[Cite as State v. Cox,

.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. John W. Wise, J. : Hon. Earle E. Wise, Jr., J. -vs- : : MICHAEL A. COX : Case No. CT2018-0075 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Muskingum County Common Pleas Court Case No. CR2018-0157

JUDGMENT: Affirmed

DATE OF JUDGMENT: February 11, 2019

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

D. MICHAEL HADDOX MICHAEL A. COX, pro se. 27th North Fifth Street Noble Correctional Institution Post Office Box 189 15708 McConnelsville Road Zanesville, OH 43702-0189 Caldwell, OH 43724 Muskingum County, Case No. CT2018-0075 2 Wise, Earle, J.

{¶ 1} Defendant-Appellant Michael A. Cox appeals the October 24, 2018

judgment of the Court of Common Pleas, Muskingum County which denied appellant's

motion for postconviction relief without a hearing. Plaintiff-Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On March 19, 2018, after waiving in writing prosecution by indictment,

appellant pled guilty to a bill of information containing one count of possession of

methamphetamine, a felony of the fifth degree. Appellant waived a pre-sentence

investigation and proceeded to sentencing on March 23, 2018.

{¶ 3} At the sentencing hearing, appellant and the state stipulated that the bill of

information contained a scrivener's error, and the drug listed therein in should have been

cocaine, not methamphetamine. There is no record of this hearing, however, appellant's

sentencing judgment entry indicates possession of cocaine and the judgment entry

appealed from in this matter mentions said stipulation. Appellant was sentenced to 8

months incarceration.

{¶ 4} Appellant did not file a direct appeal of his conviction. Instead, on October

1, 2018, appellant filed a motion for postconviction relief. Therein, appellant set forth one

claim, arguing the state could not cure a fatally defective bill of information as a "clerical

error." On October 25, 2018, the trial court denied appellant's petition without a hearing,

finding his petition was barred by the doctrine of res judicata.

{¶ 5} Appellant subsequently filed an appeal and the matter is now before this

court for consideration. He raises two assignments of error as follows: Muskingum County, Case No. CT2018-0075 3

I

{¶ 6} THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING POST-

CONVICTION RELIEF FOR AN UNLAWFUL AMENDMENT TO THE IDENTITY OF AN

OFFENSE

II

{¶ 7} THE TRIAL COURT LACKED JURISDICTION TO AMEND THE FATALLY

DEFECTIVE BILL OF INFORMATION AFTER ACCEPTING A GUILTY PLEA TO IT.

I, II

{¶ 8} Appellant's first and second assignments of error reach a common

resolution. We therefore address them together.

{¶ 9} In his first assignment of error, appellant argues the trial court erred in

denying his motion for postconviction relief because the bill of information speculated as

to what the drugs involved actually were, that the testimony of a lay person questioned

the identity of the offense, and that the amendment to the bill of information came after

appellant's plea of guilty. Appellant further alleges judicial bias. In his second assignment

of error, appellant argues the trial court lacked jurisdiction to amend the bill of information

as it was fatally defective. Each of appellant's complaints are res judicata.

{¶ 10} Although designed to address claimed constitutional violations, the post-

conviction relief process is a civil collateral attack on a criminal judgment, not an appeal

of that judgment. State v. Calhoun,

,

(1999); State

v. Steffen,

,

(1994). A petition for post-conviction

relief does not provide a petitioner a second opportunity to litigate his conviction, nor is Muskingum County, Case No. CT2018-0075 4 the petitioner automatically entitled to an evidentiary hearing on the petition. State v.

Lewis, 5th Dist. Stark No.2007CA00358,

, citing State v. Jackson,

,

(1980).

{¶ 11} 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). The presentation of

competent, relevant, and material evidence dehors the record may defeat the application

of res judicata. See State v. Smith,

, 17 OBR 219, 221,

, 1131–1132(1985), fn. 1.

{¶ 12} First, as for appellant's judicial bias claim, “Pursuant to R.C. 2701.03, only

the chief justice of the Supreme Court of Ohio or his or her designee has the authority to Muskingum County, Case No. CT2018-0075 5 determine a claim that a common pleas court judge is biased or prejudiced.” Stanley v.

Ohio State Univ. Med. Ctr., 10th Dist. No. 12AP-999,

. Accordingly,

we are without jurisdiction to consider appellant's claim and reject the same.

{¶ 13} As to appellant's remaining arguments, appellant could have raised each

argument in a direct appeal, but failed to do so. A petition for postconviction relief is not

a substitute for a direct appeal. State v. Holliday, 5th Dist. Delaware No.

¶ 17 citing State v. Thompson, 9th Dist. 11CAA110104,

. Because

appellant could have raised his arguments in a direct appeal, they are barred in this

proceeding by the doctrine of res judicata. The trial court therefore did not err in denying

appellant's petition for postconviction relief. Muskingum County, Case No. CT2018-0075 6 {¶ 14} The October 25, 2018 Judgment Entry of the Muskingum County Court of

Common Pleas is affirmed.

By Wise, Earle, J. Hoffman, P.J. and Wise, John, J. concur.

EEW/rw