[Cite as State v. Willingham, 2017-Ohio-8345.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-17-1042
Appellee Trial Court No. CR0201402019
v.
Dajuan Willingham DECISION AND JUDGMENT
Appellant Decided: October 27, 2017
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Claudia A. Ford, Assistant Prosecuting Attorney, for appellee.
Dajuan Willingham, pro se.
*****
SINGER, J.
{¶ 1} This accelerated appeal is from a judgment of the Lucas County Court of
Common Pleas. For the reasons that follow, we affirm.
{¶ 2} In June 2014, appellant, Dajuan Willingham, was indicted on ten counts of
aggravated robbery with gun specifications, three counts of kidnapping, and two counts
of felonious assault where one count carried a gun specification. Appellant pled guilty to
six counts of aggravated robbery and two gun specifications and, on February 19, 2015,
the court sentenced him to an aggregate prison term of 30 years.
{¶ 3} Appellant made a direct appeal of the February 2015 judgment, setting forth
these three assignments of error: (1) his plea was made unknowingly and involuntarily
under Crim.R. 11(C) because the trial court inferred community control was available
when it was not; (2) the trial court failed to find consecutive sentences were necessary to
protect the public or to punish the offender, as required by R.C. 2929.14(C)(4); and,
(3) the trial court erred in imposing costs of confinement and of court-appointed counsel
without clear and convincing evidence appellant had the ability to pay.
{¶ 4} Appellant did not raise the issue of ineffective assistance of counsel in his
direct appeal, and we affirmed his convictions and the imposed, aggregate sentence. See
State v. Willingham, 6th Dist. Lucas No. L-15-1045, 2016 Ohio App. LEXIS 2937
(Mar. 11, 2016).
{¶ 5} On October 14, 2015, however, appellant filed a pro se petition for
postconviction relief in the trial court claiming he received ineffective assistance of trial
counsel. The trial court dismissed the petition on October 20, 2015.
{¶ 6} We affirmed that judgment on August 12, 2016. See State v. Willingham,
6th Dist. Lucas No. L-15-1301, 2016-Ohio-5359. In our decision, we addressed
appellant’s ineffective-assistance arguments, which were summarized as follows:
2.
[A]ppellant claimed that “one of the robberies involved fingerprints
that were removed from a counter that were in no way related to
[appellant]. [Appellant] was falsely and/or wrongfully charged with the
robbery.” Additionally, appellant contended that trial counsel lied to him
by telling him that the trial judge promised counsel that appellant would not
receive a prison sentence in excess of 20 years. Moreover, appellant
asserted that counsel misled him by presenting certain redacted discovery
materials and explaining that they implicated appellant in the robberies at
issue in this case when in fact the unredacted versions do not implicate him.
Finally, appellant argued that his trial counsel failed to ensure that his
speedy trial rights were honored, noting that three months and eight days
passed between his arrest and his eventual guilty plea.
See Willingham, 6th Dist. Lucas No. L-15-1301, 2016-Ohio-5359, at ¶ 4.
{¶ 7} On November 29, 2016, appellant filed in the trial court a “Motion to
Correct Void Judgment Criminal R. 32,” in which he again claimed his convictions were
void because his trial counsel was ineffective. The state asserted three arguments in
response: (1) appellant’s challenge was untimely, (2) appellant did not offer evidentiary
proof of a deprivation of constitutional rights, and (3) the claim was barred by res
judicata. The trial court overruled appellant’s motion on January 27, 2017, construing
appellant’s motion as a petition for postconviction relief and finding it was filed
untimely.
3.
{¶ 8} Appellant now appeals from that judgment setting forth the following
assignment of error:
1. COUNSEL WAS INEFFECTIVE FOR NOT INVESTIGATING
THE PLEA OFFER BY THE STATE.
{¶ 9} In this assigned error appellant yet again raises and appeals the issue of
ineffective assistance of his trial counsel.
{¶ 10} “The denial of a postconviction petition will not be overturned on appeal
absent a finding of abuse of discretion.” State v. Rodriguez, 6th Dist. Wood No.
WD-14-075, 2015-Ohio-562, ¶ 7. An abuse of discretion means more than an error of
law or judgment, instead it requires a finding that the trial court’s decision was
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,
219, 450 N.E.2d 1140 (1983).
{¶ 11} R.C. 2953.21(A)(2) requires that a petition for postconviction relief “shall
be filed no later than one hundred eighty 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.” See State v. Brooks, 6th Dist. Lucas Nos. L-12-1348, L-12-1349, 2014-
Ohio-427, ¶ 11.
{¶ 12} Here, appellant filed his petition for postconviction relief after the statutory
180-day period set forth in R.C. 2953.21(A)(2). More specifically, appellant’s trial
transcripts and direct appeal were filed in February 2015, and this petition was not filed
4.
until November 29, 2016. Thus appellant must meet the specific requirements set forth in
R.C. 2953.23 for us to consider his request for relief.
{¶ 13} 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:
(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 or,
if the claim challenges a sentence of death that, but for constitutional error
5.
at the sentencing hearing, no reasonable factfinder would have found the
petitioner eligible for the death sentence.
(2) The petitioner was convicted of a felony, the petitioner is an
inmate for whom DNA testing was performed under sections 2953.71 to
2953.81 of the Revised Code or under section 2953.82 of the Revised Code
and analyzed in the context of and upon consideration of all available
admissible evidence related to the inmate’s case as described in division
(D) of section 2953.74 of the Revised Code, and the results of the DNA
testing establish, by clear and convincing evidence, actual innocence of that
felony offense or, if the person was sentenced to death, establish, by clear
and convincing evidence, actual innocence of the aggravating circumstance
or circumstances the person was found guilty of committing and that is or
are the basis of that sentence of death.
R.C. 2953.23(A)(1)-(2); State v. Ayers, 6th Dist. Erie No. E-07-072, 2009-Ohio-393,
¶ 15.
{¶ 14} We first note this appeal does not involve a claim of actual innocence based
on DNA testing. See R.C. 2953.23(A)(2). Further, appellant has failed to establish he
was either (a) unavoidably prevented from discovery of facts on which he relies to
present his claim for relief or that a new right applies retroactively to him, and that (b) by
clear and convincing evidence, but for the constitutional error at trial, no reasonable
factfinder would have found him guilty. See R.C. 2953.23(A)(1). Appellant has merely
6.
repeated the same arguments he asserted in his last postconviction relief petition. Thus,
we find the court lacked jurisdiction to consider appellant’s successive petition for
postconviction relief. See Ayers at ¶ 16; see also Rodriguez, 6th Dist. Wood No.
WD-14-075, 2015-Ohio-562, at ¶ 6.
{¶ 15} Moreover, “res judicata applies to proceedings involving postconviction
relief.” See State v. Burton, 4th Dist. Gallia No. 13CA12, 2014-Ohio-2549, ¶ 17, citing
State v. Szefcyk, 77 Ohio St.3d 93, 95, 671 N.E.2d 233 (1996). Under res judicata, a final
judgment of conviction bars the convicted who was represented by counsel from raising
and litigating in any proceeding except an appeal from that judgment, any defense or
claimed lack of due process that was raised or could have been raised at trial, which
resulted in that judgment of conviction, or on an appeal from that judgment. See Burton
at ¶ 18 (barring ineffective claim in postconviction petition under res judicata); Brooks,
6th Dist. Lucas Nos. L-12- 1348, L-12-1349, 2014-Ohio-427, at ¶ 14 (applying res
judicata to a successive petition).
{¶ 16} Accordingly, because this successive petition for postconviction relief is
untimely and not brought as an exception under R.C. 2953.23(A), we find the trial court
lacked jurisdiction to consider the petition and res judicata bars appellant from
relitigating his ineffective assistance claim. The trial court did not abuse its discretion,
and appellant’s sole assigned error is found not well-taken.
7.
Conclusion
{¶ 17} The judgment of the Lucas County Court of Common Pleas is affirmed.
The costs of this appeal are assessed to appellant pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Christine E. Mayle, J. JUDGE
CONCUR.
_______________________________
JUDGE
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