[Cite as State v. Ali, 2013-Ohio-2696.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION

No. 99062

STATE OF OHIO 

PLAINTIFF-APPELLEE 

vs. 

OSIRIS ALI

 DEFENDANT-APPELLANT

JUDGMENT:

AFFIRMED 

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-465969 

BEFORE: Stewart, A.J., Rocco, J., and Keough, J. 

RELEASED AND JOURNALIZED: June 27, 2013
FOR APPELLANT

Osiris Ali, pro se 

Inmate No. 503-171 

501 Thompson Road 

P.O. Box 8000 

Conneaut, OH 44030 

ATTORNEYS FOR APPELLEE 

Timothy J. McGinty 

Cuyahoga County Prosecutor 

BY: Katherine Mullin 

Assistant County Prosecutor 

The Justice Center 

1200 Ontario Street, 8th Floor 

Cleveland, OH 44113 
MELODY J. STEWART, A.J.:

{¶1} Defendant-appellant Osiris Ali appeals his conviction for sexually oriented 

offenses committed against his sister and niece between December 2002 and May 2005. 

On February 22, 2006, the trial court found Ali guilty of four counts of rape of a person 

under the age of 13 with force in violation of R.C. 2907.02(A)(1)(b); one count of rape 

without force, also in violation of R.C. 2907.02(A)(1)(b); one count of gross sexual 

imposition in violation of R.C. 2907.05(A)(4); six counts of kidnapping with a sexual 

motivation specification in violation of R.C. 2905.01(A)(2) and R.C. 2941.147; and seven 

counts of unlawful sexual conduct with a minor in violation of R.C. 2907.04(B)(3). The 

trial court classified Ali as a sexually oriented offender and sentenced him to concurrent 

life sentences on each of the five rape counts. Ali was also sentenced to four years on 

each of the remaining counts, which were to run concurrent with each other, but 

consecutive to the life sentences. 

{¶2} Ali filed a direct appeal, which was affirmed in July of 2007. State v. Ali, 

8th Dist. No. 88147, 2007-Ohio-3776. On November 26, 2008, Ali filed a motion to 

reopen his appeal, which was denied as untimely after Ali failed to show good cause for 

the delay. State v. Ali, 8th Dist. No. 88147, 2009-Ohio-1233. On December 17, 2010, 

in response to motions by both the state and Ali to correct the 2006 sentencing entry for 

failure to provide adequate notice of postrelease control sanctions, the trial court 
resentenced Ali after a de novo resentencing hearing. On October 11, 2011, Ali filed a 

motion to correct void sentence based on an alleged improper notification of Ali’s 

postrelease obligations. This motion was denied by the trial court. Again, Ali appealed 

the ruling, and this court affirmed the judgment in State v. Ali, 8th Dist. No. 97612, 

2012-Ohio-2510. 

{¶3} On June 12, 2012, Ali filed a petition to vacate or set aside his sentence. Ali 

alleged ineffective assistance of counsel in violation of his Sixth Amendment rights. 

Ali’s motion was dismissed by the trial court with prejudice. This appeal followed. 

{¶4} In his assignments of error, Ali argues that his trial counsel’s assistance was 

ineffective based on three different grounds. First, Ali argues his trial counsel failed to 

object to the court’s imposition of consecutive sentences. He also asserts his counsel 

failed to argue that some of the offenses were allied and of similar import, and lastly, Ali 

argues his trial counsel was ineffective because he failed to ask the trial court to consider 

the spousal testimony provision of Evid.R. 601(B) as it related to the testimony of Ali’s 

wife. 

{¶5} In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 

(1984), the United States Supreme Court held that in order to establish a claim for 

ineffective assistance of counsel, a defendant must show not only that his counsel’s 

performance was deficient, but also that the deficiency prejudiced his defense. Id. at 

687. The scrutiny of a reviewing court, under the rule of Strickland, of an attorney’s 
work must be highly deferential, and we must indulge a strong presumption that counsel’s 

conduct falls within the range of reasonable professional assistance. Id. at  688. 

{¶6} In this case, however, we need not address the issue of whether Ali’s trial 

counsel was ineffective. Ali’s motion automatically fails due to being untimely and, in 

the alternative, the assignments of error are barred as res judicata. These threshold 

matters are dispositive of the ineffective assistance of counsel claims. 

{¶7} A motion styled “Motion to Correct or Vacate Sentence” meets the definition 

of a petition for postconviction relief under R.C. 2953.21(A) when the defendant has 

already filed a direct appeal, asserts a violation of a constitutional right, seeks to render a 

judgment void, and asks for a vacation of judgment and sentence. State v. Schlee, 117 

Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431,  12. A trial court’s decision to grant 

or deny a petition for postconviction relief filed pursuant to R.C. 2953.21 should not be 

disturbed absent an abuse of discretion. State v. White, 118 Ohio St.3d 12, 

2008-Ohio-1623, 885 N.E.2d 905,  45. Abuse of discretion implies that the court’s 

attitude is unreasonable, arbitrary, or unconscionable. Id. at  46. 

{¶8} Under R.C. 2953.21(A)(2), “[a] petition * * * shall be filed no later than one 

hundred eighty days after the date on which the trial transcript is filed in the court of 

appeals in the direct appeal of the judgment of conviction or adjudication * * *.” In 

State v. Sharif, 8th Dist. No. 79325, 2001 Ohio App. LEXIS 4354 (Sept. 27, 2001), this 

court held that a trial court may only entertain an untimely petition for postconviction 

relief under the following circumstances: 
1) the petitioner shows either that he was unavoidably prevented from 

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

States Supreme Court has, since the expiration of the period for timely 

filing, recognized a new federal or state right that applies retroactively to 

the petitioner; and 2) the petitioner shows by clear and convincing evidence 

that a reasonable factfinder would not have found him guilty but for 

constitutional error at trial. 

Id. at  9-10. 

{¶9} Here, the trial court properly dismissed Ali’s petition for postconviction 

relief. The time limitation for filing a motion for postconviction relief is jurisdictional, 

State v. John, 8th Dist. No. 93226, 2010-Ohio-162,  8, and a trial court has no 

authority to consider an untimely filed petition for postconviction relief absent an 

exception. State v. Hutton, 8th Dist. No. 80763, 2007-Ohio-5443,  23. Ali was 

found guilty on February 22, 2006, and sentenced on April 10, 2006. On August 28, 

2006, the trial transcripts were prepared. Ali had 180 days from the date the transcript 

was filed to file his petition. Likewise, Ali has not shown he was unavoidably prevented 

from discovering facts relating to his petition or that any new federal or state right 

applies. Therefore, since Ali’s motion is beyond the statutory timeline, his motion was 

properly denied. 

{¶10} Similarly, even if Ali’s application for postconviction relief were timely, his 

opportunity to raise the ineffective assistance of counsel claims was during his direct 

appeal. The doctrine of res judicata precludes a convicted defendant from raising an 

issue in a motion for postconviction relief if he or she raised or could have raised the 

issue on direct appeal. State v. Sturdivant, 8th Dist. No. 98747, 2013-Ohio-584,  13, 
citing State v. Alexander, 8th Dist. No. 95995, 2011-Ohio-1380, at ¶ 15. See also State 

v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), at paragraph nine of the syllabus. 

{¶11} In this case, Ali already appealed his 2006 conviction. All assignments of 

error were overruled, and the judgment was affirmed on July 26, 2007. The three 

assignments of error he alleges in this appeal were ripe for review at the time Ali filed his 

direct appeal. Thus, they are barred as res judicata. The trial court properly denied 

Ali’s petition to vacate or set aside his sentence based on ineffective assistance of 

counsel. 

{¶12} Judgment affirmed. 

It is ordered that appellee recover of appellant its costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the Cuyahoga 

County Court of Common Pleas to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

 

 

MELODY J. STEWART, ADMINISTRATIVE JUDGE 

KENNETH A. ROCCO, J., and 

KATHLEEN ANN KEOUGH, J., CONCUR