[Cite as State v. Houston, 2012-Ohio-3569.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97628
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
WILBERT HOUSTON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-303894
BEFORE: Jones, J., Boyle, P.J., and Sweeney, J.
RELEASED AND JOURNALIZED: August 9, 2012
FOR APPELLANT
Wilbert Houston, Pro se
Inmate No. 284-618
Marion Correctional Institution
P.O. Box 57
Marion, Ohio 43302
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Katherine Mullin
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:
{¶1} Defendant-appellant, Wilbert Houston, appeals the trial court’s denial of his
third postconviction petition. We affirm.
{¶2} In 1993, a jury convicted Houston of aggravated murder with a firearm
specification. The trial court sentenced Houston to life imprisonment for aggravated
murder consecutive to three years for the firearm specification. Houston appealed, and
his conviction was affirmed. State v. Houston, 8th Dist. No. 67049, 1995 WL 248520
(Apr. 27, 1995). In 1996, Houston filed his first petition for postconviction relief. The
trial court denied the petition on the grounds of res judicata and failure to submit
evidentiary documents containing sufficient operative facts demonstrating petitioner was
entitled to relief. Houston appealed, and the denial of postconviction relief was
affirmed. State v. Houston, 8th Dist. No. 72383, 1998 WL 83206 (Feb. 26, 1998).
{¶3} In 2010, Houston filed a second postconviction petition, arguing his
indictment failed to give him notice of the charges against him, he was denied a fair trial,
and he received ineffective assistance of trial counsel. The trial court denied his
petition, and this court affirmed. State v. Houston, 8th Dist. No. 95994,
2011-Ohio-2798.
{¶4} In 2011, Houston filed a motion titled “motion for immediate discharge from
custody Crim.R. 32(A)(1) and Sup.R. 39(B)(4),” in which he argued that his indictment
was defective, his sentencing journal entry was defective, his sentencing hearing was
delayed, and his trial counsel was ineffective. The trial court denied his motion. It is
from this decision that Houston now appeals, raising four assignments of error for our
review:
I. Appellant’s indictment is unconstitutionally vague, indefinite,
uncertain, or insufficient, as a matter of statutory law and fails to give him
sufficient notice of charge in order to prepare a defense.
II. The trial court’s failure to comply with Crim.R. 32(C) of the Ohio
Rules of Criminal Procedure violated his substantial rights in not providing
the time stamp to the clerk to indicate journalization.
III. Denial was improper because the petition was supported with
evidentiary material warranting a hearing.
IV. Denial was improper because the state failed to respond and the trial
court denying procedural due process when failing to allow state’s response
[sic] and issuing findings of fact and conclusions of law.
{¶5} Even though not titled as such, Houston’s motion for immediate discharge
was a postconviction petition. State v. Alexander, 8th Dist. No. 95995, 2011-Ohio-1380,
¶12, appeal not allowed by 128 Ohio St.3d 1559, 2011-Ohio-2905, 949 N.E.2d 45, citing
State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, 773 N.E.2d 522
([w]here a criminal defendant, subsequent to a 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.)
{¶6} As in his first and second postconviction petitions, Houston’s current claims
are barred by the doctrine of res judicata. The doctrine of res judicata excludes
subsequent actions or postconviction petitions involving the same legal theory of recovery
as the previous action or petition as well as claims that could have been presented in the
first action or postconviction petition. State v. Sevayega, 8th Dist. No. 92499,
2009-Ohio-5008, ¶ 19, citing State v. Sawyer, 8th Dist. No. 91496, 2009-Ohio-2391.
{¶7} All of Houston’s current claims have already been raised, or could have been
raised, on direct appeal or in his first petition for postconviction relief. They are
therefore now barred by res judicata. Houston, 2011-Ohio-2798, ¶ 11, citing State v.
Perry 10 Ohio St.2d 175, 226 N.E.2d 104 (1967). Moreover, his petition was untimely
filed. Houston, 2011-Ohio-2798, ¶ 15. Because Houston’s claims are barred by
principles of res judicata, the trial court properly denied his motion.
{¶8} The assignments of error are overruled.
{¶9} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
LARRY A. JONES, SR., JUDGE
MARY J. BOYLE, P.J., and
JAMES J. SWEENEY, J., CONCUR