[Cite as State v. Coleman,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2023-03-037

: OPINION - vs - 12/4/2023 :

PHILLIP COLEMAN III, :

Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR 2014 03 0530

Michael T. Gmoser, Butler County Prosecuting Attorney, and John Heinkel, Assistant Prosecuting Attorney, for appellee.

Phillip Coleman III, pro se.

M. POWELL, J.

{¶ 1} Appellant, Phillip Coleman, III, appeals a decision of the Butler County Court

of Common Pleas denying his untimely petition for postconviction relief.

{¶ 2} Appellant was indicted in 2014 on one count of murder with accompanying

firearm and repeat violent offender specifications and one count of having weapons while

under disability. Under the indictment, appellant was subject to prison terms of 15 years to Butler CA2023-03-037

life on the murder charge, three years on the firearm specification, up to ten years on the

repeat violent offender specification, and up to three years on the having weapons while

under disability charge. Following plea negotiations, appellant entered a guilty plea to a

reduced charge of involuntary manslaughter with an accompanying firearm specification.

On August 13, 2014, the trial court sentenced appellant to 14 years in prison, consisting of

11 years for involuntary manslaughter and a consecutive three-year prison term for the

firearm specification. Appellant did not file a direct appeal.

{¶ 3} On June 6, 2022, appellant filed a pro se petition for postconviction relief

("PPCR"), arguing that his constitutional rights were violated because the indictment

pursuant to which he was charged was not signed by the grand jury foreperson and his trial

counsel was ineffective for failing to challenge the defective indictment. The state moved

to dismiss the PPCR. Appellant filed a "Motion to Rebuttal" in opposition to the state's

motion to dismiss, reiterating his arguments. The motion also asserted that appellant was

not given a preliminary hearing "due to supposedly being indicted."

{¶ 4} On March 20, 2023, the trial court denied appellant's PPCR without an

evidentiary hearing. The trial court found that trial counsel was not ineffective by failing to

challenge the unsigned indictment because the state could have sought an amended

indictment; furthermore, as a result of the negotiated plea deal, appellant was sentenced to

a 14-year prison term instead of the potential prison term of up to 31 years to life appellant

faced under the indictment. The trial court also found that the PPCR was untimely and

barred by res judicata. Finally, the trial court found that appellant was not entitled to an

evidentiary hearing on his PPCR because the petition did not present substantive grounds

for relief.

{¶ 5} Appellant now appeals, raising three assignments of error.

{¶ 6} Assignment of Error No. 1:

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{¶ 7} DEFENDANT'S OH. CONST. ARTICLE I SECTION 10 HAS BEEN

VIOLATED. UNITED STATES CONSTITUTION FIFTH AMENDMENT RIGHT HAS BEEN

VIOLATED. CRIM.R. 5, CRIM.R. 6, CRIM.R. 7, AND R.C. 2923.20 HAVE BEEN

VIOLATED FOR DEFENDANT IS BEING ILLEGALLY HELD IN PRISON FOR AN

INDICTMENT NOT LAWFULLY FOUND OR RETURNED BY THE GRAND JURY NOR

WAS HE GIVEN A PRELIMINARY HEARING.

{¶ 8} Appellant argues that his constitutional rights were violated and the trial court

lacked jurisdiction because he was not afforded a preliminary hearing in violation of Crim.R.

5 and his indictment was not signed by the grand jury foreperson in violation of Crim.R. 6

and R.C. 2939.20.

Appellant's Preliminary Hearing Arguments

{¶ 9} Appellant did not raise the preliminary hearing issue in his PPCR. It is "well-

settled that issues not raised in the trial court may not be raised for the first time on appeal."

State v. Murray, 12th Dist. Brown No. CA2015-12-029,

. Even

if, arguendo, the issue was raised in appellant's "rebuttal motion," his constitutional rights

were not violated by the lack of a preliminary hearing.

{¶ 10} "The only purpose of a preliminary hearing is to determine whether sufficient

facts exist to warrant the court in binding the accused over to the grand jury and to set bail,

and once an indictment has been returned by the grand jury, a preliminary hearing before

a magistrate is no longer necessary." State v. Morris,

(1975).

Likewise, while Crim.R. 5(B) provides that a defendant is entitled to a preliminary hearing

in a felony case, the rule specifically states that the "preliminary hearing shall not be held *

* * if the defendant is indicted." "An accused has no constitutional right to a preliminary

hearing when an indictment is returned." State ex rel. Haynes v. Powers,

(1969).

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Failure of the Grand Jury Foreperson to Sign the Indictment

{¶ 11} The grand jury foreperson is required to sign all indictments under Crim.R.

6(C) and (F) and R.C. 2939.20. It is undisputed that appellant's indictment was not signed

by the grand jury foreperson. It is well established, however, that "a grand jury foreperson's

failure to sign an indictment does not deprive the trial court of jurisdiction or otherwise entitle

a criminal defendant convicted and sentenced on the indictment to a writ of habeas corpus."

VanBuskirk v. Wingard,

, 660,

. Rather, the lack of the

grand jury foreperson's signature on the indictment relates to the indictment's sufficiency

and should be raised on direct appeal. Kroger v. Engle,

(1978).

Additionally, appellant waived any defect in the indictment by pleading guilty. State v.

Barton,

,

, ¶ 73; State v. Oliver, 12th Dist. Clermont No.

CA2020-07-041,

.

{¶ 12} Appellant's first assignment of error is overruled.

{¶ 13} Assignment of Error No. 2:

{¶ 14} DEFENDANT'S UNITED STATES CONSTITUTION SIXTH AMENDMENT

RIGHT WAS VIOLATED FOR COUNSEL FAILED TO OBJECT OR CHALLENGE

DEFECTIVE INDICTMENT, AND DID NOT FILE MOTION TO DISMISS DUE TO

DEFENDANT NOT HAVING A PRELIMINARY HEARING OR VALID INDICTMENT, AND

WITHHELD LEGAL DOCUMENTS.

{¶ 15} Appellant argues that his trial counsel was ineffective because he failed to

provide him with a copy of the indictment, challenge the unsigned indictment, and move to

dismiss the charges against him based upon the defective indictment. Appellant also raises

the failure to afford him a preliminary hearing.

{¶ 16} "To prevail on an ineffective assistance of counsel claim in the context of a

guilty plea, the defendant must show that (1) his counsel's performance was deficient and

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(2) there is a reasonable probability that, but for counsel's errors, the defendant would not

have pled guilty." State v. Arledge, 12th Dist. Clinton No. CA2018-12-024,

, citing State v. Bird,

,

. The failure to make an

adequate showing on either prong is fatal to a claim of ineffective assistance of counsel.

State v. Leonicio, 12th Dist. Butler No. CA2022-08-077,

, ¶ 24.

{¶ 17} Appellant's PPCR did not claim ineffective assistance of counsel based upon

trial counsel's failure to provide him with a copy of the indictment and failure to seek

dismissal of the charges due to the defective indictment and lack of a preliminary hearing.

Because issues not raised in the trial court may not be raised for the first time on appeal,

we will not consider appellant's arguments. Murray,

; State v.

Ludwick, 4th Dist. Highland No. 22CA9,

.

{¶ 18} Trial counsel's failure to challenge the unsigned indictment did not constitute

ineffective assistance of counsel. Having rejected appellant's argument on the issue of the

unsigned indictment in the first assignment of error, his claim of ineffective assistance of

counsel based upon the same ground is likewise without merit. See State v. Dahlberg, 11th

Dist. Ashtabula No. 2020-A-0030,

; State v. Henderson,

(1988) ("The grounds which underlie each of these instances have already been

separately addressed and found to be without merit. Accordingly, we need not address the

counsel-performance component of these grounds"). Additionally, even if trial counsel had

challenged the indictment and it had been dismissed as defective, it would not have

prevented the state from re-presenting the case to the grand jury and obtaining another

indictment.

{¶ 19} Furthermore, appellant is barred by res judicata from raising trial counsel's

failure to challenge the unsigned indictment. Under res judicata, a final judgment of

conviction bars a convicted defendant who was represented by counsel from raising and

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litigating in any proceeding except an appeal from 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 or conviction, or on an appeal from that judgment. State v.

Wagers, 12th Dist. Preble No. CA2011-08-007,

, ¶ 10, citing State v.

Szefcyk,

,

, syllabus.

{¶ 20} The presentation of competent, relevant, and material evidence outside the

record may defeat the application of res judicata. State v. Barron, 12th Dist. Warren No.

CA2022-09-059,

. "With the exception of certain ineffective

assistance of counsel claims, the evidence relied upon must not be evidence that was in

existence or available for use at the time of trial or direct appeal."

"Post-conviction relief

is available only for errors based upon facts and evidence outside the record. Errors and

deficiencies in an indictment are not outside the record; therefore they can only be attacked

on direct appeal." State v. Peterson, 8th Dist. Cuyahoga No. 90263,

.

Because appellant failed to raise the defective indictment issue on direct appeal, he is

barred by res judicata from raising trial counsel's failure to challenge the defective

indictment now.

{¶ 21} Appellant's second assignment of error is overruled.

{¶ 22} Assignment of Error No. 3:

{¶ 23} DEFENDANT'S RIGHT TO PCR WAS VIOLATED. TRIAL COURT ERRED

IN NOT GRANTING DEFENDANT'S POST CONVICTION HEARING AND VIOLATED

RULES SET FORTH IN R.C. 2953.23.

{¶ 24} Appellant argues that the trial court erred by denying his PPCR without a

hearing. Appellant asserts that he was unavoidably prevented from discovering the

defective indictment because trial counsel failed to provide him with a copy of the unsigned

indictment. Appellant twice sought a copy of his indictment, first in 2020, and then,

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successfully, in May 2022.

{¶ 25} "[A] trial court properly denies a defendant's petition for postconviction relief

without holding an evidentiary hearing where the petition, the supporting affidavits, the

documentary evidence, the files, and the records do not demonstrate that petitioner set forth

sufficient operative facts to establish substantive grounds for relief." State v. Calhoun,

,

, paragraph two of the syllabus. A trial court's decision to

summarily deny a postconviction petition without holding an evidentiary hearing will not be

reversed absent an abuse of discretion. State v. Simon, 12th Dist. Butler No. CA2014-12-

255,

, ¶ 11.

{¶ 26} Because appellant did not file a direct appeal, he was required to file his PPCR

within a specific time limit after the expiration of the time for filing the appeal. Regardless

of whether the former 180-day time limit or the current 365-day time limit applied, see R.C.

2953.21(A)(2), appellant's June 6, 2022 PPCR was clearly untimely as it was filed over

seven years after he entered his guilty plea, was convicted, and then sentenced in 2014.

{¶ 27} Under such circumstances, R.C. 2953.23(A)(1)(a) permits the trial court to

entertain an untimely petition only if the petitioner demonstrates that either (1) he was

unavoidably prevented from discovering the facts necessary to assert his claim for relief, or

(2) he is invoking a new federal or state right recognized by the United States Supreme

Court that is retroactively applicable to persons similarly situated. State v. Kent, 12th Dist.

Preble No. CA2013-05-003,

. If the petitioner satisfies one of these

threshold requirements, R.C. 2953.23(A)(1)(b) then requires the petitioner to offer clear and

convincing evidence demonstrating that, but for the constitutional error at trial, no

reasonable factfinder would have found him guilty of the offenses of which he was

convicted. State v. McKelton, 12th Dist. Butler No. CA2015-10-183,

.

"A defendant's failure to either timely file a petition for post-conviction relief or meet his

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burden under R.C. 2953.23(A)(1) deprives a trial court of jurisdiction to entertain the

petition." State v. Lawwill, 12th Dist. Warren No. CA2017-03-027,

.

{¶ 28} Contrary to his assertion, appellant was not unavoidably prevented from

discovering that the indictment was unsigned. At arraignment, Crim.R. 10(A) requires that

a defendant be given a copy of the indictment or shall acknowledge receipt thereof, before

being called upon to plead. Moreover, the indictment was a part of the record and its lack

of the foreperson's signature was discoverable well within the proscribed time for filing his

PPCR. State v. Wilson, 2d Dist. Montgomery No. 21738,

. Nothing

prevented appellant from obtaining a copy of his indictment well within the proscribed time

for filing a timely PPCR. Additionally, appellant fails to assert a claim based on the

recognition by the United States Supreme Court of a new federal or state right that applies

retroactively to a person in his situation.

{¶ 29} Furthermore, appellant cannot satisfy the requirement of R.C.

2953.23(A)(1)(b) that "but for constitutional error at trial, no reasonable fact finder would

have found the petitioner guilty of the offense for which the petitioner was convicted[.]"

Appellant was convicted pursuant to his guilty plea, not by reason of trial. State v. Liles, 3d

Dist. Allen No. 1-21-60,

; State v. Halliwell,

(8th Dist. 1999). Finally, for the reasons set forth under the second assignment of error,

appellant's PPCR is barred by res judicata.

{¶ 30} The trial court, therefore, did not err in denying appellant's untimely PPCR

without an evidentiary hearing. Appellant's third assignment of error is overruled.

{¶ 31} Judgment affirmed.

S. POWELL, P.J., and BYRNE, J., concur.

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