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State v. Carter

Court of Appeals of Ohio, Third District, Allen

June 19, 2017

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
DAMION LAMARR CARTER, DEFENDANT-APPELLANT.

         Appeal from Allen County Common Pleas Court Trial Court No. CR96 01 0007

          Damion Lamarr Carter, Appellant

          Jana E. Emerick for Appellee

          OPINION

          SHAW, J.

         {¶1} Defendant-appellant, Damion Lamarr Carter ("Carter"), brings this appeal from the February 8, 2017, judgment of the Allen County Common Pleas Court denying Carter's petition for post-conviction relief related to a 1996 murder conviction. On appeal, Carter argues, inter alia, that his guilty plea was not knowingly, intelligently, and voluntarily entered, that he received ineffective assistance of counsel during his original court proceedings, and that the trial court erred when it failed to hold an evidentiary hearing pursuant to R.C. 2945.71.

         Procedural History

         {¶2} On January 11, 1996, Carter was indicted for Aggravated Murder in violation of R.C. 2903.01(B) with a firearm specification. On March 8, 1996, Carter pled guilty to the amended charge of Murder in violation of R.C. 2903.02(A) with a firearm specification. Cater was sentenced to serve 15 years to life on the Murder conviction and a mandatory 3-year prison term on the firearm specification. The prison terms were ordered to be served consecutive to each other for an aggregate prison term of 18 years to life. Carter did not file a direct appeal of his conviction or sentence to this court.

         {¶3} Since his initial sentencing, Carter has filed multiple petitions for postconviction relief and multiple motions to withdraw his guilty plea. First, in 1999 Carter filed a "Petition to Vacate or Set Aside Sentence." In the petition, Carter argued that he received ineffective assistance of counsel at the trial court level. The trial court denied Carter's petition, considering it both as a post-conviction petition and as a motion to withdraw his guilty plea. Carter filed for reconsideration with the trial court, which was denied, then he filed an untimely appeal to this Court, which was dismissed.

         {¶4} In October of 2007, Carter filed another petition for post-conviction relief. The trial court found that the petition was untimely and noted that it could dismiss the petition; however, the trial court also found that Carter's arguments were barred by res judicata. The trial court thus denied Carter's petition.

         {¶5} In September of 2012, Carter filed a motion to withdraw his guilty plea arguing, inter alia, that his right to a speedy trial had been violated. Carter's motion was denied, with the trial court finding that Carter's plea was knowingly and voluntarily entered. Carter appealed to this Court in State v. Carter, 3d Dist. Allen No. 1-12-43 (Mar. 11, 2013), and we affirmed the trial court's denial of Carter's motion to withdraw his guilty plea.

         {¶6} Carter then filed another motion to withdraw his guilty plea in August of 2013, arguing, inter alia, that his plea was not knowing, voluntary, and intelligent due to ineffective assistance of counsel. That motion was denied by the trial court as having no merit even if it was not barred by res judicata. Carter appealed to this Court and this Court dismissed the appeal.

         {¶7} In October of 2013, Carter filed a third petition for post-conviction relief. The trial court again denied Carter's petition and he appealed to this Court. We again dismissed Carter's petition finding that "[t]he trial court and this Court on appeal have already determined that, for numerous reasons, there is no merit to Appellant's request for post-conviction relief." State v. Carter, 3d Dist. Allen No. 1-13-57 (Nov. 19, 2013).

         {¶8} On February 6, 2017, Carter filed yet another petition for post-conviction relief. The trial court denied Carter's motion, providing a thorough explanation that Carter's petition was untimely by well over a decade and that he failed to demonstrate any exceptions allowing filing outside of the 365-day time limit.[1] The trial court also found that Carter's arguments were barred by res judicata. The trial court's judgment entry denying Carter's petition was filed February 8, 2017. It is from this judgment that Carter appeals asserting the following assignments of error for our review.

Assignment of Error No. 1 Carter's guilty plea was not [entered] knowingly, intelligently, and voluntarily it was the product of government interference with R.C. ยง2945.71, Carter's right to effective assistance of counsel for his defense, right to a fair and speedy trial, right to due process and equal protection of the law under the Fifth, Sixth, and Fourteenth Amendments to ...

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