[Cite as State v. Jackson , 2021-Ohio-1472.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES: : Hon. Craig R. Baldwin, P.J. Plaintiff - Appellee : Hon. W. Scott Gwin, J. : Hon. John W. Wise, J. -vs- : : MORRIS JACKSON, JR., : Case No. 2020CA00165 : Defendant - Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2005- CR-1123(B)

JUDGMENT: Affirmed

DATE OF JUDGMENT: April 26, 2021

APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant KYLE L. STONE MORRIS JACKSON, JR., pro se Prosecuting Attorney Inmate No. A494-145 Stark County, Ohio Richland Correctional Institution P.O. Box 8107 By: VICKI L. DeSANTIS Mansfield, Ohio 44905 Assistant Prosecuting Attorney Appellate Division 110 Central Plaza South Ste. 510 Canton, Ohio 44702-1413Stark County, Case No. 2020CA00165 2

Baldwin, J. {¶1} Defendant-appellant Morris Jackson, Jr. appeals from the Octobe r 29, 2020 Judgment Entry of the Stark County Court of Common Pleas denyin g his Motion for Ineffective Assistance of Counsel. Plaintiff-appellee is the St ate of Ohio.

STATEMENT OF THE FACTS AND CASE {¶2} On August 5, 2005, appellant was indicted on two counts of aggr avated robbery, one count of grand theft of a motor vehicle, one count of attempted kidnapping and three firearm specifications. Following a jury trial, the j ury found appellant guilty on all four counts, as well as the firearm specifications. On Nove mber 28, 2005, the court imposed an aggregate sentence on appellant of thirty-two and on e-half years in prison. {¶3} Appellant filed a direct appeal. Pursuant to an Opinion filed o n December 18, 2006 in State v. Jackson , Stark App. No. 2005 CA 00309, 2006-Ohio-6728, this Court affirmed appellant's conviction, but remanded this matter for a new sentencing hearing based on the Ohio Supreme Court's decision in State v. Foster, 109 Ohio St.3d 1, 2006– Ohio–856, 845 N.E.2d 470. The Ohio Supreme Court declined to ac cept further review. On June 11, 2007, appellant was resentenced to an aggregate sen tence of thirty- two and a half years in prison. {¶4} Appellant then appealed. Pursuant to an Opinion filed on July 2 8, 2008 in

State v. Jackson , Stark App. No. 2007–CA–00204, 2008-Ohio-3907, this Court remanded the case for a second resentencing hearing based on th e trial court's failure to advise appellant of post release control obligations. {¶5} On July 14, 2008, appellant filed had a Petition to Vacate or Set Aside Sentence pursuant to R.C. 2953.21. As memorialized in a Judgmen t Entry filed on AugustStark County, Case No. 2020CA00165 3

6, 2008, the trial court overruled the same. On August 18, 200 8, appellant was resentenced to an aggregate sentence of thirty-two and a half y ears in prison. Appellant’s motion to file a delayed appeal in the Ohio Supreme Court was d enied. {¶6} Appellant, on May 10, 2013, filed a Notice/Motion of Plain Erro r. The trial court, in a Judgment Entry filed on July 12, 2013, sustained th e State’s Motion to Dismiss and Motion for Summary judgment and dismissed appellant’s Notic e/Motion of Plain

Error. {¶7} Thereafter, on August 13, 2013, appellant filed a Post-Convicti on Motion. The trial court, pursuant to a Judgment Entry filed on February 13, 2014, granted the State’s Motion to Dismiss and Motion for Summary Judgment and d ismissed appellant’s

Petition. {¶8} On August 31, 2015, appellant filed a Petition to Vacate Void S entence. Following a hearing held on October 19, 2015, appellant was res entenced to thirty-two and a half years in prison. Appellant, on August 22, 2016, file d a Notice of Plain Error and, on August 22, 2016, also filed a Motion to Void sentence f or Non-Appealable order pursuant to R.C. 2505.02 and R.C. 2501.02. He also filed a Moti on to Correct Judgment/Journal pursuant to Crim.R. 36 on the same date. The t rial court, pursuant to a Judgment Entry filed on November 4, 2016, granted appellant’s Motion to Correct Judgment Entry/Journal Entry in part and stated that it would i ssue a nunc pro tunc sentencing entry correcting the date of appellant’s sentencing hearing, noting his inperson appearance, and including a calculation of appellant’s j ail time credit in the entry. The trial court denied appellant’s Motion to Void sentence for Non-Appealable order and stated that with respect to his Notice of Plain Error, it would issue a nunc pro tunc entryStark County, Case No. 2020CA00165 4

including a calculation of appe llant’s jail time credit. The tr ial court filed a Nunc Pro Tunc Sentencing Entry on November 4, 2016. {¶9} Appellant, on June 13, 2019, filed a Motion to Vacate and Void Sentence/Merge Allied Offenses. The trial court denied the moti on on August 22, 2019. Appellant attempted to appeal from such entry but this Court di smissed the appeal on the grounds that appellant had failed to perfect the appeal by fili ng the notice of appeal with the trial court. Appellant then filed a Notice of Appeal in the Ohio Supreme Court. However, his motion for a delayed appeal was denied on January 21, 2020. {¶10} Appellant, on May 20, 2020, filed a Motion for Ineffective Assi stance of Counsel. Appellant, in his motion, alleged that trial counsel w as ineffective in failing to argue that witness identification evidence was impermissibly su ggestive and in advising appellant that the State’s preemptory challenges cannot be obje cted to. Appellant argued that trial counsel should have made a Batson challenge. {¶11} The trial court, via a Judgment Entry filed on October 29, 2020 , denied appellant’s Motion for Ineffective Assistance of Counsel. The trial court found that the motion was an untimely post-conviction motion and that appellan t’s arguments were barred by the doctrine of res judicata. {¶12} Appellant now appeals, raising the following assignment of erro r on appeal: {¶13} “I. INEFFECTIVE ASSISTANCE OF COUNSEL PURSUANT TO STRICKLAND V. WASHINGTON, 466 U.S. 668.”

I {¶14} Appellant, in his sole assignment of error, argues that the tri al court erred in denying his Motion for Ineffective Assistance of Counsel. We di sagree.Stark County, Case No. 2020CA00165 5

{¶15} Appellant’s motion was an untimely filed post-conviction motion . Appellant was obligated to file his petition for post-conviction relief n o later than three hundred sixtyfive days after the expiration of the time for filing the appea l. R.C. 2953.21. If a petition is untimely filed, the trial court is required to entertain the pe tition only if appellant could meet the requirements of R.C. 2953.23(A). The trial court may n ot entertain the untimely petition for post-conviction relief “unless the petitioner init ially demonstrates * * * he was unavoidably prevented from discovering the facts necessary for the claim for relief [.]” State v. Tolliver , 10th Dist. Franklin No. 14AP-170, 2014-Ohio-4824, 2014 WL 5493878, ¶ 18; R.C. 2953.23(A)(1)(a). State v. Dunkle , 5th Dist. Licking No. 18-CA-86, 2019-Ohio-76, ¶ 16. {¶16} Appellant's petition is delinquent, being related to a convicti on that occurred over ten years prior to the filing of the petition and appellan t makes no effort to argue that he was unavoidably prevented from discovering the errors he ass erts. The trial court, therefore, had no jurisdiction to consider this petition. State v. Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, 121 N.E.3d 351, reconsideration denied, 15 4 Ohio St.3d 1467, 2018-Ohio-5210, 114 N.E.3d 217. {¶17} Moreover, “[u]nder the doctrine of res judicata, a final judgme nt of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding, except an appeal from that judgment, any defens e or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on an appeal from that judgment.” State v. Szefcyk, 77 Ohio St.3d 95, 1996-Ohio 337, 671 N.E.2d 233 (19 96) (Citations omitted).Stark County, Case No. 2020CA00165 6

{¶18} As noted by the trial court, appellant was appointed new counse l for his direct appeal. Appellant could have raised the ineffective ass istance of trial counsel claims in one of his direct appeals. Appellant’s claims are, th erefore, also barred by the doctrine of res judicata. {¶19} Appellant’s sole assignment of error is, therefore, overruled. {¶20} Accordingly, the judgment of the Stark County Court of Common P leas is

affirmed.

By: Baldwin, P.J. Gwin, J. and Wise, John, J. concur.