[Cite as State v. Ali, 2016-Ohio-1348.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF SUMMIT ) 

STATE OF OHIO 

 Appellee 

 v. 

JUBA ABDULLAH ALI 

 Appellant 

C.A. No. 28000 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF SUMMIT, OHIO 

CASE No. CR 97 08 1663 

DECISION AND JOURNAL ENTRY 

Dated: March 31, 2016 

 

CARR, Presiding Judge. 

{¶1} Appellant, Juba Ali, appeals the judgment of the Summit County Court of 

Common Pleas. This Court affirms. 

I. 

{¶2} Almost 20 years ago, Ali was convicted of rape, kidnapping, and gross sexual 

imposition. His convictions were affirmed on direct appeal. State v. Ali, 9th Dist. Summit No. 

18841, 1998 WL 597654 (Sept. 9, 1998) and State v. Ali, 9th Dist. Summit No. 19119, 1999 WL 

270420 (Apr. 28, 1999). 

{¶3} Upon the motion of Ali, the trial court corrected an error in the imposition of postrelease control in 2009. Though his initial attempts to appeal were dismissed, Ali eventually 

appealed to this Court and the imposition of post-release control was affirmed. State v. Ali, 9th 

Dist. Summit No. 26223, 2012-Ohio-4025. Ali subsequently filed multiple petitions for postconviction relief that were denied by the trial court. 
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{¶4} On September 29, 2015, Ali filed a motion for resentencing. The State filed a 

memorandum in opposition, and Ali filed a supplemental memorandum in support. On October 

19, 2015, the trial court issued an order concluding that it could not reach the merits of Ali’s 

motion as it constituted a successive petition for post-conviction relief. 

{¶5} On appeal, Ali raises one assignment of error. 

II. 

ASSIGNMENT OF ERROR 

THE TRIAL COURT’S IMPOSITION OF TWO SENTENCES FOR TWO 

OFFENSES ARISING OUT OF THE SAME INCIDENT WAS CONTRARY 

TO LAW IN VIOLATION OF [R.C.] 2941.25 RESULTING IN PLAIN 

ERROR[.] 

{¶6} In his sole assignment of error, Ali contends that the trial court erred in denying 

his post-conviction motion in which he argued that he was improperly sentence on allied 

offenses of similar import. This Court disagrees. 

{¶7} It is well settled that “[w]here a criminal defendant, subsequent to his or her direct 

appeal, files a motion seeking vacation or correction of his or her sentence on the basis that his or 

her constitutional rights have been violated, such a motion is a petition for postconviction relief 

as defined in R.C. 2953.21.” State v. Reynolds, 79 Ohio St.3d 158 (1997), at syllabus. 

Moreover, this Court has consistently held that where a defendant does not properly raise issues 

relating to whether the trial court sentenced him on allied offenses of similar import on direct 

appeal, his motion must be construed as a petition for post-conviction relief. State v. Hendricks, 

9th Dist. Summit No. 26978, 2014-Ohio-683, ¶ 8, citing State v. Williams, 9th Dist. Summit No. 

25879, 2011-Ohio-6141, ¶ 13. R.C. 2953.21(A)(1)(a) provides that “[a]ny person who has been 

convicted of a criminal offense * * * and who claims that there was such a denial or infringement 

of the person’s rights as to render the judgment void or voidable under the Ohio Constitution or 
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the Constitution of the United States, * * * may file a petition in the court that imposed sentence, 

stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment 

or sentence or to grant other appropriate relief.” Ali failed to raise the allied offenses issue on 

direct appeal. Accordingly, we must construe his motion as a petition for post-conviction relief. 

Furthermore, because Ali filed an earlier petition for post-conviction relief, we must construe the 

instant petition as a successive petition. 

{¶8} This Court has recognized that “[s]uccessive petitions for post-conviction relief 

are governed by R.C. 2953.23. Under R.C. 2953.23(A) a trial court is forbidden from 

entertaining a second or successive petition for post-conviction relief unless it meets two 

conditions. First, the petitioner must show either that he was unavoidably prevented from 

discovering the facts upon which he relies in the petition, or that the United States Supreme 

Court has, since his last petition, recognized a new federal or state right that applies retroactively 

to the petitioner. Second, the petitioner must show by clear and convincing evidence that a 

reasonable factfinder would not have found him guilty but for constitutional error at trial. See

R.C. 2953.23(A)(1).” State v. Kyle, 9th Dist. Summit No. 25974, 2012-Ohio-456, ¶ 7, quoting 

Williams at ¶ 15. 

{¶9} Here, Ali’s successive petition did not offer a cogent explanation regarding why 

he was unavoidably prevented from discovering the facts upon which his petition was based, nor 

did it identify a retroactive right that has been recognized by the United States Supreme Court. 

Though Ali offered an argument pertaining to the underlying sentencing issue in his successive 

petition, he did not satisfy the requirements of R.C. 2953.23(A)(1). It follows that the trial court 

lacked authority to consider the merits of Ali’s petition and correctly denied him the requested 

relief. 
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{¶10} Ali’s sole assignment of error is overruled. 

III. 

{¶11} Ali’s assignment of error is overruled. The judgment of the Summit County 

Court of Common Pleas is affirmed. 

Judgment affirmed. 

 

 There were reasonable grounds for this appeal. 

 We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy 

of this journal entry shall constitute the mandate, pursuant to App.R. 27. 

 Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the 

mailing in the docket, pursuant to App.R. 30. 

 Costs taxed to Appellant. 

 

 DONNA J. CARR 

 FOR THE COURT 

HENSAL, J. 

SCHAFER, J. 

CONCUR. 
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APPEARANCES: 

JUBA ABDULLAH ALI, pro se, Appellant. 

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant 

Prosecuting Attorney, for Appellee.