[Cite as State v. Palmer,

.] 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,

.] 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,

. 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,

.

{¶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 -2-

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,

. 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,

.

{¶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 -3-

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,

,

(1995). This includes alleged speedy trial errors.

State v. Ross, 7th Dist. No. 11-MA-32,

, citing State v. Green,

7th Dist. No. 10-MA-43,

.

{¶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,

,

(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), -4-

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,

; State v. Haschenburger,

7th Dist. No. 08-MA-223,

, ¶12. Since this is a jurisdictional matter, it

may be raised sua sponte by this Court. State v. Brothers, 7th Dist. Nos.

,

,

.

{¶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,

.

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.