[Cite as State v. Downey,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. John W. Wise, J. : -vs- : : Case No. 2013CA00157 JEREMY MATHEW DOWNEY : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Stark County Court of Common Pleas, Case No. 2009- CR-0857

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: October 21, 2013

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO JEREMY MATHEW DOWNEY PRO SE Prosecuting Attorney Inmate No. 603-159 BY: RONALD MARK CALDWELL Richland Correction Institution 110 Central Plaza S., Ste 510 Box 8107 Canton, OH 44702-1413 Mansfield, OH 44901-8107 [Cite as State v. Downey,

.]

Gwin, P.J.

{¶1} Appellant Jeremy Matthew Downey [“Downey”] appeals the July 15, 2013

Judgment Entry of the Stark County Court of Common Pleas denying his petition to

vacate or set aside his conviction or sentence.

Facts and Procedural History

{¶2} In 2009, Downey pled guilty to failure to stop after an accident [R.C.,

4549.02] and obstructing official business [R.C. 2921.31(A)] and was sentenced to

community control sanctions for a period of three years. Less than two months after the

imposition of the community control sanction, Downey's probation officer filed a motion

to revoke or modify his probation. The grounds alleged were Downey's failure to

complete his 100 hours of community service with a non-profit organization, as well as

his "failure to comply with an outpatient drug assessment, drug treatment plan, random

drug and alcohol monitoring, aftercare and use of all prescribed medications." After a

hearing, the trial court held that these grounds were not sufficient to revoke Downey’s

community control sanction, but modified the probation by imposing additional

conditions.

{¶3} Fifteen months later, Downey's probation officer once again filed a motion

to revoke or modify probation, alleging several grounds. Downey was driving a

motorcycle with a passenger and got into an accident, which resulted in Downey being

charged with a number of criminal offenses. At the time of the accident, Downey had

drugs and alcohol in his system, In addition, Downey apparently fled and did not keep in

touch with his probation officer. Downey stipulated to his violations, and the trial court

revoked the community control sanction and imposed an aggregate prison term of 22 Stark County, Case No. 2013CA00157 3

months. The trial court arrived at this term by imposing two 11-month prison terms

consecutively.

{¶4} Downey did not appeal either the revocation or the sentence. Instead, he

waited more than a year to file a "Motion to Run Cases Concurrent to Each Other." In

this motion, Downey argued that his two offenses "arose out of a single incident," and

thus multiple convictions and consecutive sentences were precluded by R.C., 2941.25.

{¶5} The prosecution's response argued that the two offenses — failure to stop

after an accident, and obstructing official business — were not allied offenses of similar

import under R.C. 2941.25 because they did not arise from the same criminal conduct.

As the prosecution's response asserted, "Defendant's actions in committing the crime

Failure to stop after an accident were knowing there was an accident and then leaving

the scene without reporting his information to a police authority. Defendant's action in

committing the Obstructing of Official [Business] were to attempt to hide his vehicle and

then lie to the police."

{¶6} The trial court overruled Downey's motion by judgment entry "[f]or the

reasons set forth in the State of Ohio's Response." Downey did not timely appeal this

ruling. Instead, he filed for a delayed appeal pursuant to App. R. 5(A) without explaining

the 305-day delay. This Court overruled Downey's motion by judgment entry.

{¶7} During the pendency of this delayed appeal, Downey filed a motion with

the trial court that is the subject of the instant appeal. In this motion, titled "Petition to

Vacate or Set Aside Judgment of Conviction or Sentence" and explicitly filed pursuant to

R.C. 2953.21[Petition for post conviction relief], Downey argued that he was denied

effective assistance of counsel. He specifically stated in the petition, "Counsel [’] s Stark County, Case No. 2013CA00157 4

failure to raise the issue of allied offenses prejudiced me and violated due process." In

his short statement of facts supporting this claim, Downey asserted, "The charges are

allied offences [sic], Counsel failed to raise the issue to the Court or me." The "brief” in

support of the petition shifted the argument to an evidentiary basis from his earlier R.C.

2941.25 [Allied offenses] argument:

But recently the Defendant descovered [sic] that "Obstructing Official

Business" must create a risk of physical harm to a person to constitute a

feloney [sic] of the 5th degree. If the charge indeed stemed [sic] from two acts

as represented in the Motion by the States Attorney, the risk of injury is not

there and the charge would have to be a misdemeanor of the second degree.

So in order for both charges to be felony 5's they must both use the element

of [physical harm to Michael Grimes as stated in the indictment and as a

result must indeed be allied offenses.

{¶8} By judgment Entry filed July 15, 2013, the trial court overruled Downey’s

petition finding,

The Court finds, as it has previously, that while it is possible to commit the

offenses with the same conduct, in the instant case, the offenses were not

committed by the same conduct. Rather, Defendant's actions in committing

the offense of Failure to Stop after an Accident involved knowing that there

was an accident and then leaving the scene without reporting his information

to a police authority. Defendant's actions in committing the offense of

Obstructing Official Business was his attempt to hide his vehicle and then lie Stark County, Case No. 2013CA00157 5

to the police. Therefore, the Court denied the Defendant's motion as the

offenses in the instant case are not allied offenses of similar import.

Pro se Appellants

{¶9} We understand that Downey has filed this appeal pro se. Nevertheless,

“like members of the bar, pro se litigants are required to comply with rules of practice

and procedure.” Hardy v. Belmont Correctional Inst., 10th Dist. No. 06AP-116, 2006-

Ohio-3316, ¶ 9. See, also, State v. Hall, 11th Dist. No. 2007-T-0022,

. We also understand that “an appellate court will ordinarily indulge a pro se litigant

where there is some semblance of compliance with the appellate rules.” State v.

Richard, 8th Dist. No. 86154,

, ¶4 (internal quotation omitted).

{¶10} In State v. Hooks,

,

,

(2001), the Supreme Court noted, “a reviewing court cannot add matter to the

record before it that was not a part of the trial court's proceedings, and then decide the

appeal on the basis of the new matter. See, State v. Ishmail,

,

(1978).” It is also a longstanding rule "that the record cannot be enlarged by

factual assertions in the brief." Dissolution of Doty v. Doty, 4th Dist.No. 411,

(Feb. 28, 1980), citing Scioto Bank v. Columbus Union Stock Yards,

,

(1963). New material and factual assertions contained in

any brief in this court may not be considered. See, North v. Beightler,

,

,

, quoting Dzina v. Celebrezze,

,

,

. Therefore, we have disregarded facts and

documents in Downey’s brief that are outside of the record. Stark County, Case No. 2013CA00157 6

{¶11} In the interests of justice, after reviewing Downey’s brief including his

contentions, we have interpreted Downey’s sole assignment of error in the following

manner:

{¶12} “I. THE TRIAL COURT ERRED IN DENYING APPELLANT’S POST-

CONVICTION PETITION.”

I.

{¶13} This case comes to us on the accelerated calendar. App. R. 11.1, which

governs accelerated calendar cases, provides, in pertinent part:

(E) Determination and judgment on appeal. The appeal will be

determined as provided by App. R. 11. 1. It shall be sufficient compliance with

App. R. 12(A) for the statement of the reason for the court's decision as to

each error to be in brief and conclusionary form. The decision may be by

judgment entry in which case it will not be published in any form.”

{¶14} One of the important purposes of the accelerated calendar is to enable an

appellate court to render a brief and conclusionary decision more quickly than in a case

on the regular calendar where the briefs, facts and legal issues are more complicated.

Crawford v. Eastland Shopping Mall Assn.,

,

(10th

Dist. 1983)

{¶15} This appeal shall be considered in accordance with the aforementioned

rules.

{¶16} With respect to the Downey’s July 12, 2013 Petition to Vacate or set aside

Judgment of Conviction or Sentence, we note the caption of a pro se pleading does not

definitively define the nature of the pleading. State v. Reynolds,

, Stark County, Case No. 2013CA00157 7

,

. In Reynolds, the Ohio Supreme Court found, despite

its caption, the appellant’s pleading met “the definition of a motion for post-conviction

relief set forth in R.C. 2953.21(A) (1), because it is a motion that was (1) filed

subsequent to Reynolds's direct appeal, (2) claimed a denial of constitutional rights, (3)

sought to render the judgment void, and (4) asked for vacation of the judgment and

sentence.” Pursuant to Reynolds, we find Downey’s Petition to Vacate or set aside

Judgment of Conviction or Sentence filed by him on July 12, 2013 is a petition for post

conviction relief as defined in R.C. 2953.21.

{¶17} Post conviction efforts to vacate a criminal conviction or sentence on

constitutional grounds are governed by R.C. 2953.21, which provides:

Any person who has been convicted of a criminal offense * * * and who

claims that there was such a denial or infringement of the person's rights as to

render the judgment void or voidable under the Ohio Constitution or the

Constitution of the United States, and any person who has been convicted of

a criminal offense that is a felony, who is an inmate, * * * may file a petition in

the court that imposed sentence, stating the grounds for relief relied upon,

and asking the court to vacate or set aside the judgment or sentence or to

grant other appropriate relief.

{¶18} Pursuant to R.C. 2953.21(A) (2), a petition for post-conviction 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 or, if the direct appeal involves a

sentence of death, the date on which the trial transcript is filed in the supreme Stark County, Case No. 2013CA00157 8

court. If no appeal is taken, the petition shall be filed no later than one

hundred eighty days after the expiration of the time for filing the appeal.

{¶19} Downey did not file an appeal from the original sentence imposed

September 23, 2009; nor did he file an appeal from the modification of sentence that

occurred on November 23, 2009. Downey did not file an appeal from the imposition of

the prison sentence, which occurred June 6, 2011 after he had stipulated that he had

violated the terms of his community control sanctions. Downey attempted to file a

delayed appeal in Fifth District Stark Case No. 2013CA00123 on June 24, 2013 over

two years after the consecutive sentences had been imposed by the trial court. We

denied Downey’s motion to file a delayed appeal by Judgment Entry filed July 17, 2013

finding that he had not established sufficient reason justifying the delay.

{¶20} Even before our decision in Case No. 2013CA00123, Downey filed his

Petition to Vacate or Set Aside Judgment of Conviction or Sentence in the trial court on

July 12, 2013. The trial court denied his petition on July 17, 2013. Downey’s Notice of

Appeal in this case was filed in the trial court on August 6, 2013, approximately 793

days after the trial court imposed the consecutive sentences in Downey’s case.

{¶21} Because Downey's petition was untimely filed, the trial court was required

to entertain the petition only if Downey could meet the requirements of R.C. 2953.23(A).

This statute provides, in pertinent part:

* * * [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 both of

the following apply: Stark County, Case No. 2013CA00157 9

(1) Either of the following applies:

(a) 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.

(b) 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.

(2) 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 at the

sentencing hearing, no reasonable factfinder would have found the petitioner

eligible for the death sentence.

1. Obstructing Official Business.

R.C. 2921.31, Obstructing Official Business provides,

(A) No person, without privilege to do so and with purpose to prevent,

obstruct, or delay the performance by a public official of any authorized act

within the public official's official capacity, shall do any act that hampers or

impedes a public official in the performance of the public official's lawful

duties. Stark County, Case No. 2013CA00157 10

(B) Whoever violates this section is guilty of obstructing official business.

Except as otherwise provided in this division, obstructing official business is a

misdemeanor of the second degree. If a violation of this section creates a risk

of physical harm to any person, obstructing official business is a felony of the

fifth degree.

{¶22} In the case at bar, Downey argues that the crimes as explained in the trial

court’s July 13, 2013 Judgment Entry are not sufficient to elevate the conviction to a

felony because there was no finding that his acts of hiding the vehicle and lying to the

officer created a “risk of physical harm.” Downey contends that he recently became

aware of these facts.

{¶23} In the case at bar, Downey became aware of the consecutive sentences in

2011. As previously noted, Downey waited over two years to attempt to file an appeal

from that decision.

{¶24} Downey became aware of the facts that he now contends justify his delay

when the trial court overruled his Motion to Run Cases Concurrent to Each other on

September 17, 2012. He failed to timely appeal that decision and has given no reason

for his failure to timely appeal the trial court’s September 17, 2012 decision.

{¶25} As such, appellant has failed to meet his burden under R.C. 2953.23(A)

(1) to file an untimely petition for post-conviction relief and the trial court therefore

lacked jurisdiction to entertain the petition. See State v. Kelly, 6th Dist. No. L-05-1237,

; State v. Smith, 9th Dist. No. 05CA008772,

; State v. Luther, 9th Dist. No. 05CA008770,

. Stark County, Case No. 2013CA00157 11

{¶26} We find that the trial court's denial is proper because the court was not

statutorily authorized to entertain the petition because of its untimeliness.

{¶27} Another proper basis upon which to deny a petition for post conviction

relief without holding an evidentiary hearing is res judicata. State v. Lentz,

,

(1994); State v. Phillips, 9th Dist. Summit No. 20692, 2002-

Ohio-823.

{¶28} Under the doctrine of res judicata, a final judgment of conviction bars a

convicted defendant who was represented by counsel from raising and litigating in any

proceeding, except an appeal from that judgment, any defense or any claimed lack of

due process that was raised or could have been raised by the defendant at the trial,

which resulted in that judgment of conviction, or on an appeal from that judgment. State

v. Szefcyk,

,

(1996), syllabus, approving and following

State v. Perry,

,

(1967), paragraph nine of the

syllabus. It is well settled that, "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. Reynolds,

,

(1997).

Accordingly, "[t]o survive preclusion by res judicata, a petitioner must produce new

evidence that would render the judgment void or voidable and must also show that he

could not have appealed the claim based upon information contained in the original

record." State v. Nemchik, 9th Dist. Lorain No. 98CA007279,

( Mar. 8,

2000); see, also, State v. Ferko, 9th Dist. Summit No. 20608,

(Oct. 3,

2001); State v. Phillips, supra. Stark County, Case No. 2013CA00157 12

{¶29} In the case at bar, the facts and information upon which Downey bases his

petition are contained in the trial court record. Therefore, the doctrine of res judicata

bars a defendant from asserting the “merger” issue in a post-judgment motion for

resentencing; i.e., the lack of merger must be contested in a direct appeal from the final

sentencing judgment. State v. Stalnacker, 11th Dist. Lake No. 2013-L-006, 2013-Ohio-

3479, ¶12; State v. Norris, 7th Dist. Monroe No. 11 MO 4, 2013–Ohio–866, ¶15; State v.

Garnett, 10th Dist. Franklin No. 12AP-594,

, ¶9; State v. Rutledge, 10th

Dist. Franklin No. 11AP–853, 2012–Ohio–2036, ¶ 13. Additionally,

[T]he failure to merge allied offenses at sentencing does not render a

sentence void. State v. Guevara, 6th Dist. No. L–12–1218, 2013–Ohio–728, ¶

8. See also State v. Greenberg, 10th Dist. No. 12AP–11, 2012–Ohio–3975, ¶

12, quoting Timmons [10th Dist. Franklin No. 11AP–895, 2012–Ohio–2079],

at ¶ 12 (“an allied offenses error renders the sentence voidable. ‘ Arguments

challenging the imposition of a sentence that is voidable are barred by the

doctrine of res judicata if not raised on direct appeal.’”).

Garnett,

, ¶10. Stark County, Case No. 2013CA00157 13

{¶30} Based upon the foregoing, Downey’s single assignment of error is

overruled, and the judgment of the Stark County Court of Common Pleas is hereby

affirmed.

By Gwin, P.J.,

Hoffman, J., and

Wise, J., concur

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. WILLIAM B. HOFFMAN

_________________________________ HON. JOHN W. WISE

WSG:clw 1009 [Cite as State v. Downey,

.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : JEREMY MATHEW DOWNEY : : : Defendant-Appellant : CASE NO. 2013CA00157

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Stark County Court of Common Pleas is hereby affirmed. Costs to

appellant.

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. WILLIAM B. HOFFMAN

_________________________________ HON. JOHN W. WISE