[Cite as State v. Selmon, 2016-Ohio-723.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Sheila G. Farmer, P. J.
Plaintiff-Appellee Hon. W. Scott Gwin, J.
Hon. John W. Wise, J.
-vs-
Case No. 15 CA 83
KENYAN SELMON
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 06 CR 248D
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 25, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
BAMBI COUCH PAGE KENYAN SELMON
PROSECUTING ATTORNEY PRO SE
DANIEL M. ROGERS Richland Correctional Institution
ASSISTANT PROSECUTOR Post Office Box 8107
38 South Park Street 1001 Olivesburg Road
Mansfield, Ohio 44902 Mansfield, Ohio 44905
Richland County, Case No. 15 CA 83 2
Wise, J.
{¶1} Defendant-Appellant Kenyan Selmon appeals the August 27, 2015,
decision of the Richland County Court of Common Pleas, dismissing his “Motion for
Revised Sentencing Entry”.
{¶2} Plaintiff-Appellee is the State of Ohio.
{¶3} This case comes to us on the accelerated calendar pursuant to App.R.
21(A).
STATEMENT OF THE FACTS AND CASE
{¶4} On April 24, 2006, following a jury trial, Appellant was convicted of two
counts of Intimidation of a Crime Victim, two counts of Retaliation Against a Crime Victim,
and Perjury, all third degree felonies. By Judgment Entry filed April 28, 2006, the trial
court sentenced Appellant to an aggregate prison term of twelve years.
{¶5} Appellant filed a direct appeal to this Court in 06 CA 52, wherein he raised
three (3) Assignments of Error. First, Appellant argued that the manifest weight of the
evidence did not support his conviction for Retaliation. Second, Appellant argued that the
trial court erred when it denied his Rule 29 Motion for Judgment of Acquittal. Third,
Appellant argued that the trial court erred when it denied his Motion for Mistrial. In the
06 CA 52 appeal, Appellant did not assign as error any possible defects in the Sentencing
Entry.
{¶6} By Opinion and Entry filed March 28, 2007, this Court overruled all three (3)
of Appellant's Assignments of Error in 06 CA 52 and affirmed Appellant's convictions and
sentence. On May 9, 2007, Appellant filed his Notice of Appeal of this Court's decision in
06 CA 52 with the Ohio Supreme Court. On August 10, 2007, the Ohio Supreme Court
Richland County, Case No. 15 CA 83 3
dismissed Appellant's appeal. State v. Selmon, 114 Ohio St.3d 1483, 2007-Ohio-3699,
870 N.E.2d 734.
{¶7} On January 23, 2008, Appellant filed with the trial court a "Motion to Vacate
Fines, Costs and Fees and/or Defer payment of Such Fines, Costs and Fees until
Defendant's Release From Custody".
{¶8} On March 21, 2008, the trial court denied Appellant's request to vacate his
fines, costs and fees, but stayed payment of those fines, costs and fees until his release
from custody.
{¶9} On January 8, 2009, Appellant filed a "Motion for Re-entry Court
Consideration" with the trial court.
{¶10} On February 4, 2009, the trial court overruled Appellant's "Motion for Re-
entry Court Consideration."
{¶11} Following the trial court's denial of his "Motion for Re-entry Court
Consideration," Appellant filed for a "Petition for Writ of Habeas Corpus" with the Court of
Appeals for the Northern District of Ohio. In his "Petition for Writ of Habeas Corpus,"
Appellant raised four (4) arguments, with his first two (2) arguments mirroring his first and
third Assignments of Error in 06 CA 52. First, Appellant argued that the evidence did not
support his conviction for Retaliation. Second, Appellant argued that the Trial Court erred
when it failed to grant a mistrial or provide a curative jury instruction. Third, Appellant
argued that his appellate counsel provided ineffective assistance when it failed to raise
trial counsel's ineffectiveness. Fourth, Appellant argued that his appellate counsel
provided ineffective assistance when it failed to raise an argument entitling Appellant to
a remand hearing.
Richland County, Case No. 15 CA 83 4
{¶12} On August 14, 2009, the Court of Appeals for the Northern District of Ohio
denied Appellant's "Petition for Writ of Habeas Corpus." Selmon v. Wilson, 2009 U.S.
Dist., LEXIS 71896 (N.D. Ohio Aug. 14, 2009).
{¶13} On June 30, 2010, Appellant filed a "Motion for Void Judgment" with the trial
court, arguing that the failure to specify the restitution amount rendered the April 28, 2006,
Sentencing Entry void.
{¶14} On September 9, 2010, the trial court dismissed Appellant's "Motion for
Void Judgment" as an untimely petition for post-conviction relief asserting claims barred
by res judicata.
{¶15} On May 17, 2011, Appellant filed his first "Motion for Judicial Release" with
the trial court.
{¶16} On June 23, 2011, the trial court overruled Appellant's "Motion for Judicial
Release" due to Appellant being ineligible for judicial release at that time.
{¶17} On May 25, 2012, Appellant filed a "Motion to Correct Void Sentence" and
a "Motion for Revised Sentencing Entry" with the trial court. In these Motions, Appellant
raised the same claims he raised in his "Motion for Void Judgment," namely that the failure
to specify the restitution amount rendered the April 28, 2006 Sentencing Entry void.
{¶18} On June 4, 2012, with his May 25th motions still pending in the trial court,
Appellant filed a "Motion to Dismiss Appeal" in 06 CA 52 with this Court. In his "Motion to
Dismiss Appeal," Appellant argued that the failure to specify the restitution amount
prevented the April 28, 2006, Sentencing Entry from being a final, appealable order.
Consequently, Appellant argued, this Court did not have jurisdiction to rule upon the
merits of his appeal in 06 CA 52.
Richland County, Case No. 15 CA 83 5
{¶19} On July 2, 2012, this Court denied Appellant's "Motion to Dismiss Appeal" in 06
CA 52.
{¶20} On September 18, 2012, the trial court overruled Appellant's May 25th
Motions, once again determining that the motions were untimely petitions for post-
conviction relief asserting claims barred by res judicata.
{¶21} On February 8, 2013, Appellant filed a second "Motion for Judicial Release"
with the trial court.
{¶22} On April 4, 2013, the trial court overruled Appellant's second "Motion for
Judicial Release."
{¶23} On November 12, 2013, Appellant filed a third motion for judicial release
with the trial court captioned as a "Response to Reconsider Motion for Relief,".
{¶24} On December 12, 2013, the trial court overruled Appellant's "Response to
Reconsider Motion for Relief.
{¶25} On June 22, 2015, Appellant filed a "Motion for Revised Sentencing Entry"
with the trial court, asserting the same claims he raised in his "Motion for Void Judgment"
and his May 25th Motions.
{¶26} On August 27, 2015, the trial court dismissed Appellant's "Motion for
Revised Sentencing Entry" as yet another untimely petition for post-conviction relief
asserting claims barred by res judicata.
{¶27} It is from this dismissal Appellant now appeals, raising the following
assignments of error:
Richland County, Case No. 15 CA 83 6
ASSIGNMENTS OF ERROR
{¶28} “I. THE TRIAL COURT ERRED WHEN IT DID NOT SPECIFY THE
AMOUNT OF RESTITUTION AT SENTENCING."
{¶29} "II. TRIAL COURT ABUSED ITS DISCRETION WHEN THEY
RECLASSIFIED DEFENDANT’S MOTION AS A POST CONVICTION RELIEF."
{¶30} “III. THE TRIAL COURT'S SENTENCING ENTRY IS NOT A FINAL
APPEALABLE ORDER AS DEFINED IN OHIO REVISED CODE 2505."
I., III.
{¶31} Because Appellant’s First and Third Assignments of Error both challenge
the Sentencing Entry from April 28, 2006, as not being a final appealable order, we shall
address said assignments of error together.
{¶32} Appellant argues that because the April 28, 2006, Sentencing Entry does
not specify the amount of restitution, such entry is not a final appealable order.
{¶33} Upon review, we find that this issue could have been raised on direct appeal
and is therefore barred under the doctrine of res judicata. “Under the doctrine of res
judicata, a final judgment of conviction bars the defendant from raising and litigating in
any proceeding, except an appeal from that judgment, any defense or any 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).
{¶34} As the issues raised by Appellant could have been raised in his direct
appeal, they are therefore barred by the doctrine of res judicata. We therefore find that
the trial court did not err in dismissing Appellant's motion.
Richland County, Case No. 15 CA 83 7
{¶35} Appellant’s First and Third Assignments of Error are overruled.
II.
{¶36} In his Second Assignment of Error, Appellant argues that the trial court
erred in classifying his Motion for Revised Sentencing as an untimely petition for post-
conviction relief. We disagree.
{¶37} “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 post[-]conviction
relief as defined in R.C. 2953.21.” State v. Reynolds, 79 Ohio St.3d 158 (1997), syllabus.
{¶38} In dismissing Appellant’s motion, the trial court began by stating that
Appellant had previously filed the same motion on May 25, 2012, which was overruled by
the trial court on September 18, 2012. Appellant did not appeal this denial.
{¶39} R.C. §2953.21(A)(2) governs the time within a petition for post-conviction
relief must be filed and provides as follows:
Except as otherwise provided in section 2953.23 of the Revised Code, a
petition under division (A)(1) of this section shall be filed no later than three
hundred sixty five 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
adjudication * * *.
{¶40} In this case, the trial transcript in Appellant's direct appeal was filed on
August 14, 2006. Appellant therefore had until February 12, 2007, within which to file his
petition for post-conviction relief. Appellant filed his petition on June 22, 2015. 2014.
Appellant’s petition is not within the three hundred sixty five (365) days after the date on
Richland County, Case No. 15 CA 83 8
which the trial transcript was filed with this Court in his direct appeal and thus not in
compliance with the time frame as specified in R.C. §2953 .21(A)(2).
{¶41} However, pursuant to R.C. §2953.23(A), the court may consider an untimely
petition for post-conviction relief:
(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 * * *
unless division (A)(1) or (2) of this section applies:
(1) Both of the following apply:
(a) Either the petitioner shows that the petitioner was unavoidably prevented
from the 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 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 that
petitioner was guilty of the offense of which the petitioner was convicted or,
if the claim challenges a sentence of death . . .
***
{¶42} In this case, Appellant makes no allegations in his motion as to any new
evidence or new facts. These matters were all contained in the trial record and thus,
Richland County, Case No. 15 CA 83 9
Appellant cannot show that he was unavoidably prevented from the discovery of the facts
upon which he relies on for relief or that this is newly-discovered evidence. Appellant does
not set forth any argument in his brief as to the delay in filing, why he meets the exception
requirements contained in R.C. §2953.23(A)(1) or (A)(2), or how the petition otherwise
complies with R.C. §2953.23(A)(1) or (A)(2). As such, Appellant has failed to meet his
burden under R.C. §2953.23(A)(1) or (A)(2) to file an untimely petition for post-conviction
relief.
{¶43} In addition, as set forth above, any errors as to these issues could have
been raised on direct appeal and are therefore barred under the doctrine of res judicata.
“Under the doctrine of res judicata, a final judgment of conviction bars the defendant from
raising and litigating in any proceeding, except an appeal from that judgment, any defense
or any 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). Conversely, issues properly raised
in a post-conviction petition are those that could not have been raised on direct appeal
because the evidence supporting the issues is outside the record. State v. Millanovich,
42 Ohio St.2d 46, 325 N.E.2d 540 (1975). Appellant's arguments do not raise any issues
that are dependent upon evidence outside the record.
{¶44} Upon review, we find that Appellant has not satisfied the R.C.
2953.23(A)(1)(a) requirement that he was unavoidably prevented from discovery of the
facts upon which he relies to present his claims for post-conviction relief. Appellant does
not offer any evidence which was not already in the record before the trial court. Further,
Richland County, Case No. 15 CA 83 10
the issues raised by Appellant could have been raised in his direct appeal and are
therefore res judicata.
{¶45} We find that the trial court did not err in denying Appellant's petition to
correct sentence. Appellant’s Second Assignment of Error is overruled.
{¶46} For the foregoing reasons, the judgment of the Court of Common Pleas of
Richland County, Ohio, is affirmed.
By: Wise, J.
Farmer, P. J., and
Gwin, J., concur.
JWW/d 0219