CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR07-06-0912
Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government Services Center, for plaintiff-appellee.
David A. Garcia, #A568-239, Chillicothe Correctional Institution, defendant-appellant, pro se.
(¶ 1} Defendant-appellant, David A. Garcia, appeals the decision of the Butler County Court of Common Pleas denying his successive petition for postconviction relief.
(¶ 2} On December 13, 2007, Garcia was convicted of possession of marijuana, a second-degree felony, and trafficking in marijuana, a first-degree felony. Garcia was sentenced to serve eight years in prison for the possession conviction, to be served concurrently with a ten-year prison sentence for the trafficking conviction. Garcia appealed his convictions and sentence. This court overruled his assignments of error on June 8, 2009, citing the appeals of Garcia's codefendants wherein the validity of the search warrant was affirmed. However, the case was remanded to the trial court to merge the trafficking and possession convictions as allied offenses. State v. Garcia, 12th Dist. Butler No. CA2008-01-015 (June 8, 2009) (Accelerated Calendar Judgment Entry). Garcia was subsequently resentenced on July 2, 2009.
(¶ 3} While Garcia's direct appeal was pending, he filed a petition for postconviction relief on May 14, 2008. The trial court denied Garcia's petition, and this court dismissed the subsequent appeal because it was not filed in a timely manner. State v. Garcia, 12th Dist. Butler No. CA2008-09-236 (Feb. 24, 2009) (Dismissal Entry).
(¶ 4} On December 4, 2008, Garcia filed a successive petition for postconviction relief. The trial court again denied Garcia's petition. On appeal, this court overruled Garcia's assignment of error and affirmed the trial court's denial of the successive petition for postconviction relief as untimely. State v. Garcia, 12th Dist. Butler No. CA2009-01-021 (Oct. 13, 2009) (Accelerated Calendar Judgment Entry).
(¶ 5} While that appeal was pending, Garcia filed a writ of procedendo on March 13, 2009, demanding an order for the lower court to issue findings of fact and conclusions of law with regard to his first petition for postconviction relief. This court dismissed the writ as moot because the lower court had filed findings of fact and conclusions of law on April 14, 2009. Garcia v. Butler Cty. Ct. of Common Pleas, 12th Dist. Butler No. CA2009-03-096 (May 12, 2009) (Dismissal Entry). Those findings of fact and conclusions of law stated that:
The Petitioner could have raised all of the claims he presents in his post-conviction petition on direct appeal, and he has presented no material, relevant nor competent evidence outside the record, res judicata bars his claims. Whether it be a claim of ineffective assistance of counsel or the legality of the search, these issues could have been asserted in the proper court at the appropriate time. A Motion to Suppress was heard in this matter and was denied by the reviewing court.
(¶ 6} Garcia then appealed the trial court's findings of fact and conclusions of law denying his petition for postconviction relief. This court overruled his assignment of error, holding that "his claim of ineffective assistance of counsel could have been raised upon direct appeal, and therefore, is now barred by the doctrine of res judicata." State v. Garcia, 12th Dist. Butler No. CA2009-04-118 (Nov. 23, 2009) (Accelerated Calendar Judgment Entry).
(¶ 7} On December 20, 2012, Garcia filed a second successive petition for postconviction relief. He argued that new evidence in the form of interrogatories received from his federal civil case prove that his trial counsel failed to adequately attack the validity of the search warrant in the motion to suppress hearing. The trial court denied Garcia's petition, finding that "[a] review of the record and R.C. 2953.21(A)(2) indicated that [Garcia's] Petition is untimely. Additionally, [Garcia] has failed to establish that an exception listed in R.C. 2953.23(A) grants this Court jurisdiction to consider his untimely Petition."
(¶ 8} Garcia now appeals from that decision, raising a single assignment of error ...