[Cite as State v. Toliver, 2019-Ohio-3669.]




                       IN THE COURT OF APPEALS OF OHIO
                          FOURTH APPELLATE DISTRICT
                               ATHENS COUNTY

STATE OF OHIO,                  :
                                :
     Plaintiff-Appellee,        : Case No. 19CA3
                                :
     vs.                        :
                                :
DECHAUN TOLIVER,                : DECISION AND JUDGMENT
                                : ENTRY
     Defendant-Appellant.       :
_____________________________________________________________
                          APPEARANCES:

Dechaun Toliver, Caldwell, Ohio, Appellant Pro Se.

Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry M.
Saunders, Assistant Prosecuting Attorney, Athens, Ohio, for Appellee.
_____________________________________________________________
Smith, P. J.

        {¶1} Dechaun Toliver appeals the judgment entry of the Court of

Common Pleas, Athens County, captioned Decision on Pending Motions,

dated February 8, 2019. On appeal, Toliver asserts that the trial court

abused its discretion in denying his motion for summary judgment and

petition for postconviction relief, as well as extending leave to the State of

Ohio to file a response to the postconviction petition. Upon our review, we

find no merit to Toliver’s arguments. Accordingly, we overrule Toliver’s

sole assignment of error and affirm the judgment of the trial court.
Athens App. No. 19CA03                                                                                 2




                            FACTS AND PROCEDURAL HISTORY

        {¶2} The Athens County Clerk of Court’s online records,

www.co.athensoh.org/departments/clerkofcourts, of which we may take

judicial notice, indicate that Dechaun Toliver, “Appellant,” was indicted on

two counts of trafficking in cocaine, violations of R.C. 2925.03(A)(1), on

April 23, 2018.1 This case was assigned Athens County Common Pleas

Court Case No. 18CR0166. The clerk’s online records further reflect that on

June 27, 2018, Appellant entered a guilty plea to a Bill of Information

charging him with one count of Engaging in a Pattern of Corrupt Activity, a

violation of R.C. 2923.32(A)(1). This case was assigned Athens County

Common Pleas Court Case No. 18CR0273. The trial court ordered both

case numbers consolidated, and to proceed under the latter case number.

        {¶3} Appellant’s guilty plea was to all three counts. On the “corrupt

activity” count, he was sentenced to a prison term of eight years. Sentences

of twelve months were imposed on both of the underlying trafficking counts,

to be served concurrently with the eight years imposed on the corrupt

activity count. The State of Ohio reserved the right to oppose judicial

release if Appellant chose to file for it. The judgment entry of sentence was
1
 See State v. Rutherford, 4th Dist. Pike No.17CA883, 2018-Ohio-2638, at fn4, (We may take judicial
notice of common pleas court websites, as explained in In re Helfrich, 5th Dist. Licking No. 13CA20,
2014-Ohio-1933, at ¶ 35.)
Athens App. No. 19CA03                                                           3


journalized on June 28, 2018. Appellant did not file a direct appeal of these

convictions.

      {¶4} On September 28, 2018, Appellant filed a petition for

postconviction relief. Appellant did not challenge the trafficking

convictions, but asserted that the bill of information failed to charge an

essential element of Engaging in a Pattern of Corrupt Activity and that he

therefore entered a plea of guilty to a fatally defective bill of information,

making the judgment entry of sentence void. Appellant asked the trial court

to vacate his conviction and the judgment entry of sentence.

      {¶5} On October 19, 2018, Appellant filed a “motion for summary

judgment”. Based on the same argument made in his petition for

postconviction relief, Appellant asked that he be granted summary judgment

as a matter of law. On October 23, 2018, the State of Ohio requested an

extension of time to file a response to Appellant’s petition for postconviction

relief. The State pointed out that it had not been provided a copy of

Appellant’s postconviction petition. The trial court granted the State’s

request for extension.

      {¶6} In the State’s Response to Petitioner’s Petition for

Postconviction Relief, the State pointed out that Appellant had legal counsel

and that Appellant and his legal counsel reviewed the Bill of Information
Athens App. No. 19CA03                                                        4


and negotiated the plea agreement with the State. The State also pointed out

that Appellant waived in open court his prosecution by indictment.

      {¶7} On November 15, 2018, Appellant filed “Petitioner’s Traverse”

as a responsive pleading to the State’s arguments.

      {¶8} On February 8, 2019, the trial court journalized its Decision on

Pending Motions. The trial court denied Appellant’s motion for summary

judgment and petition for postconviction relief. The trial court found no

merit to Appellant’s argument that the bill of information was faulty. The

trial court however denied the postconviction petition, without explicitly

stating so, on the basis of res judicata. This timely appeal followed.

                           ASSIGNMENTS OF ERROR

      I.        “THE TRIAL COURT ABUSED ITS DISCRETION IN:
                DENYING SUMMARY JUDGMENT, EXTENDING
                LEAVE TO THE STATE OF OHIO, AND DENYING POST-
                CONVICTION RELIEF.”

      {¶9} Because Appellant’s arguments are interrelated, we consider

them jointly.

                          STANDARD OF REVIEW

      {¶10} The postconviction relief process is a collateral civil attack on a

criminal judgment rather than an appeal of the judgment. State v. Gaffin, 4th

Dist. Adams No. 17CA1057, 2019-Ohio-291 at ¶ 20; State v. Calhoun, 86

Ohio St.3d 279, 281, 714 N.E.2d 905 (1999). Postconviction relief is not a
Athens App. No. 19CA03                                                         5


constitutional right; instead, it is a narrow remedy that gives the petitioner no

more rights than those granted by statute. Id. It is a means to resolve

constitutional claims that cannot be addressed on direct appeal because the

evidence supporting the claims is not contained in the record. State v.

McDougald, 4th Dist. Scioto No. 16CA3736, 2016-Ohio-5080, ¶ 19-20,

citing State v. Knauff, 4th Dist. Adams No. 13CA976, 2014-Ohio-308, ¶ 18.

A petition for post-conviction relief does not provide a petitioner a second

opportunity to litigate his conviction. State v. Cox, 5th Dist. Muskingum

No. CT2018-0075, 2019-Ohio-521, at ¶ 10; State v. Lewis, 5th Dist. Stark

No.2007CA00358, 2008-Ohio-3113, ¶ 8, citing State v. Jackson, 64 Ohio

St.2d 107, 110, 413 N.E.2d 819 (1980).

      {¶11} “ ‘[A] trial court's decision granting or denying a

postconviction relief 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.’ ” Gaffin, supra at ¶ 21,

quoting, State v. Smith, 4th Dist. Scioto No. 16CA3774, 2017-Ohio-7659,

¶ 8, quoting State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860

N.E.2d 77, ¶ 58; see also State v. Betts, 4th Dist. Vinton No. 18CA710,

2018-Ohio-2720, ¶ 12. A trial court abuses its discretion when its decision
   Athens App. No. 19CA03                                                          6


   is unreasonable, arbitrary, or unconscionable. In re H.V., 138 Ohio St.3d

   408, 2014-Ohio-812, 7 N.E.3d 1173, ¶ 8.

                              LEGAL ANALYSIS

1. Postconviction petition

         {¶12} In his petition and on appeal, Appellant has claimed that the

   facts contained in the bill of information to which he pled were insufficient

   to establish that he was involved in an illegal enterprise, an essential element

   to Engaging in a Pattern of Corrupt Activity. Therefore, he concludes the

   bill of information was defective and his conviction is void. Appellant

   essentially requests this Court find that the trial court abused its discretion in

   denying his postconviction petition and to enter judgment accordingly.

         {¶13} Under R.C. 2941.08(K), a bill of information is not invalidated

   by “defects or imperfections which do not tend to prejudice the substantial

   rights of the defendant upon the merits.” State v. Johnson, 101 Ohio App.

   3d, 129, 133, 655 N.E. 2d 208 (11th Dist. 1995). Generally speaking,

   objections to a defect in an indictment, information, or complaint must be

   raised before trial. See Crim.R.12(C)(2); State v. Dukes, 4th Dist. Scioto No.

   16CA3745, 2017-Ohio-7204, at ¶ 65. Additionally, pursuant to R.C.

   2941.59, an accused waives all defects by pleading to an offense without

   objection. Johnson, supra.
Athens App. No. 19CA03                                                        7


      {¶14} However, in this case, Appellant’s case, the doctrine of res

judicata applies. 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. Cox, supra, at

¶ 11; State v. Szefcyk, 77 Ohio St.3d 93, 671 N.E.2d 233 (1996), syllabus,

approving and following State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104

(1967), paragraph nine of the syllabus. It is well settled that, “pursuant to

res judicata, a defendant cannot raise an issue in a [petition] for post-

conviction relief if he or she could have raised the issue on direct appeal.”

State v. Reynolds, 79 Ohio St.3d 158, 161, 679 N.E.2d 1131 (1997). A

petition for postconviction relief is not a substitute for a direct appeal. Cox,

supra, at ¶ 13; State v. Holliday, 5th Dist. Delaware No. 2012-Ohio-2376 ¶

17 citing State v. Thompson, 9th Dist. 11CAA110104, 2009-Ohio-200.

      {¶15} In State v. Dingus, 12th Dist. Madison No. CA91-08-025, 1992

WL 80710, Dingus claimed that the bill of information in his case was

insufficient to give him notice of the offenses for which he was charged.

The appellate court, however, found that the alleged sufficiency violation
  Athens App. No. 19CA03                                                       8


  could have been raised at trial or directly on appeal, but Dingus failed to do

  so. The Dingus court found, “[B]y not raising the issue of the sufficiency of

  the bill of information at the trial or appellate level, we hold that appellant

  has waived his right to raise the issue in a post-conviction proceeding. Id. at

  *2. See also State v. Simmans, 21 Ohio St.2d 258, 257 N.E. 2d 344 (1970)

  (indictment using words of a statute describing the offense is sufficient

  where no objection to sufficiency of the indictment is interposed before

  submission of the case).

        {¶16} In this case, Appellant failed to raise any issue with regard to

  the bill of information in a direct appeal. Thus, he is barred by res judicata.

  The trial court did not abuse its discretion in denying his postconviction

  petition.

2. Summary Judgment

        {¶17} Summary judgment is appropriate if the party moving for

  summary judgment establishes that (1) there is no genuine issue of material

  fact, (2) reasonable minds can come to but one conclusion, which is adverse

  to the party against whom the motion is made and (3) the moving party is

  entitled to judgment as a matter of law. Civ.R. 56; New Destiny Treatment

  Ctr., Inc. v. Wheeler, 129 Ohio St.3d 39, 2011-Ohio-2266, 950 N.E.2d 157,
  Athens App. No. 19CA03                                                       9


  ¶ 24; Chase Home Finance, LLC v. Dunlap, 4th Dist. Ross No. 13CA3409,

  2014-Ohio-3484, 2014 WL 3940314, ¶ 26.

        {¶18} The moving party has the initial burden of informing the trial

  court of the basis for the motion by pointing to summary judgment evidence

  and identifying parts of the record that demonstrate the absence of a genuine

  issue of material fact on the pertinent claims. Dresher v. Burt, 75 Ohio St.3d

  280, 293, 662 N.E.2d 264 (1996); Chase Home Finance at ¶ 27. Appellate

  review of summary judgment decisions is de novo, governed by the

  standards of Civ.R. 56. Vacha v. N. Ridgeville, 136 Ohio St.3d 199, 2013-

  Ohio-3020, 992 N.E.2d 1126, ¶ 19.

        {¶19} Having found that the trial court did not abuse its discretion in

  denying Appellant’s petition for postconviction relief, we further find

  Appellant was not entitled to summary judgment as a matter of law. We

  find no merit to Appellant’s argument pertaining to his motion for summary

  judgment.

3. Leave to Respond

        {¶20} R.C. 2953.21(E) provides that within ten days after the

  docketing of the petition, or within any further time that the trial court may

  fix for good cause shown, the prosecuting attorney shall respond by answer

  or motion. The Athens County Clerk of Court’s online docket demonstrates
Athens App. No. 19CA03                                                          10


that the petition for postconviction relief was filed on September 28, 2018.

The State indicated in its motion for extension of time that it never received

a copy of the postconviction petition and was only made aware of the

petition through Appellant’s motion for summary judgment.

      {¶21} In State v. Crockett, 8th Dist. Cuyahoga No. 103199, 2016-

Ohio-220, at ¶ 19, the appellate court noted that the time period in which to

respond to a petition for postconviction relief set forth in R.C. 2953.21(D) is

not mandatory, but, in fact, directory, meaning that the time period is not

rigid. In Crockett, the court held that, given the directory nature of the

statute, the trial court did not abuse its discretion in allowing the State to file

its response.

      {¶22} In this case, Appellant did not challenge the State’s reason for

requesting an extension. The State apparently did not receive a copy of the

postconviction petition and was unaware it was pending.              Under these

circumstances, we find the trial court did not abuse its discretion in granting

the State’s motion for extension. We thus find no merit to Appellant’s

argument that the trial court erred in granting the State’s motion for

extension.
Athens App. No. 19CA03                                                     11


                              CONCLUSION

      {¶23} For the foregoing reasons, we find no merit to Appellant’s sole

assignment of error. Accordingly, the judgment of the trial court is affirmed.



                                                JUDGMENT AFFIRMED.
Athens App. No. 19CA03                                                         12


                           JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Athens County Common Pleas Court to carry this judgment into
execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

      McFarland, J. & Hess, J.: Concur in Judgment and Opinion

                              For the Court,
                          BY: __________________________________
                              Jason P. Smith, Presiding Judge

                          NOTICE TO COUNSEL

      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
