[Cite as State v. Robinson, 2018-Ohio-856.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                        Hon. Patricia A. Delaney, J.
                                                  Hon. Earle E. Wise, Jr., J.
-vs-
                                                  Case No. 2017CA00117
CALVIN ROBINSON

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Stark County Court of
                                               Common Pleas, Case No. 1995-CR-0005B



JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                        March 5, 2018



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

JOHN D. FERRERO,                               CALVIN M. ROBINSON, PRO SE
Prosecuting Attorney,                          #303-414
Stark County, Ohio                             Marion Correctional Institution
                                               P.O. Box 57
By: KATHLEEN O. TATARSKY                       Marion, Ohio 43301
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South - Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2017CA00117                                                         2

Hoffman, P.J.


        {¶1}   Defendant-appellant Calvin M. Robinson appeals the June 6, 2017

Judgment Entry entered by the Stark Count Court of Common Pleas, which denied his

Motion in Reconsideration to Correct Void Sentence. Plaintiff-appellee is the state of

Ohio.

                                  STATEMENT OF THE CASE1

        {¶2}   On January 27, 1995, the Stark County Grand Jury indicted Appellant on

three counts of felonious assault, in violation of R.C. 2903.11; four counts of kidnapping,

in violation of R.C. 2905.11; one count of felonious sexual penetration, in violation of R.C.

2907.12; four counts of aggravated robbery, in violation of R.C. 2911.01; and one count

of aggravated burglary, in violation of R.C. 2911.11. All of the counts carried attendant

firearm specifications. The charges arose from the December 15, 1994 break-in of a

home in Massillon, Stark County, Ohio, and the subsequent robbery of the four

occupants, the shooting of two of the occupants, and the sexual assault of the female

occupant.

        {¶3}   On March 3, 1995, Appellant withdrew his former plea of not guilty and

entered a plea of guilty to the Indictment. Via Judgment Entry filed March 27, 1995, the

trial court sentenced Appellant to an aggregate prison term of twenty-three to fifty years.

Appellant did not appeal his convictions and sentence.

        {¶4}   Appellant filed a petition for post-conviction relief on September 23, 1996.

Therein, Appellant claimed he was entitled to “truth in sentencing.” Via Judgment Entry



1 A full rendition of the Statement of the Facts underlying Appellant’s original conviction
is not necessary for our disposition of this appeal.
Stark County, Case No. 2017CA00117                                                        3


filed October 22, 1996, the trial court summarily overruled the petition, finding such was

untimely filed. Appellant did not appeal the trial court’s ruling.

       {¶5}   Subsequently, on August 18, 2003, Appellant filed a motion to merge allied

offenses of similar import, asserting he should have been charged with only one count

each of aggravated robbery, kidnapping, and felonious assault. The state filed a reply

and a motion to dismiss, arguing Appellant’s motion was, in essence, a petition for post-

conviction relief and, as such, was untimely filed. Via Judgment Entry filed September 4,

2003, the trial court denied Appellant’s motion, agreeing with the state the motion

constituted a petition for post-conviction relief pursuant to R.C. 2953.21, and was untimely

filed and barred by the doctrine of res judicata.

       {¶6}   Appellant filed an appeal to this Court in State v. Robinson, Stark App. No.

2003CA00333. This Court affirmed the trial court’s decision, likewise finding Appellant’s

petition was untimely and barred by the doctrine of res judicata. State v. Robinson, 5th

Dist. Stark No. 2003CA00333, 2004 -Ohio- 2650.

       {¶7}   On June 1, 2017, Appellant filed a Motion in Reconsideration to Correct

Void Sentence. The trial court summarily denied the motion via Judgment Entry filed June

6, 2017.

       {¶8}   It is from this judgment entry Appellant appeals, raising the following

assignments of error:



              I. DEFENDANT-APPELLANT’S SENTENCE DOESN’T CONFORM

       TO THE MANDATORY PROVISIONS IN R.C. 2941.25
Stark County, Case No. 2017CA00117                                                           4


              II. DEFENDANT-APPELLANT’S SENTENCE IS DECLARED “VOID”

       BECAUSE THE SENTENCE DOESN’T CONFORM TO STATUTORY

       REQUIREMENTS

              III.   DEFENDANT-APPELLANT’S                      SENTENCE    DOESN’T’

       CONFORM TO THE MANDATORY PROVISIONS IN R.C. 2941.25(A)

              IV. DEFENDANT-APPELLANT’S SENTENCE IN 1995-CR-0005(B)

       IS VIOLATING HIS 14TH AMENDMENT, SECTION 1 – DUE PROCESS

       RIGHTS

              V. DEFENDANT APPELLANT STATES THAT IN THE ORIGINAL

       FILING OF THE “NOTICE OF APPEAL” OF THIS CASE AT BAR, THE

       DEFENDANT-APPELLANT STATED THAT HE WANTED THIS “APPEAL”

       TO BE HEARD UNDER THE DOCTRINES OF 2953.08 G(2)(B) FOR

       SUCH SENTENCE IS CONTRARY TO LAW.



                                            I, II, III, IV, V

       {¶9}   We address Appellant's assignments of error together as they are controlled

by the same legal principle.

       {¶10} Although not captioned as such, Appellant’s motion was, and the trial court

properly treated it as, a petition for post-conviction relief. The caption of a pro se pleading

does not define the nature of the pleading. State v. Reynolds, 79 Ohio St.3d 158, 160,

679 N.E.2d 1131 (1997). Thus, if the pleading meets the definition of a petition for post-

conviction relief, it must be treated as such, regardless of the manner in which appellant

actually presents the motion to the court. State v. Green, 5th Dist. Knox No. 15–CA–13,
Stark County, Case No. 2017CA00117                                                             5


2015–Ohio–4441, ¶ 10. A motion meets the definition of a motion for post-conviction relief

set forth in R.C. 2953.21(A)(1) if it is (1) filed subsequent to direct appeal; (2) claims a

denial of constitutional rights; (3) seeks to render the judgment void; and (4) asks for

vacation of the judgment and sentence. Reynolds, supra, 79 Ohio St.3d at 160.

       {¶11} As a petition for post-conviction relief, Appellant’s motion was filed well

beyond the time limits set by R.C. 2953.21, which requires a petition for to be filed no

later than 365 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 365 days after the expiration of the

time for filing an appeal if no direct appeal is filed. Appellant was convicted and sentenced

in 1995; therefore, the petition was untimely.

       {¶12} Appellant failed to present evidence to establish any of the exceptions to

R.C. 953.23(A)(1) apply to the untimely motion. Appellant did not demonstrate he was

unavoidably prevented from discovering facts to present his claim or that a new federal

or state right accrued retroactively to his claim. R.C. 2953.23(A)(1)(a). Nor did he

demonstrate by clear and convincing evidence that, but for a constitutional error, no

reasonable factfinder would have found him guilty of the offense as he pled guilty to the

charge. R.C. 2953.23(A)(1)(b).

       {¶13} When a petition for post-conviction relief is filed untimely and does not meet

the requirements of R.C. 2953.23(A)(1), a trial court lacks jurisdiction to entertain the

merits of the petition. State v. Lynn, 5th Dist. Muskingum No. CT2007–0046, 2008–Ohio–

2149. Accordingly, the trial court did not err in denying Appellant's motion for relief from

the judgment.
Stark County, Case No. 2017CA00117                                                           6


       {¶14} Further, it is well-settled, “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. Elmore, 5th Dist. Licking No. 2005–CA–32, 2005–Ohio–5940

(Citation omitted.) Under the doctrine of res judicata, a final judgment of conviction bars

the defendant who was represented by counsel from raising and litigating in any

proceedings, except an appeal from that judgment, any defense or claimed lack of due

process that the defendant raised or could have raised at the trial which resulted in that

judgment of conviction or on appeal from that judgment. State v. Perry, 10 Ohio St.2d

175, 226 N.E.2d 104 (1967). A defendant who was represented by counsel is barred from

raising an issue in a petition for post-conviction relief if the defendant raised or could have

raised the issue at trial or on direct appeal. State v. Szefcyk, 77 Ohio St.3d 93, 671 N.E.2d

233 (1996).

       {¶15} Appellant's arguments could have been raised on direct appeal; therefore,

are barred by res judicata. Accordingly, we find the trial court properly denied Appellant's

motion.

       {¶16} Appellant's first, second, third, fourth, and fifth assignments of error are

overruled.
Stark County, Case No. 2017CA00117                                                7


      {¶17} The judgment of the Stark County Court of Common Pleas is affirmed.




By: Hoffman, P.J.

Delaney, J. and

Wise, Earle, J. concur
