[Cite as State v. Kyle, 2012-Ohio-456.]


STATE OF OHIO                      )                   IN THE COURT OF APPEALS
                                   )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                   )

STATE OF OHIO                                          C.A. No.       25974

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
SHERMAN KYLE, III                                      COURT OF COMMON PLEAS
                                                       COUNTY OF SUMMIT, OHIO
        Appellant                                      CASE No.   CR 08 10 3401

                                  DECISION AND JOURNAL ENTRY

Dated: February 8, 2012



        CARR, Judge.

        {¶1}     Appellant, Sherman Kyle III, appeals the judgment of the Summit County Court

of Common Pleas. This Court affirms.

                                                  I.

        {¶2}     Kyle was convicted of numerous offenses and sentenced accordingly.               He

appealed his conviction and sentence, and this Court affirmed. State v. Kyle, 9th Dist. No.

24655, 2010-Ohio-4456.

        {¶3}     On February 2, 2011, Kyle filed a petition for post-conviction relief which he

captioned as a “petition to vacate or set aside judgment of conviction or sentence.” The State

moved to dismiss the petition as untimely. On February 28, 2011, the trial court dismissed the

petition. Kyle did not appeal that order.

        {¶4}     On April 28, 2011, Kyle filed a “motion to set aside judgment and sentence” in

which he argued that trial court error resulted in a violation of his constitutional rights. The State
                                                 2


opposed the motion, and Kyle replied. On May 13, 2011, the trial court denied the motion. Kyle

appealed, raising two assignments of error for review.

                                                 II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT COMMITTED PLAIN AND REVERSIBLE ERROR
       PURSUANT TO R.C. 2945.75(A)(2) AND STATE VS. PELFREY BECAUSE
       THE JURY VERDICT FORMS DID NOT INCLUDE THE OFFENSE NOR
       ANY AGGRAVATING ELEMENTS[,] WHICH IS A DIRECT VIOLATION
       OF THE 5TH, 6TH, AND 14TH AMENDMENTS.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT COMMITTED PLAIN AND REVERSIBLE ERROR
       PURSUANT TO CRIM.R. 52(B) AND STATE VS. GRIGG BY WAY OF
       DEFECTIVE REASONABLE DOUBT INSTRUCTIONS BEING GIVEN TO
       THE JURY, WHICH IS IN DIRECT VIOLATION OF THE 5TH, 6TH, AND
       14TH AMENDMENTS.

       {¶5}    Kyle argues that the trial court erred by denying his motion to set aside his

judgment of conviction and sentence. This Court disagrees.

       {¶6}    It is well settled that “[w]here a criminal defendant, subsequent to his or her direct

appeal, files a motion seeking vacation or correction of his or her sentence on the basis that his or

her constitutional rights have been violated, such a motion is a petition for postconviction relief

as defined in R.C. 2953.21.” State v. Reynolds, 79 Ohio St.3d 158, at syllabus (1997). R.C.

2953.21(A)(1)(a) provides that “[a]ny person who has been convicted of a criminal offense * * *

and who claims that there was such a denial or infringement of the person’s rights as to render

the judgment void or voidable under the Ohio Constitution or the Constitution of the United

States, * * * may file a petition in the court that imposed sentence, stating the grounds for relief

relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other

appropriate relief.” Kyle failed to raise the instant issues in his direct appeal and he alleged a
                                                 3


violation of his constitutional rights in his most recent motion. Accordingly, we must construe

his motion as a petition for post-conviction relief. Moreover, because he filed an earlier petition

for post-conviction relief, we must construe the instant petition as a successive one.

       {¶7}    This Court recently wrote: “Successive petitions for post-conviction relief are

governed by R.C. 2953.23. Under R.C. 2953.23(A) a trial court is forbidden from entertaining a

second or successive petition for post-conviction relief unless it meets two conditions. First, the

petitioner must show either that he was unavoidably prevented from discovering the facts upon

which he relies in the petition, or that the United States Supreme Court has, since his last

petition, recognized a new federal or state right that applies retroactively to the petitioner.

Second, the petitioner must show by clear and convincing evidence that a reasonable factfinder

would not have found him guilty but for constitutional error at trial. See R.C. 2953.23(A)(1).”

State v. Williams, 9th Dist. No. 25879, 2011-Ohio-6141, at ¶ 15.

       {¶8}    In this case, Kyle’s successive petition did not explain how he was unavoidably

prevented from discovering the facts upon which his petition was based. The verdict forms and

jury instructions were apparent on the face of the record since before he filed his direct appeal.

Neither did he claim or identify a new retroactive right that has been recognized by the United

States Supreme Court since he filed his first petition. Accordingly, the trial court lacked the

statutory authority to consider the merits of his successive petition and properly denied him the

relief requested. Kyle’s assignments of error are overruled.

                                                III.

       {¶9}    Kyle’s assignments of error are overruled. The judgment of the Summit County

Court of Common Pleas is affirmed.

                                                                                Judgment affirmed.
                                                 4




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     DONNA J. CARR
                                                     FOR THE COURT



WHITMORE, P. J.
DICKINSON, J.
CONCUR


APPEARANCES:

SHERMAN KYLE III, pro se, Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
