[Cite as State v. Palmer, 2012-Ohio-5255.]
STATE OF OHIO, JEFFERSON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 11 JE 17
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
ATROPIN PALMER )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Jefferson County,
Ohio
Case No. 04 CR 194
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Jane Hanlin
Prosecuting Attorney
Jefferson County Justice Center
16001 State Route 7
Steubenville, Ohio 43952
For Defendant-Appellant: Atropin Palmer, #474-594
Southern Ohio Correctional Facility
P.O. Box 45699
Lucasvile, Ohio 45699
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: November 6, 2012
[Cite as State v. Palmer, 2012-Ohio-5255.]
WAITE, P.J.
{¶1} Appellant Atropin Palmer was convicted of aggravated burglary and
escape in 2004 in the Jefferson County Court of Common Pleas. The convictions
were affirmed on appeal, but the case was remanded for the purpose of
resentencing, only. State v. Palmer, 7th Dist. No. 04-JE-41, 2006-Ohio-749. He was
resentenced on April 11, 2006, to six years in prison for aggravated burglary and four
years for escape, to be served consecutively, for a total of ten years in prison.
Appellant filed an appeal, but the sentence was affirmed. State v. Palmer, 7th Dist.
No. 06-JE-20, 2007-Ohio-1572.
{¶2} Years later Appellant filed a motion in the trial court claiming that he
was denied his statutory right to a speedy trial. The trial court denied the motion on
May 5, 2011. Appellant's motion can only be framed as a motion for postconviction
relief. It was denied by the trial court for the following reasons: (1) any speedy trial
error is res judicata here because no objection was raised in the trial court prior to the
conviction, or as part of the direct appeal of the conviction; (2) Appellant raised a
statutory error, but postconviction proceedings are limited to constitutional violations;
and (3) Appellant has not met the jurisdictional requirements for filing a second or
successive motion for postconviction relief. The trial court was correct in overruling
the motion, and the judgment is affirmed.
{¶3} Although Appellant's initial criminal case has a rather complex
background in the judicial system due to multiple resentencings, multiple appeals,
and multiple filings of both postconviction relief petitions and original actions related
to the underlying conviction, the procedural history relevant to this appeal is rather
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brief. Appellant was convicted and sentenced on November 24, 2004. He appealed
and the conviction was upheld but his case was remanded for resentencing. He was
resentenced on April 11, 2006, and that sentence was upheld on appeal.
{¶4} On May 2, 2005, Appellant filed a petition for postconviction relief. This
was denied by the trial court and the judgment was affirmed on appeal. State v.
Palmer, 7th Dist. No. 05JE47, 2006-Ohio-4606. Appellant filed another motion for
postconviction relief on February 29, 2008, which was also denied by the trial court
and the judgment was affirmed on appeal. State v. Palmer, 7th Dist. No. 08 JE 18,
2009-Ohio-1018.
{¶5} On May 2, 2011, Appellant filed the motion presently before us with the
trial court, seeking a new trial or dismissal of his charges based on violation of his
statutory speedy trial rights under R.C. 2945.71. The trial court denied the motion on
May 5, 2011. This appeal followed. We have already interpreted this appeal as an
appeal of the denial of a motion for postconviction relief. (5/19/11 Order.)
ASSIGNMENT OF ERROR
As a result of the trial court’s denying Appellant’s R.C. 2945.71(D)
speedy trial of the indictment for purposes of trial, Appellant was denied
a fair trial.
{¶6} Appellant is challenging the trial court's ruling denying his
postconviction motion to have his conviction discharged on the basis of an alleged
statutory speedy trial violation. Appellant did not raise a speedy trial objection prior to
his conviction, and did not raise it in his first direct appeal that resulted in an
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affirmance of the conviction. Hence, the matter is now res judicata. The doctrine of
res judicata bars the further litigation of any claim that was ruled on in a direct appeal,
or could have been raised on direct appeal and was not. State v. Houston, 73 Ohio
St.3d 346, 347, 652 N.E.2d 1018 (1995). This includes alleged speedy trial errors.
State v. Ross, 7th Dist. No. 11-MA-32, 2012-Ohio-2433, ¶38, citing State v. Green,
7th Dist. No. 10-MA-43, 2010-Ohio-6271, ¶26.
{¶7} Appellant's motion to the trial court was in the nature of a petition for
postconviction relief, and thus, the rules of postconviction relief apply to this appeal.
A criminal defendant may not use postconviction relief proceedings to raise a speedy
trial issue that was not raised prior to trial and conviction, or was not raised as part of
the direct appeal of the conviction. State v. Davis, 7th Dist. No. 08 MA 174, 2009-
Ohio-4634, ¶15.
{¶8} Additionally, postconviction relief is limited to challenges of a
constitutional nature: “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.” State v. Reynolds, 79
Ohio St.3d 158, 679 N.E.2d 1131 (1997), syllabus. Appellant is raising a statutory
issue here and not a constitutional error. Therefore, postconviction relief is not
appropriate.
{¶9} Finally, Appellant's motion, which can only be characterized as a
successive petition for postconviction relief, does not meet the requirements
governing postconviction relief found in R.C. 2953.23. Pursuant to R.C. 2953.23(A),
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a court may not entertain a second or successive petition for postconviction relief
unless the defendant initially demonstrates either: (1) he was unavoidably prevented
from discovering facts necessary for the claim for relief; or (2) the United States
Supreme Court has recognized a new federal or state right that applies retroactively
to persons in defendant's situation. R.C. 2953.23(A)(1). Appellant has not even
alleged, and certainly not shown, either of these two prerequisites. Without such a
showing, neither the trial court nor this Court has jurisdiction to entertain the petition.
State v. Butler, 7th Dist. No. 09 JE 1, 2010-Ohio-2537, ¶15; State v. Haschenburger,
7th Dist. No. 08-MA-223, 2009-Ohio-6527, ¶12. Since this is a jurisdictional matter, it
may be raised sua sponte by this Court. State v. Brothers, 7th Dist. Nos. 10 CO 6,
10 CO 7, 2010-Ohio-3987, ¶2.
{¶10} Because Appellant's claim of a speedy trial violation is barred by res
judicata and by the rules governing postconviction relief, the trial court was correct in
overruling the motion. Neither the trial court nor this Court has jurisdiction to grant
the motion. See, e.g. State v. Bryant, 7th Dist. No. 10-MA-11, 2010-Ohio-4401.
Therefore, the trial court was correct in denying Appellant’s motion, and the judgment
of the trial court is affirmed.
Donofrio, J., concurs.
DeGenaro, J., concurs.