[Cite as State v. Robinson, 2018-Ohio-856.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Patricia A. Delaney, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. 2017CA00117
CALVIN ROBINSON
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 1995-CR-0005B
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 5, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO, CALVIN M. ROBINSON, PRO SE
Prosecuting Attorney, #303-414
Stark County, Ohio Marion Correctional Institution
P.O. Box 57
By: KATHLEEN O. TATARSKY Marion, Ohio 43301
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South - Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2017CA00117 2
Hoffman, P.J.
{¶1} Defendant-appellant Calvin M. Robinson appeals the June 6, 2017
Judgment Entry entered by the Stark Count Court of Common Pleas, which denied his
Motion in Reconsideration to Correct Void Sentence. Plaintiff-appellee is the state of
Ohio.
STATEMENT OF THE CASE1
{¶2} On January 27, 1995, the Stark County Grand Jury indicted Appellant on
three counts of felonious assault, in violation of R.C. 2903.11; four counts of kidnapping,
in violation of R.C. 2905.11; one count of felonious sexual penetration, in violation of R.C.
2907.12; four counts of aggravated robbery, in violation of R.C. 2911.01; and one count
of aggravated burglary, in violation of R.C. 2911.11. All of the counts carried attendant
firearm specifications. The charges arose from the December 15, 1994 break-in of a
home in Massillon, Stark County, Ohio, and the subsequent robbery of the four
occupants, the shooting of two of the occupants, and the sexual assault of the female
occupant.
{¶3} On March 3, 1995, Appellant withdrew his former plea of not guilty and
entered a plea of guilty to the Indictment. Via Judgment Entry filed March 27, 1995, the
trial court sentenced Appellant to an aggregate prison term of twenty-three to fifty years.
Appellant did not appeal his convictions and sentence.
{¶4} Appellant filed a petition for post-conviction relief on September 23, 1996.
Therein, Appellant claimed he was entitled to “truth in sentencing.” Via Judgment Entry
1 A full rendition of the Statement of the Facts underlying Appellant’s original conviction
is not necessary for our disposition of this appeal.
Stark County, Case No. 2017CA00117 3
filed October 22, 1996, the trial court summarily overruled the petition, finding such was
untimely filed. Appellant did not appeal the trial court’s ruling.
{¶5} Subsequently, on August 18, 2003, Appellant filed a motion to merge allied
offenses of similar import, asserting he should have been charged with only one count
each of aggravated robbery, kidnapping, and felonious assault. The state filed a reply
and a motion to dismiss, arguing Appellant’s motion was, in essence, a petition for post-
conviction relief and, as such, was untimely filed. Via Judgment Entry filed September 4,
2003, the trial court denied Appellant’s motion, agreeing with the state the motion
constituted a petition for post-conviction relief pursuant to R.C. 2953.21, and was untimely
filed and barred by the doctrine of res judicata.
{¶6} Appellant filed an appeal to this Court in State v. Robinson, Stark App. No.
2003CA00333. This Court affirmed the trial court’s decision, likewise finding Appellant’s
petition was untimely and barred by the doctrine of res judicata. State v. Robinson, 5th
Dist. Stark No. 2003CA00333, 2004 -Ohio- 2650.
{¶7} On June 1, 2017, Appellant filed a Motion in Reconsideration to Correct
Void Sentence. The trial court summarily denied the motion via Judgment Entry filed June
6, 2017.
{¶8} It is from this judgment entry Appellant appeals, raising the following
assignments of error:
I. DEFENDANT-APPELLANT’S SENTENCE DOESN’T CONFORM
TO THE MANDATORY PROVISIONS IN R.C. 2941.25
Stark County, Case No. 2017CA00117 4
II. DEFENDANT-APPELLANT’S SENTENCE IS DECLARED “VOID”
BECAUSE THE SENTENCE DOESN’T CONFORM TO STATUTORY
REQUIREMENTS
III. DEFENDANT-APPELLANT’S SENTENCE DOESN’T’
CONFORM TO THE MANDATORY PROVISIONS IN R.C. 2941.25(A)
IV. DEFENDANT-APPELLANT’S SENTENCE IN 1995-CR-0005(B)
IS VIOLATING HIS 14TH AMENDMENT, SECTION 1 – DUE PROCESS
RIGHTS
V. DEFENDANT APPELLANT STATES THAT IN THE ORIGINAL
FILING OF THE “NOTICE OF APPEAL” OF THIS CASE AT BAR, THE
DEFENDANT-APPELLANT STATED THAT HE WANTED THIS “APPEAL”
TO BE HEARD UNDER THE DOCTRINES OF 2953.08 G(2)(B) FOR
SUCH SENTENCE IS CONTRARY TO LAW.
I, II, III, IV, V
{¶9} We address Appellant's assignments of error together as they are controlled
by the same legal principle.
{¶10} Although not captioned as such, Appellant’s motion was, and the trial court
properly treated it as, a petition for post-conviction relief. The caption of a pro se pleading
does not define the nature of the pleading. State v. Reynolds, 79 Ohio St.3d 158, 160,
679 N.E.2d 1131 (1997). Thus, if the pleading meets the definition of a petition for post-
conviction relief, it must be treated as such, regardless of the manner in which appellant
actually presents the motion to the court. State v. Green, 5th Dist. Knox No. 15–CA–13,
Stark County, Case No. 2017CA00117 5
2015–Ohio–4441, ¶ 10. A motion meets the definition of a motion for post-conviction relief
set forth in R.C. 2953.21(A)(1) if it is (1) filed subsequent to direct appeal; (2) claims a
denial of constitutional rights; (3) seeks to render the judgment void; and (4) asks for
vacation of the judgment and sentence. Reynolds, supra, 79 Ohio St.3d at 160.
{¶11} As a petition for post-conviction relief, Appellant’s motion was filed well
beyond the time limits set by R.C. 2953.21, which requires a petition for to be filed no
later than 365 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 365 days after the expiration of the
time for filing an appeal if no direct appeal is filed. Appellant was convicted and sentenced
in 1995; therefore, the petition was untimely.
{¶12} Appellant failed to present evidence to establish any of the exceptions to
R.C. 953.23(A)(1) apply to the untimely motion. Appellant did not demonstrate he was
unavoidably prevented from discovering facts to present his claim or that a new federal
or state right accrued retroactively to his claim. R.C. 2953.23(A)(1)(a). Nor did he
demonstrate by clear and convincing evidence that, but for a constitutional error, no
reasonable factfinder would have found him guilty of the offense as he pled guilty to the
charge. R.C. 2953.23(A)(1)(b).
{¶13} When a petition for post-conviction relief is filed untimely and does not meet
the requirements of R.C. 2953.23(A)(1), a trial court lacks jurisdiction to entertain the
merits of the petition. State v. Lynn, 5th Dist. Muskingum No. CT2007–0046, 2008–Ohio–
2149. Accordingly, the trial court did not err in denying Appellant's motion for relief from
the judgment.
Stark County, Case No. 2017CA00117 6
{¶14} Further, it is well-settled, “pursuant to res judicata, a defendant cannot raise
an issue in a [petition] for post-conviction relief if he or she could have raised the issue
on direct appeal.” State v. Elmore, 5th Dist. Licking No. 2005–CA–32, 2005–Ohio–5940
(Citation omitted.) Under the doctrine of res judicata, a final judgment of conviction bars
the defendant who was represented by counsel from raising and litigating in any
proceedings, except an appeal from that judgment, any defense or 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). 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. State v. Szefcyk, 77 Ohio St.3d 93, 671 N.E.2d
233 (1996).
{¶15} Appellant's arguments could have been raised on direct appeal; therefore,
are barred by res judicata. Accordingly, we find the trial court properly denied Appellant's
motion.
{¶16} Appellant's first, second, third, fourth, and fifth assignments of error are
overruled.
Stark County, Case No. 2017CA00117 7
{¶17} The judgment of the Stark County Court of Common Pleas is affirmed.
By: Hoffman, P.J.
Delaney, J. and
Wise, Earle, J. concur