[Cite as State v. Withers, 2013-Ohio-4201.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                   :

                  Plaintiff-Appellee,             :            No. 12AP-865
                                                            (C.P.C. No. 03CR-01-31)
v.                                                :                 and
                                                               No. 12AP-868
Michael C. Withers,                               :        (C.P.C. No. 03CR-05-3368)

                  Defendant-Appellant.           :     (ACCELERATED CALENDAR)


                                          D E C I S I O N

                                   Rendered on September 26, 2013


                  Ron O'Brien, Prosecuting Attorney, and Kimberly M. Bond,
                  for appellee.

                  Michael C. Withers, pro se.

                  APPEALS from the Franklin County Court of Common Pleas
CONNOR, J.
          {¶ 1}   Defendant-appellant, Michael C. Withers ("Withers"), appeals from the
December 20, 2011 decision and entry of the Franklin County Court of Common Pleas
denying his May 20, 2011 motion for a hearing pursuant to Franks v. Delaware, 438 U.S.
154 (1978), that the trial court treated as an R.C. 2953.21 petition for post-conviction
relief.
I. FACTS AND PROCEDURAL BACKGROUND
          {¶ 2} In 2003, by two separate indictments, Withers was charged with sexually
oriented offenses involving his minor step-children. In case No. 03CR-01-31, Withers was
charged with one count of pandering sexually oriented matter involving a minor, a second
degree felony in violation of R.C. 2907.322, seven counts of rape, first degree felonies in
violation of R.C. 2907.02, including one sexually violent predator specification, and one
Nos. 12AP-865 and 12AP-868                                                              2


count of gross sexual imposition, a third degree felony in violation of R.C. 2907.05. In
case No. 03CR-05-3368, Withers was charged with 32 counts of pandering obscenity
involving a minor, second degree felonies in violation of R.C. 2907.321, and 30 counts of
pandering obscenity involving a minor, fourth degree felonies in violation of R.C.
2907.321.
          {¶ 3} On April 8, 2005, after the trial court heard and overruled Withers' two
separate motions to suppress, Withers pleaded guilty, pursuant to a plea agreement, to
one count of pandering sexually oriented matter involving a minor and to four counts of
rape in case No. 03CR-01-31; the remaining charges were dismissed. The court imposed
four eight-year prison sentences for each rape count, to be served consecutively to each
other and consecutively to a two-year prison sentence for the pandering charge. Withers
also pleaded guilty to one count of pandering obscenity involving a minor in case No.
03CR-05-3368; the remaining charges were dismissed. The court imposed a two-year
prison sentence for the pandering charge, to be served concurrently with the sentences
imposed in case No. 03CR-01-31, for a total of 34 years imprisonment.
          {¶ 4}   Withers timely appealed to this court. In this court's decision rendered
January 26, 2006, this court overruled Withers' first and second assignments of error.
State v. Withers, 10th Dist. No. 05AP-458, 2006-Ohio-285 ("Withers I"). This court
stated:
                  [Withers]' first and second assignments of error are
                  interrelated and will be discussed together. In them, Withers
                  contends the trial court erred in denying his motions to
                  suppress. [Withers] claims the evidence obtained from the
                  search following [Withers'] arrest should be suppressed under
                  the Fourth Amendment to the United States Constitution
                  because [Withers] was arrested without probable cause and
                  [Withers'] arrest warrant was defective on its face.

                  We need not consider the merits of [Withers'] argument
                  because by entering a guilty plea [Withers] waived the right to
                  contest the adverse rulings on his motions to suppress. A
                  guilty plea waives any errors that may have occurred prior to
                  sentencing, including those relating to the suppression of
                  evidence. State v. De La Paz, Franklin App. No. 03AP-1147,
                  2004-Ohio-5433, at ¶ 7, citing Huber Hts. v. Duty (1985), 27
Nos. 12AP-865 and 12AP-868                                                                 3


                Ohio App.3d 244. Accordingly, [Withers'] first and second
                assignments of error are overruled.
Id. at ¶ 5-6.
       {¶ 5} In Withers I, having sustained the third and fourth assignments of error,
this court remanded the cases only for resentencing. Id. at ¶ 13.
       {¶ 6} In February 2006, Withers was resentenced by the trial court. Two weeks
later, the Supreme Court of Ohio issued its decision in State v. Foster, 109 Ohio St.3d 1,
2006-Ohio-856. On appeal of his February 2006 sentencing, this court, following Foster,
remanded the case to the trial court for resentencing. State v. Withers, 10th Dist. No.
06AP-302, 2006-Ohio-6989 ("Withers II").
       {¶ 7} In December 2007, Withers was again resentenced by the trial court. On
his appeal, this court affirmed the judgment of the trial court. State v. Withers, 10th Dist.
No. 08AP-39, 2008-Ohio-3175 ("Withers III").
       {¶ 8} On May 2011, Withers moved for a hearing pursuant to Franks. In his
motion, Withers endeavored to challenge the investigative officer's affidavit that was
submitted in support of the arrest and search warrants that were executed prior to the
indictments. Plaintiff-appellee, State of Ohio ("the State"), opposed Withers' motion.
       {¶ 9} On December 20, 2011, the trial court issued a decision and entry denying
Withers' May 22, 2011 motion for a Franks hearing. The trial court treated the motion as
an R.C. 2953.21 petition for post-conviction relief. The trial court found that the petition
was untimely filed and that the doctrine of res judicata barred Withers from relitigating
matters that had been litigated or could have been litigated in the proceedings leading up
to the guilty pleas.
II. ASSIGNMENTS OF ERROR
       {¶ 10} Withers appeals the trial court's December 20, 2011 decision and entry to
this court, bringing two assignments of errors for our review:
                [I.] THE TRIAL COURT ERRED WHEN IT RECAST
                APPELLANTS "MOTION FOR A FRANKS HEARING" INTO
                A PETITION FOR "POST CONVICTION RELIEF".

                [II.] THE APPELLANT SATISFACTORILY MET ALL OF
                THE "FRANKS" CRITERIA. THUS, THE TRIAL COURT
                ERRED BY NOT GRANTING APPELLANT A HEARING.
Nos. 12AP-865 and 12AP-868                                                                  4


III. ANALYSIS
       {¶ 11} Regarding the first assignment of error, the syllabus of State v. Reynolds, 79
Ohio St.3d 158 (1997), states:
              Where 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.

       {¶ 12} Clearly, by his May 20, 2011 motion, Withers sought to vacate his sentence
on the basis that his constitutional rights had been violated in the issuance of both the
arrest and search warrants. Moreover, his May 2011 motion is a collateral challenge to the
validity of his conviction in a criminal case. R.C. 2953.21(J) provides that a petition for
post-conviction relief is the exclusive remedy by which a person may bring a collateral
challenge to the validity of his conviction or sentence.
       {¶ 13} Clearly, the trial court did not err in treating Withers' May 2011 motion as a
petition for post-conviction relief.
       {¶ 14} Given that the May 20, 2011 motion was properly treated as an R.C. 2953.21
petition for post-conviction relief, Withers had 180 days from the time the transcripts
were filed in his direct appeal to file his petition. R.C. 2953.21(A)(2). Because the
transcripts were filed on June 20, 2005, a timely petition was due by the end of December
2005. Withers' May 20, 2011 motion was filed well past the statutory deadline.
       {¶ 15} The statutory time bar is jurisdictional. State v. Hollingsworth, 10th Dist.
No. 08AP-785, 2009-Ohio-1753, ¶ 5; State v. West, 2d Dist. No. 08CA0102, 2009-Ohio-
7057, ¶ 7. Thus, the trial court had no authority to consider the merits of the petition filed
after the 180-day deadline unless the petitioner demonstrates that one of the exceptions
at R.C. 2953.23(A) applies. R.C. 2953.23 provides:
              (A) Whether a hearing is or is not held on a petition filed
              pursuant to section 2953.21 of the Revised Code, a court may
              not entertain a petition filed after the expiration of the period
              prescribed in division (A) of that section or a second petition
              or successive petitions for similar relief on behalf of a
              petitioner unless division (A)(1) or (2) of this section applies:
Nos. 12AP-865 and 12AP-868                                                                  5


              (1) Both of the following apply:

              (a) Either the petitioner shows that the petitioner was
              unavoidably prevented from discovery of the facts upon which
              the petitioner must rely to present the claim for relief, or,
              subsequent to the period prescribed in division (A)(2) of
              section 2953.21 of the Revised Code or to the filing of an
              earlier petition, the United States Supreme Court recognized a
              new federal or state right that applies retroactively to persons
              in the petitioner's situation, and the petition asserts a claim
              based on that right.

              (b) The petitioner shows by clear and convincing evidence
              that, but for constitutional error at trial, no reasonable
              factfinder would have found the petitioner guilty of the
              offense of which the petitioner was convicted.

       {¶ 16} Withers did not assert an exception to the 180-day statutory deadline.
Thus, his petition is time-barred. R.C. 2953.21(A)(2) and 2953.23.
       {¶ 17} Turning to the second assignment of error, a trial court may also dismiss a
petition for post-conviction relief without holding an evidentiary hearing when the claims
raised in the petition are barred by the doctrine of res judicata. State v. Campbell, 10th
Dist. No. 03AP-147, 2003-Ohio-6305, ¶ 16, citing State v. Szefcyk, 77 Ohio St.3d 93
(1996), syllabus.
       {¶ 18} Under the doctrine of res judicata, 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. Id.
       {¶ 19} For a defendant to avoid dismissal of the petition by operation of res
judicata, the evidence supporting the claims in the petition must be competent, relevant
and material evidence outside the trial record and it must not be evidence that existed or
was available for use at the time of trial. Campbell at ¶ 17, citing State v. Cole, 2 Ohio St.
3d 112 (1982), syllabus.
       {¶ 20} At the April 8, 2004 hearing before the trial court, Detective Brian Sheline
was called to testify. Sheline was employed in a unit that investigates sexual abuse cases
involving children.
Nos. 12AP-865 and 12AP-868                                                                  6


          {¶ 21} According to Sheline, one of his co-workers, Detective Lisa McKissick,
received a call from an unknown male who wanted to provide some information to the
police.
          {¶ 22} Sheline and McKissick met the informant at an apartment complex in
Columbus, Ohio. The informant gave them a DVD and stated that there were children
involved in pornography. According to Sheline, the informant stated that he had obtained
the DVD from his 16-year-old cousin. Later, the informant admitted to Sheline that he
had been in Withers' house and that he had made the "tape."
          {¶ 23} Sheline testified that he watched the DVD multiple times, observing sexual
acts involving male and female minor children. Sheline then contacted Franklin County
Children Services and found that Withers had minor children.
          {¶ 24} Although Withers had an arrest record, Sheline could not find an arrest
photograph of Withers. Instead, he obtained a photograph of Withers from the Bureau of
Motor Vehicles ("BMV").          Sheline then compared Withers' photograph with the
individuals appearing in the DVD and determined that Withers was an individual
appearing in the DVD. Later, Sheline went to the clerk's office and obtained arrest
warrants.
          {¶ 25} In his May 20, 2011 motion for a "Franks" hearing, construed by the trial
court as a petition for post-conviction relief, Withers challenged Sheline's identification of
him as an individual appearing in the DVD and Sheline's affidavit submitted in support of
the arrest warrants.
          {¶ 26} Clearly, Withers' May 20, 2011 motion seeks to relitigate matters that were
litigated in the trial court proceedings leading up the guilty pleas. Also, Withers seeks to
litigate matters that could have been litigated in the trial court proceedings leading up to
the guilty pleas.
          {¶ 27} Given the above scenario, the trial court properly determined that the
doctrine of res judicata bars Withers' May 20, 2011 motion from court consideration.
Withers' first and second assignments of error are overruled.
Nos. 12AP-865 and 12AP-868                                                        7


IV. DISPOSITION
      {¶ 28} Having overruled Withers' two assignments of error, we affirm the
judgments of the Franklin County Court of Common Pleas.


                                                                 Judgments affirmed.

                       SADLER and McCORMAC, JJ., concur.

            McCORMAC, J., retired, of the Tenth Appellate District,
            assigned to active duty under authority of Ohio Constitution,
            Article IV, Section 3(C).

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