her request, the two men ran off in the
                                                                                       -3-


direction that Schultz had taken. Dixon, Roach and Schultz, however, had planned to

rob Harbor with the assistance of a fourth person, Angela Walton; using her own vehicle,

Walton served as the group’s getaway driver.

       {¶ 5} Harbor’s son and several of her neighbors witnessed various parts of the

incident, and the first police officers to respond to the scene captured video of Walton’s

vehicle with their cruiser’s camera system. Dixon, Schultz and Walton fled to Arkansas,

though Schultz and Walton later travelled to Maryland, where they were arrested in

October 2005. Shortly afterward, Roach was arrested in Springfield, Ohio, and Dixon

was subsequently arrested in Arkansas in March 2006.

       {¶ 6} Dixon, Roach, Schultz and Walton were charged with complicity in the

commission of aggravated robbery, complicity in the commission of aggravated burglary,

and complicity in the commission of felonious assault.      A firearm specification was

attached to each of the charges.       Roach, Schultz and Walton pleaded guilty to the

charges against them, but Dixon chose to take his case to trial.

       {¶ 7} Beginning on August 8, 2006, the case was tried to a jury. Among other

things, the evidence presented at trial indicated that Dixon had planned the robbery;

purchased the clothing worn by Schultz; provided Schultz with the gun she used;

purchased ammunition for the gun; and prepared a map of the area surrounding Harbor’s

residence. The trial concluded on August 9, 2006, and on August 11, 2006, the jury

returned verdicts of guilty on all charges.

       {¶ 8} At sentencing on September 1, 2006, the trial court sentenced Dixon to serve

terms in prison of 10 years on the charge of complicity to commit aggravated robbery, 10

years on the charge of complicity to commit aggravated burglary, eight years on the
                                                                                           -4-


charge of complicity to commit felonious assault, and three years for each of the firearm

specifications. The court ordered that the terms of 10 years be served concurrently;

merged the firearm specifications into a single, three-year specification; and ordered that

the eight-year term for complicity to commit felonious assault and the three-year term for

the merged firearm specifications be served consecutively.            Thus, the aggregate

sentence was 21 years.

       {¶ 9} Dixon brought a direct appeal from his convictions, which we affirmed in our

opinion of February 22, 2008. State v. Dixon, 2d Dist. Montgomery No. 21823, 2008-

Ohio-755, ¶ 1-5 and 53. During the pendency of that appeal, Dixon petitioned the trial

court for postconviction relief, and the trial court denied the petition in a decision entered

on July 27, 2009. Dixon appealed the decision, which we affirmed in our opinion of June

11, 2010. State v. Dixon, 2d Dist. Montgomery No. 23592, 2010-Ohio-2635, ¶ 7 and 28.

Between June 2010 and May 2018, four more appeals followed, as well as several more

petitions for postconviction relief.1 See State v. Dixon, 2d Dist. Montgomery No. 27991,

2019-Ohio-230, ¶ 5-12.

       {¶ 10} On July 29, 2019, Dixon filed another petition for postconviction relief, and

the trial court denied the petition in its order of August 14, 2019. Representing himself,

Dixon timely filed a notice of appeal to this court on August 27, 2019, after which he and

the State were granted several extensions of time to submit their respective briefs. With

briefing now complete, we may consider Dixon’s arguments.

                                        II. Analysis


1Dixon filed more than four notices of appeal between June 2010 and May 2018, but
many of these were dismissed.
                                                                                           -5-


       {¶ 11} Dixon has not complied with App.R. 16(A). He filed a document entitled

“Motion to File Brief” on September 13, 2019, and he thereafter filed a document entitled

“Motion for Leave: [sic] to Amend Brief” on October 25, 2019. By order of November 26,

2019, we accepted these documents together as Dixon’s brief. 2            Neither document

presents any assignments of error, but Dixon’s arguments converge on a single

contention, which is that the trial court erred by denying his petition for postconviction

relief. We take that contention, then, to be Dixon’s assignment of error.

       {¶ 12} In his petition, according to the trial court, “Dixon argue[d] that his sentence

was void” as the result of the court’s “fail[ure] to merge allied offenses” and the court’s

improper “impos[ition] [of] consecutive [prison] [term]s.”      Order Denying Petition for

Postconviction Relief 1, Aug. 14, 2019. Because the court had previously considered

and rejected the same arguments, it held that the petition was “barred by [the doctrine of]

res judicata.” Id.

       {¶ 13} In the conclusion to the petition, Dixon maintained that “[i]t’s clear that the

court must [void] [brackets sic] the sentence, correct it, [punctuation sic] to less[e]r

offense, [and] re-sentence him under proper [statute]s—which should then invoke [a]llied

offense [sic].” Defendant’s Petition for Postconviction Relief 2, July 29, 2019. The trial

court, understandably, seems to have interpreted the petition in light of Dixon’s reference

to the merger of allied offenses, but Dixon also emphasized his belief in his “actual

innocence.”   Id. at 1-2.   On that point, Dixon argued he was improperly convicted

because the robbery did not succeed, meaning in his view that he should have been


2The State filed its brief on February 12, 2020, and Dixon filed a brief in reply on February
26, 2020.
                                                                                           -6-


convicted of complicity in the commission of attempted aggravated robbery, rather than

complicity in the commission of aggravated robbery; he argued that he was improperly

convicted on the merged firearm specifications because he personally did not threaten

Harbor with a firearm. See id. at 1-2. He did not address his convictions for complicity

in the commission of aggravated burglary and complicity in the commission of felonious

assault.

       {¶ 14} Here, in the first of the two documents we accepted as Dixon’s brief, and in

his reply to the State’s response, Dixon argues that his petition “ha[d] nothing to do with

[a failure to merge] allied offense[s],” but was instead predicated on a claim of actual

innocence, which he insists is “exempt from [application of the doctrine of] (res judicata).”

(Emphasis and parentheses sic.) See Appellant’s Brief, Part One 1, Sept. 13, 2019; see

also Appellant’s Reply Brief 1, Feb. 26, 2020. In the second of the two documents we

accepted as his brief, Dixon argues that because “the trial court sentenced [him] to crimes

that never happen[ed] and failed to follow directives of crimes that did [happen],” the court

lost its “subject matter jurisdiction” over his case. See Appellant’s Brief, Part Two 1, Oct.

25, 2019. He offers no discussion of his convictions for complicity in the commission of

aggravated burglary and complicity in the commission of felonious assault.

       {¶ 15} Essentially, Dixon argues that he has been improperly convicted, and

wrongfully imprisoned, because the incident at Shoshana Harbor’s house in June 2005

“was a failed robbery” during which he himself did not brandish or use a firearm. See

Appellant’s Brief, Part Two 2. That is, Dixon claims he is actually innocent because “the

[e]lements of [a]ggravated [r]obbery never took place, [a]nd the (3yr) [sic] [g]un spec. [sic]
                                                                                         -7-


never took place.” 3   Appellant’s Brief, Part One 4; Appellant’s Brief, Part Two 3-5;

Appellant’s Reply 3-5 and 7-8.

       {¶ 16} Dixon fundamentally misapprehends the provisions of R.C. 2923.03(F) and

2911.01(A)(1). Under the former statute, a person who “is guilty of complicity” in the

commission of an offense “shall be prosecuted and punished as if he were a principal

offender.” (Emphasis added.) Consequently, regardless of the fact that “Dixon never

personally [b]randished a [g]un” in Harbor’s presence, given that “Schultz alone [entered

Harbor’s] house,” Dixon was properly convicted of a three-year firearm specification under

R.C. 2941.145. Appellant’s Brief, Part One 3. Similarly, regardless of the fact that

Dixon and his associates did not actually succeed in their attempt to commit a theft

offense, he was properly convicted of complicity in the commission of aggravated robbery.

Pursuant to R.C. 2911.01(A)(1), a person is guilty of aggravated robbery if he has “a

deadly weapon on or about [his] person or under [his] control” and either “display[s] the

weapon, brandish[es] it, indicate[s] that [he] possesses it, or use[s] it” while “attempting

or committing a theft offense,” or while “fleeing immediately after the attempt or offense.”

(Emphasis added.)

       {¶ 17} Concomitantly, Dixon’s argument regarding res judicata lacks merit.

According to “the doctrine of res judicata, a valid final judgment on the merits bars all



3 Although Dixon offers no analysis specifically directed to his convictions for complicity
in the commission of aggravated burglary and complicity in the commission of felonious
assault, he would presumably argue that he should not have been convicted of complicity
in the commission of aggravated burglary because he personally did not enter Harbor’s
house, and that he should not have been convicted of complicity in the commission of
felonious assault because he personally did not cause or attempt to cause physical harm
to Harbor. See R.C. 2911.11(A) and 2903.11(A).
                                                                                           -8-


subsequent actions based on any claim arising out of the transaction or occurrence that

was the subject matter of the previous action.” State v. Collins, 2d Dist. Montgomery No.

25612, 2013-Ohio-3645, ¶ 9, citing Grava v. Parkman Twp., 73 Ohio St.3d 379, 653

N.E.2d 226 (1995). The doctrine “applies to any issue that was raised or could have

been raised in a criminal defendant’s [direct] appeal from his conviction or any other final

appealable order,” including claims that were raised or could have been raised in a

defendant’s first petition for postconviction relief. Id. at ¶ 14, citing State v. Perry, 10

Ohio St.2d 175, 226 N.E.2d 104 (1967); State v. McCain, 2d Dist. Montgomery No. 27195,

2017-Ohio-7518, ¶ 35.

       {¶ 18} Dixon contends that his petition of July 29, 2019, was exempt from

application of the doctrine because the trial court “illegally sentence[d] [him] [for] a crime

[sic] that never took place,” making “the entire indictment” and his corresponding

sentences “void.” See Appellant’s Brief, Part Two 4. As we have indicated, however,

Dixon’s convictions were not improper, meaning that his sentences are not void, and

“[a]lthough the doctrine of res judicata does not preclude review of a void sentence, [the

doctrine] still applies to other aspects of the merits of a conviction, including the

determination of guilt and the lawful elements of the ensuing sentence[s].” State v.

Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 1.              Regardless of

whether the trial court accurately characterized the basis of Dixon’s petition, the issues

he raised were subject to the doctrine of res judicata because he had already raised them,

or could have raised them, in his six previous appeals or in his several previous petitions

for postconviction relief, and no exception to the doctrine applies in this instance. Dixon’s

assignment of error is overruled.
                                                                                         -9-


                                      III. Conclusion

       {¶ 19} The trial court arguably misconstrued the arguments offered by Dixon in the

petition for postconviction relief he filed on July 29, 2019, but the court nevertheless did

not err by dismissing the petition pursuant to the doctrine of res judicata. Therefore, the

trial court’s order of August 14, 2019, is affirmed.



                                      .............



DONOVAN, J. and WELBAUM, J., concur.



Copies sent to:

Mathias H. Heck, Jr.
Sarah E. Hutnik
William Dixon
Hon. Steven K. Dankof
