Criminal Appeal from Common Pleas Court, Case No. 95 CR 465.
For Plaintiff-Appellee: Attorney Paul J. Gains Prosecuting Attorney Attorney Ralph M. Rivera Assistant Prosecuting Attorney
For Defendant-Appellant: Andre Stores, Pro-se
Hon. Mary DeGenaro Hon. Gene Donofrio Hon. Cheryl L. Waite
(¶1} Defendant-Appellant, Andre E. Stores, appeals pro-se from the September 6, 2012, judgment of the Mahoning County Court of Common Pleas denying his August 27, 2012 motion for resentencing from his 1996 conviction. Stores' arguments are meritless. First, Stores' motion is properly considered a post-conviction petition, and was treated by the trial court as such. Second, Stores untimely filed his petition and gave no reason for the delay warranting dismissal on this basis. Finally, Stores' petition is additionally barred by the doctrine of res judicata; the argument regarding merger of the firearm specifications could have been raised in his direct appeal. Accordingly, the decision of the trial court is affirmed.
Facts and Procedural History
(¶2} On January 12, 1996, a jury found Stores guilty of complicity to commit aggravated burglary, complicity to commit aggravated robbery, and complicity to commit kidnapping, all with accompanying firearm specifications. Stores' conviction was affirmed, State v. Stores (Stores I), 7th Dist. Mahoning No. 96 CA 24, 1999 WL 167862 (Mar. 22, 1999), and his application for reopening was denied. State v. Stores (Stores II), 7th Dist. Mahoning No. 96 CA 24, 2001 WL 275198 (Mar. 16, 2001).
(¶3} On August 27, 2012, Stores filed a motion for resentencing pursuant to R.C. 2941.25 arguing that the record was unclear as to whether his sentence on the three firearm specifications was to be served concurrently or consecutively. He further argued that if the firearm specifications were ordered to be served consecutively then they should have been merged under Ohio law. The State moved to dismiss arguing that Stores' motion must be construed as a post-conviction petition, was untimely filed pursuant to R.C. 2953.21, and barred by res judicata. On September 6, 2012, the trial court dismissed Stores' motion finding that the same was untimely filed and his claims were barred by the doctrine of res judicata.
Untimely Post-Conviction Petition
(¶4} In his sole assignment of error, Stores asserts:
(¶5} "Did the Trial Court commit Plain Error pursuant to Crim.R. 52(b) by Sentencing Appellant to more than one term of Firearm specification that all arose out of the same incident."
(¶6} Where a criminal defendant, subsequent to his direct appeal, files a motion seeking vacation or correction of his sentence on the basis that his constitutional rights have been violated, such motion is construed as a petition for post-conviction relief as defined in R.C. 2953.21. State v. Reynolds, 79 Ohio St.3d 158, 679 N.E.2d 1131, syllabus (1997). Moreover, where a defendant appeals his conviction, the petition must be filed within one hundred eighty days from the date on which the trial transcript is filed in the court of appeals on the direct appeal. R.C. 2953.21(A)(2). Finally, a trial court's decision that a petition is untimely renders unnecessary any further inquiry into its merits. State v Bryan, 7th Dist. Mahoning No. 04 MA 109, 2005-Ohio-5054, ¶6.
(¶7} To be afforded delayed relief, the petitioner must demonstrate either that he was unavoidably prevented from discovering facts upon which the petition is based upon, or that the petition raises a new federal or state right recognized by the United States Supreme Court that applies retroactively to the petitioner. State v. Hill, 129 Ohio App.3d 658, 661, 718 N.E.2d 978 (1st Dist.). In addition to one of these two factors, the petitioner must show by clear and convincing evidence that, but for the ...