[Cite as State v. Edwards , 2015-Ohio-3039.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY

STATE OF OHIO, : Plaintiff-Appellee, : Case No. 14CA3474

vs. : RICHARD D. EDWARDS, : DECISION AND JUDGMENT ENTRY

Defendant-Appellant. :

______________________________________________________________ APPEARANCES: Richard Edwards, Orient, Ohio, Pro Se Matthew S. Schmidt, Ross County Prosecuting Attorney, and Pamela C. Wells, Ross County Assistant Prosecuting Attorney, Chillicothe, Ohio, for appellee.
CRIMINAL APPEAL FRO COMMON PLEAS COURT DATE JOURNALIZED: 7-15-15 ABELE, J. {¶ 1} This is an appeal from a Ross County Comm on Pleas Court judgment that denied a petition for postconviction relief f iled by Richard D. Edwards, defendant below and appellant herein. Appellant assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR: “DID THE TRIAL COURT VIOLATE THE DEFENDANT/APPELLANT’S CONSTITUTIONAL RIGHTS THROUGH THE FIALURE [sic ] TO CHARGE THE CONSOECUTOIVE [sic ] SENTENCES IT METED OUT, WITHOUT GIVING CONSIDERATION TO A SUPREME COURT RULING DIRECTLY AFFECTED THE DEFENDANT/APPELLANT’S CONSITITUIONAL [sic ] RIGHTROSS, 14CA3474 2 TO HAVE A JURY DETERMINE FACTS THAT WOULD ALLOW THE TRIAL COURT TO IMPOSE CONSECUTIVE SENTENCES.” SECOND ASSIGNMENT OF ERROR: “THE DEFENDANT APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO HAVE EFFECTIVE ASSISTANCE OF COUNSEL WHERE COUNSEL FAILED TO CALL AND EXAMINE A PLETHORA OF KEY WITTNESSES [sic ] WHO WOULD HAVE DISPROVED THE STATE’S CONTENTIONS THAT HE WAS VIOLATING THE STATUTES OF THE STATE OF OHIO BY COOKING METHAMPHETAMINES.” THIRD ASSIGNMENT OF ERROR: “THE DEFENDANT APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO HAVE EFFECTIVE ASSISTANCE OF COUNSEL WHERE COUNSEL FAILED TO CALL WITTNESSES [sic ] AND PROVIDE MITIGATING EVIDENCE PRIOR TO SENTENCING.” {¶ 2} On June 1, 2012, the Ross County Grand Jury returned an indictment in Case No. 12CR140 that charged appellant with (1) tamper ing with evidence in violation of R.C. 2921.12; and (2) two counts of aggravated possession of dr ugs in violation of R.C. 2925.11. On August 3, 2012, the Ross County Grand Jury returned an i ndictment in Case No. 12CR374 that charged appellant with the (1) illegal possession of materials for the manufacture of drugs in violation of R.C. 2925.041; (2) illegal manufacture of drugs in violation of R.C. 2925.04; and (3) aggravated possession of drugs in violation of R.C. 2925.11. Appellant pled not guilty to all charges. {¶ 3} These matters came on for trial in Oc tober 2013. The jury ultimately found appellant guilty of all charges. In Case No. 12CR140, the trial c ourt sentenced appellant to serve two years in prison for tampering with evidence and ten months on each count for the aggravatedROSS, 14CA3474 3 possession of drugs, with the term s to be served consecutively to one another. In Case No. 12CR374, the trial court found that counts one and two are allied offe nses of similar import, as are counts two and three. The appellee elected to have appellant senten ced on Count II (illegal manufacture of drugs) and the cour t ordered appellant to serve a se ven year prison term ordered to be served consecutively to the sentences imposed in Case No. 12CR140 for a total prison sentence of nine years. {¶ 4} No immediate appeal was taken from those judgments. However, on February 20, 2014 we granted a motion to file delayed appeal in each case. On May 11, 2015, this Court filed a Decision and Judgment Entry that affirmed (in part) and reversed (in part) the judgment of conviction and sentence. State v. Edwards , 4 th Dist. Ross Nos. 14CA3424 & 14CA3425, 2015-Ohio-2140 ( Edwards I ). Although we concluded that the trial court correctly denied appellant’s Crim.R. 29 motion for judgment of acquittal, we agreed with appellant that the court did not follow the proper statutory criteria to impose consecutive sentences. Thus, we remanded the case for re-sentencing. Id. at ¶¶ 15, 20-21. {¶ 5} Prior to Edwards I , however, appellant commenced the instant action and filed petitions for postconviction relief in each of the two consolidated cr iminal cases. It appears that the gist of appellant's argument is that (1) he received ineffective assi stance of trial counsel because said counsel did not ca ll witnesses on his beha lf, or ask appropriate questions of the witnesses that were called, and (2) the imposition of consecutive sentences violated Ohio law. The appellee filed its memorandum contra and, on December 12, 2014, the trial court denied both petitions. The matter is now before us for review.

IROSS, 14CA3474 4 {¶ 6} Several procedural principles should be noted at the outset of our analysis. First, this is not a first appeal of right, as was Edwards I . Rather, the case sub judice is an appeal from the denial of a R.C. 2953.21 petition for postconviction relief. This is important because the only issue that can now be raised in this current a ppeal is whether the tria l court erred by denying appellant’s petition for such relief. State v. Garrett , 4 th Dist. Gallia No. 13CA13, 2014-Ohio-3462, at ¶5. However, no such assignment of error is posited in appellant’s brief. {¶ 7} Second, the only assignments of error appe llant raises in this appeal concern alleged improprieties committed by the trial court or counsel, before the original judgment of conviction and sentence. Generally, these issues should have b een raised in a first appeal of right. To the extent they were not raised in Edwards I , they cannot be considered for the first time here on an appeal from deni al of a petition for postconviction relief. The doctrine of res judicata bars appellant from raising an issue on postconviction relief that could have, and should have, been raised in a fi rst appeal of right. See State v. Bender , 4 th Dist. Gallia Nos. 14CA6 & 14CA7, 2015-Ohio-1927, at ¶17; State v. Kelly , 4 th Dist. Scioto No. 14CA3637, 2014-Ohio-5840, at ¶17; State v. Carpenter , 4 th Dist. Lawrence No. 14CA1, 2014-Ohio-5698, at ¶12. {¶ 8} Finally, it is important to remember that a R.C. 2953.21 petition for postconviction relief is not a panacea for every perceived ill endur ed at the trial court level. A petition for postconviction relief exists to addr ess constitutional problems. Id. at (A)(1)(a); also see generally
State v. Jones , 7 th Dist. Mahoning No. 14MA6, 2015-Ohio-1707, at ¶44; State v. Osco , 11 th Dist. Portage No. 2014–P–9, 2015-Ohio-44, at ¶20. Appella nt and many pro se criminal litigants fail to understand that not every alle ged error committed at the trial le vel rises to the level of a constitutional error. Many pro cedural errors and non-constitutiona l substantive errors are notROSS, 14CA3474 5 reviewable under R.C. 2953.21.

II {¶ 9} We jointly consider appellant’s assignment s of error because all can be resolved on the basis of the foregoing principles. The Ohio Supreme Court has repeated ly held that an issue cannot be raised in a petition for postconviction re lief if the petitioner coul d have raised it during a first appeal of right. See State v. Jackson , 141 Ohio St.3d 171, 2014-Ohio-3707, 23 N.E.3d 1023, at ¶92; Lynch v. Wilson , 114 Ohio St.3d 118, 2007-Ohio- 3254, 868 N.E.2d 982 at ¶¶3&5; State v. Perry , 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), at paragraph nine of the syllabus. Here, appellant’s three a ssignments of error could have been raised in Edwards I . Indeed, he actually did raise the sentencing issue in Edwards I. We also agreed with him and reversed his sentence on the basis of his ar gument. 2015-Ohio-2140, at ¶20. However, appella nt's claim of ineffective assistance of counsel c ould also have been raised at th at time. It was not and. Thus, this issue is barred from being raised here. {¶ 10} In short, appellant’s first a ssignment of error is hereby overruled as moot in view of our decision in Edwards I . Moreover, appellant's second a nd third assignments of error are hereby overruled because they are not properly before us at this time and, furthermore, claims of ineffective assistance of trial counsel are barred from being rais ed on postconviction relief by the doctrine of res judicata. Accordingly, for these reasons, we find no error in the trial court’s ruling and hereby affirm its judgment.
JUDGMENT AFFIRMED.ROSS, 14CA3474 6 JUDGMENT ENTRY It is ordered that the trial c ourt’s judgment be affirmed a nd appellee recove r of appellant costs herein taxed. The Court finds there were reas onable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Harsha, J. & McFarland, A.J.: Concur in Judgment & Opinion For the Court

BY: Peter B. Abele, JudgeROSS, 14CA3474 7

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this documen t constitutes a final j udgment entry and the time period for further appeal commences from the date of filing with the clerk.