[Cite as State v. Williams, 2014-Ohio-4117.]




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


State of Ohio                                      Court of Appeals No. L-14-1011

        Appellee                                   Trial Court No. CR0199606266

v.

Kevin L. Williams                                  DECISION AND JUDGMENT

        Appellant                                  Decided: September 19, 2014

                                               *****

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

        Kevin Williams, pro se.

                                               *****

        OSOWIK, J.

        {¶ 1} This is a pro se accelerated appeal from a judgment of the Lucas County

Court of Common Pleas that denied appellant’s motion to vacate his sentences for murder

and attempted murder imposed in 1996. For the following reasons, the judgment of the

trial court is affirmed.
       {¶ 2} The facts and procedural history relevant to the issues raised on appeal are as

follows. In 1996, appellant was found guilty of the murder of one man and attempted

murder of another following trial to a jury. Both convictions carried firearm

specifications. Appellant was sentenced to 15 years to life for the murder conviction, to

be served subsequent to a three-year term for the attached firearm specification.

Additionally, appellant was sentenced to 10 to 25 years for attempted murder, to be

served consecutively to the sentence for the murder conviction; the attached firearm

specification was ordered served concurrently with the term for the specification attached

to the murder conviction.

       {¶ 3} This court affirmed appellant’s convictions and sentences. See State v.

Williams, 6th Dist. Lucas No. L-96-353, 1998 WL 135072 (Mar. 20, 1998). Thereafter,

the Ohio Supreme Court declined further review. See State v. Williams, 82 Ohio St.3d

1442, 695 N.E.2d 265 (1998).

       {¶ 4} On September 30, 2013, appellant sought to vacate his sentences on the

ground that his convictions should have been merged. On December 19, 2013, the trial

court found that the motion was subject to dismissal for lack of jurisdiction and denial on

the merits. More specifically, the trial court denied the motion on grounds that it was an

untimely petition for postconviction relief and because it failed to meet the requirements

for a late or successive postconviction petition set forth in R.C. 2953.23. The trial court

further noted that appellant’s petition was barred by res judicata, it sought retroactive

application of judicial rulings to a final judgment, and it failed to demonstrate that




2.
appellant was improperly sentenced under the law in effect at the time of sentencing.

Appellant now appeals that judgment.

       {¶ 5} Appellant sets forth the following sole assignment of error:

              The Trial Court abused its discretion when it committed plain error

       by failing to complete its determination of allied offenses and merge Mr.

       Williams’ facially evidence counts of allied offenses, after merging some of

       the allied counts, in violation of Defendant’s rights to double jeopardy

       protection, due process and equal protection pursuant to R.C. 2941.25;

       Ohio constitution, Article I, §10 and §16; Fifth, Sixth and Fourteenth

       Amendments to the United States Constitution.

       {¶ 6} Appellant’s petition was properly denied by the trial court for three primary

reasons. First, appellant’s petition was not timely filed. This court has held that a motion

raising allied offense issues—as in the instant case—is properly treated as a petition for

postconviction relief. See State v. Robinson, 6th Dist. Huron No. H-12-025, 2013-Ohio-

2941, ¶ 6. We review a trial court’s decision granting or denying a postconviction relief

petition for an abuse of discretion. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-

6679, 860 N.E.2d 77, ¶ 58. An abuse of discretion connotes that the trial court’s attitude

is arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d

217, 219, 450 N.E.2d 1140 (1983). Pursuant to R.C. 2953.21, a petition for

postconviction relief shall be filed no later than 180 days after the trial transcript is filed

in the court of appeals in the direct appeal of the judgment of conviction. See R.C.




3.
2953.21(A)(2). Appellant’s appeal was decided in 1998 and his motion to vacate was

filed on September 30, 2013, clearly outside the 180-day window for postconviction

relief. Although R.C. 2953.23(A) permits late filing of petitions for postconviction relief

under certain circumstances, we find that appellant’s petition did not meet any of the

requirements for an untimely filing. See R.C. 2953.23(A)(1)(a) and (b). Thus, the trial

court did not abuse its discretion in denying appellant’s motion to vacate.

       {¶ 7} Further, the petition fails because his claims are barred by res judicata.

Issues related to allied offenses are capable of resolution on direct appeal, and those

issues are therefore barred by res judicata from consideration in a petition for

postconviction relief. See, e.g., State v. Gates, 6th Dist. Lucas No. L-10-1163, 2011-

Ohio-3492, ¶ 13. The petitioner bears the burden of providing evidentiary support of an

alleged denial of a constitutional right and resultant prejudice. State v. Jackson, 64 Ohio

St.2d 107, 413 N.E.2d 819 (1980), syllabus; further, in order to overcome the barrier of

res judicata, evidence offered in support of the petition must be from outside the record.

State v. Cole, 2 Ohio St.3d 112, 114, 443 N.E.2d 169 (1982). Appellant has not offered

any such evidence in support of his petition. Additionally, appellant has not produced

any qualifying new evidence or established that he could not have raised the issues

presented in his motion in a direct appeal. See State v. Reynolds, 79 Ohio St.3d 158, 161,

679 N.E.2d 1131 (1997). Accordingly, res judicata applies and bars appellant’s request

for an allied offense determination.




4.
       {¶ 8} Lastly, as to appellant’s argument that the two offenses of which he was

convicted are allied offenses of similar import, it is undisputed that there were two

gunshot victims. Appellant shot the first victim in the face; that victim remained

conscious and later testified that he heard three or four more shots after he was hit. The

second victim was pronounced dead at the scene, having been shot in the head and chest.

The evidence supports a finding that appellant had a separate animus toward each victim,

which supports two separate convictions. Both this court and the Supreme Court of Ohio

have held that offenses are of dissimilar import when a defendant harms multiple

individuals through the same course of conduct and each offense charged is defined in

terms of conduct toward another person. In such cases, a separate animus exists for each

victim and offense. See State v. Mitchell, 6th Dist. Erie No. E-09-064, 2011-Ohio-973;

State v. Jones, 18 Ohio St.3d 116, 118, 480 N.E.2d 408 (1985); State v. Franklin, 97

Ohio St.3d 1, 2002-Ohio-5304, 776 N.E.2d 26, ¶ 48.

       {¶ 9} For the foregoing reasons, this court finds appellant’s sole assignment of

error not well-taken.

       {¶ 10} Upon consideration whereof, the judgment of the Lucas County Court of

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

App.R. 24.


                                                                        Judgment affirmed.




5.
                                                                      State v. Williams
                                                                      C.A. No. L-14-1011




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




Thomas J. Osowik, J.                           _______________________________
                                                           JUDGE
Stephen A. Yarbrough, P.J.
                                               _______________________________
James D. Jensen, 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.sconet.state.oh.us/rod/newpdf/?source=6.




6.
