[Cite as State v. Sybert, 2019-Ohio-5280.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                    Court of Appeals Nos. L-18-1259
                                                                       L-18-1260
        Appellee
                                                 Trial Court Nos. CR0199605822
v.                                                                CR0199605862

Robert Richard Sybert                            DECISION AND JUDGMENT

        Appellant                                Decided: December 20, 2019

                                             *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

        Patricia Horner, for appellant.

                                             *****

        SINGER, J.

        {¶ 1} Appellant, Robert Sybert, appeals the November 5, 2018 judgments of the

Lucas County Court of Common Pleas denying his petition for postconviction relief. For

the reasons that follow, we affirm the trial court’s judgments.
         {¶ 2} Appellant sets forth one assignment of error:

                The trial court committed an abuse of Discretion in denying

         appellant’s petition To set aside judgments in case numbers CR 1996-5822

         and CR 1996-5862[.]

                                        Background

         {¶ 3} On May 3, 1996, appellant was indicted in Lucas County Common Pleas

case No. CR0199605862 for one count of felonious assault and one count of abduction.

         {¶ 4} On May 17, 1996, appellant was indicted in Lucas County Common Pleas

case No. CR0199605822 for one count of murder, which included a firearm specification.

         {¶ 5} Appellant pled not guilty to the charges, and the two cases were tried

together before a jury from September 16-20, 1996. On September 23, 1996, the jury

returned verdicts finding appellant guilty of murder, with the accompanying firearm

specification, and felonious assault, but not guilty of abduction. Appellant was sentenced

to a term of imprisonment. Appellant timely appealed, and we consolidated the two

cases.

         {¶ 6} On appeal, appellant argued the trial court erred: (1) by denying his motion

for a mistrial, which was made in response to certain comments made by the prosecutor

during closing argument; (2) in ruling an attorney could not testify about statements

appellant made regarding his claim of self-defense; and (3) by sealing the jury’s first two

verdicts and keeping them until the jury reached a verdict on the remaining count. On




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June 19, 1998, we affirmed the trial court’s judgment. See State v. Sybert, 6th Dist.

Lucas No. L-96-337, 1998 WL 351874 (June 19, 1998).

       {¶ 7} On August 27, 1999, appellant filed a pro se petition for postconviction

relief in the trial court. On January 6, 2000, the trial court denied the petition.

Thereafter, appellant filed numerous pro se petitions and motions with the trial court. On

June 4, 2014, appointed counsel for appellant filed a motion to dismiss all pending pro se

filings. The trial court granted the motion to dismiss on June 23, 2014.

{¶ 8} On March 7, 2018, appellant, through appointed counsel, filed a petition for

postconviction relief with the trial court seeking to vacate the judgment of conviction and

sentence due to prosecutorial misconduct, perjury and ineffective assistance of trial

counsel. Appellant argued he was prejudiced by the prosecutor’s repeated

misrepresentations that appellant was qualified as a Marine sharpshooter with a .45-caliber

handgun, while in fact, appellant was qualified as a sharpshooter with an M-14 rifle.

Appellant asserted he also suffered prejudice as a result of the perjured testimony of two

police witnesses regarding the location of two expended shells found at the scene of the

murder. In addition, appellant claimed he was prejudiced by the ineffective assistance of

his trial counsel based on counsel’s failure to retain expert witnesses. Appellant

maintained a medical expert would have testified about the victim’s entrance and exit

wounds, and could have disputed the state’s contention that the victim was shot in the back

of the head, while an expert in firearms, ballistics and crime scene forensics would have




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aided appellant’s self-defense theory and created reasonable doubt as to the location of the

shell casings found at the scene and the sequence of the shots fired.

       {¶ 9} In response, the state filed a motion to dismiss/motion for summary

judgment arguing the postconviction petition was untimely and barred by res judicata.

       {¶ 10} On November 5, 2018, the trial court issued its findings of fact, conclusions

of law and judgment entry. The court found the petition was untimely and barred by res

judicata, as appellant raised claims which should have been brought on direct appeal.

The court granted the state’s motion to dismiss/motion for summary judgment, denied a

request for a hearing and denied the claims in the petition. Appellant appealed.

                                        Argument

       {¶ 11} Appellant argues the trial court’s decision is unreasonable and ambiguous

because it is not discernable whether res judicata applies to his claims regarding perjury

and prosecutorial misconduct.

       {¶ 12} Appellant contends after the June 1998 appellate decision, he filed a

petition for postconviction relief “asserting his trial counsel was ineffective and requested

assistance of counsel. The court’s decision was that appellant’s trial counsel met the

standard for effective trial counsel and that his two other arguments would not prevail

either.”

       {¶ 13} Appellant submits “[t]his explanation has been carried throughout the case;

however, it fails to explain what the other two arguments were that appellant made at that

time.” Appellant argues “it is impossible to ascertain if those arguments are the same as




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those presented * * * in the most recent petition. Therefore, it is not discernable if res

judicata applies to his petition arguments regarding perjury and prosecutorial

misconduct.” Appellant also contends since his trial counsel for postconviction relief

dismissed all prior filings, “those dismissals were not decisions on the merits * * * and

res judicata could not apply to those two arguments.”

                                            Law

       {¶ 14} “A trial court’s decision granting or denying a postconviction petition filed

pursuant to R.C. 2953.21 should be upheld absent an abuse of discretion; a reviewing

court should not overrule the trial court’s finding on a petition for postconviction relief

that is supported by competent and credible evidence.” State v. Gondor, 112 Ohio St.3d

377, 860 N.E.2d 77, 2006-Ohio-6679, ¶ 58. When reviewing a trial court’s decision to

deny a postconviction petition without a hearing, we apply an abuse of discretion

standard. State v. Calhoun, 86 Ohio St.3d 279, 284, 714 N.E.2d 905 (1999). “An abuse

of discretion connotes more than an error of law or judgment; it implies that the court’s

attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶ 15} R.C. 2953.21(A)(2) provides that a petition for postconviction relief “shall

be filed no later than one hundred eighty 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.” However, there are several exceptions set forth in R.C. 2953.23(A)(1) and

(2), whereby a trial court may entertain an untimely postconviction petition.




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       {¶ 16} Under R.C. 2953.23(A)(1)(a), the petitioner must demonstrate either:

(1) the petitioner was unavoidably prevented from discovering the facts necessary for the

claim for relief, or (2) the United States Supreme Court recognized a new federal or state

right that applies retroactively to individuals in the petitioner’s situation. If one of those

two conditions are met, the petitioner must show that but for the constitutional error at

trial, no reasonable finder of fact would have found him guilty. R.C. 2953.23(A)(1)(b).

Under R.C. 2953.23(A)(2), the petitioner must claim actual innocence based on DNA

testing.

       {¶ 17} Another restriction on the statutory procedure for postconviction relief is

the doctrine of res judicata. State v. Sidibeh, 10th Dist. Franklin No. 12AP-498, 2013-

Ohio-2309, ¶ 12. “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 or conviction, or on an appeal from that judgment.” State v.

Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus. To

avoid the doctrine of res judicata, the claims in the petition for postconviction relief must

be supported by competent, relevant, and material evidence, outside of the trial court

record, which evidence did not exist or was not available for use at the time of trial. See

State v. Braden, 10th Dist. Franklin No. 02AP-954, 2003-Ohio-2949, ¶ 27.




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                                           Analysis

         {¶ 18} A review of the record shows the trial court found appellant’s March 7,

2018 petition untimely, and the exceptions under R.C. 2953.23(A) did not apply. We

agree.

         {¶ 19} Appellant’s petition was filed nearly 20 years after our decision was

rendered in his direct appeal. Although appellant averred in his March 14, 2017 affidavit,

which was attached to his petition, that he “did not discover the medical reports of the

gun shot to the head until 2010 as it was buried in paperwork that I had overlooked,” this

does not demonstrate that appellant was unavoidably prevented from discovering the

facts necessary for his claims. The record reveals the medical report was an exhibit at the

1996 trial, and appellant “discovered” it in 2010, some eight years before the petition was

filed. Thus, we find R.C. 2953.23(A)(1)(a) did not apply. We also find R.C.

2953.23(A)(1)(b) did not apply, as appellant did not argue a new federal or state right

applies retroactively to individuals in his situation. Lastly, we conclude R.C.

2953.23(A)(2) did not apply since appellant did not assert a claim of actual innocence

based on DNA testing. Accordingly, we find the trial court did not abuse its discretion in

ruling appellant’s successive petition for postconviction relief was untimely.

         {¶ 20} The trial court also found the claims in the petition were barred by res

judicata as the claims were or could have been raised at trial and/or on direct appeal. We

agree.




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       {¶ 21} Appellant’s claims of prosecutorial misconduct and perjury rely on material

in the trial court record and could have been raised at trial or in his direct appeal.

Appellant’s claim for ineffective assistance of trial counsel based on his counsel’s failure

to retain expert witnesses could have been raised in his direct appeal. Therefore, we find

the trial court did not abuse its discretion by concluding that the claims in appellant’s

petition for postconviction relief were barred by res judicata.

       {¶ 22} Accordingly, we find the trial court did not abuse its discretion in denying

appellant’s petition for postconviction relief, and appellant’s assignment of error is found

not well-taken.

       {¶ 23} On consideration whereof, the judgments of the Lucas County Court of

Common Pleas are affirmed. Costs of this appeal are assessed to appellant pursuant to

App.R. 24.


                                                                         Judgments affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




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                                                                     State v. Sybert
                                                                     C.A. No. L-18-1259




Mark L. Pietrykowski, J.                      _______________________________
                                                          JUDGE
Arlene Singer, J.
                                              _______________________________
Thomas J. Osowik, J.                                      JUDGE
CONCUR.
                                              _______________________________
                                                          JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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