[Cite as State v. Morris, 2014-Ohio-4907.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsFRANK MORRIS, JR. 

 Defendant-Appellant 

JUDGES: 

Hon. W. Scott Gwin, P. J. 

Hon. John W. Wise, J. 

Hon. Craig R. Baldwin, J. 

Case No. 2014 CA 00047 

O P I N I O N 

CHARACTER OF PROCEEDING: Criminal Appeal from the Massillon 

Municipal Court, Case No. 1996 CRB 2115 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: November 3, 2014 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

PERICLES STERGIOS RICHARD DRAKE 

MASSILLON CITY PROSECUTOR 303 Courtyard Centre 

One James Duncan Plaza SE 116 Cleveland Avenue NW 

Massillon, Ohio 44646 Canton, Ohio 44702 
Stark County, Case No. 2014 CA 00047 2 

Wise, J. 

{¶1} Appellant Frank Morris appeals from the February 12, 2014, Judgment 

Entry entered in the Massillon Municipal Court overruling his motion for relief from 

judgment. 

{¶2} Appellee did not file a brief in this matter 

STATEMENT OF THE FACTS AND CASE 

{¶3} On October 21, 1006, Appellant Frank Morris was arraigned on charges of 

domestic violence. A temporary protection order was imposed, and Appellant signed for 

same. 

{¶4} On November 7, 1996, Appellant was convicted of domestic violence 

subsequent to a no-contest plea. Appellant was represented by counsel. 

{¶5} On October 25, 2004, Appellant, through different counsel, filed a Motion 

to Withdraw Plea. In said motion, Appellant argued he was not made aware that he 

would be prohibited from owning or possessing a firearm, and that such affected his 

ability to obtain employment. 

{¶6} On May 20, 2005, the trial court denied Appellant’s motion to withdraw 

plea. 

{¶7} On May 22, 2005, Appellant filed a Motion to Reconsider through a third 

attorney. The attorney later withdrew as counsel. 

{¶8} On November 5, 2013, Appellant filed the current Motion for Relief from 

Judgment. 

{¶9} On January 27, 2014, an oral hearing was held on Appellant’s motion, and 

affidavits were submitted in support of Appellant’s motion. 
Stark County, Case No. 2014 CA 00047 3 

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{¶10} By Judgment Entry dated February 12, 2014, the trial court denied 

Appellant’s motion for relief from judgment, finding: 

{¶11} “The Defendant failed to meet any of the requirements for post-conviction 

relief pursuant to O.R.C. Sec. 2953.21. It was not timely filed and all the issues were 

previously ruled on by Judge Kettler in May of 2005.” 

{¶12} Appellant now appeals, raising the following Assignment of Error for 

review: 

{¶13} “I. THE TRIAL COURT ERRED IN DENYING THE APPELLANT’S 

MOTION FOR RELIEF FROM JUDGMENT.” 

I. 

{¶14} Appellant, in his sole Assignment of Error, argues the trial court erred in 

denying his motion for relief from judgment. We disagree. 

{¶15} In his motion, Appellant makes a claim of ineffective assistance of counsel 

arguing that his attorney failed to advise him that he would be prohibited from carrying a 

firearm, and that such prohibition would prevent him from being able to be employed in 

certain fields. 

{¶16} Pursuant to R.C. 2953.21, the trial court considered Appellant’s current 

motion as a motion for post-conviction relief. 

{¶17} R.C. §2953.21(A) states, in part, as follows: 

{¶18} “(1) Any person who has been convicted of a criminal offense or 

adjudicated a delinquent child 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 the Constitution of the United States * * * may file a petition in the 
Stark County, Case No. 2014 CA 00047 4 

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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. The petitioner may file a supporting affidavit and other documentary evidence in 

support of the claim for relief.” 

{¶19} Pursuant to R.C. §2953.21(A)(2), a petition for post-conviction relief “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 or, if the direct appeal involves a sentence of death, the date on which the 

trial transcript is filed in the Supreme Court. If no appeal is taken, except as otherwise 

provided in section 2953.23 of the Revised Code, the petition shall be filed no later than 

one hundred eighty days after the expiration of the time for filing the appeal.” 

{¶20} Initially, the trial court found that Appellant made this same argument in 

his Motion to Withdraw, and that such was previously considered fully and denied by the 

trial court. 

{¶21} Under the doctrine of res judicata, a final judgment 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 defense 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 93, 671 N.E.2d 233(1996), syllabus, approving and following 

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

syllabus. It is well settled that, “pursuant to res judicata, a defendant cannot raise an 

issue in a [petition] for post conviction relief if he or she could have raised the issue on 
Stark County, Case No. 2014 CA 00047 5 

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direct appeal.” State v. Reynolds, 79 Ohio St.3d 158, 161, 679 N.E.2d 1131(1997). 

Accordingly, “[t]o survive preclusion by res judicata, a petitioner must produce new 

evidence that would render the judgment void or voidable and must also show that he 

could not have appealed the claim based upon information contained in the original 

record.” State v. Nemchik, 9th Dist. Lorain No. 98CA007279, 2000 WL 254908 (Mar. 8, 

2000); see, also, State v. Ferko, 9th Dist. Summit No. 20608, 2001 WL 1162835 (Oct. 3, 

2001). 

{¶22} As stated by the trial court, The Temporary Orders in this matter, signed 

by Appellant, state: 

{¶23} “ ... the Defendant shall be prohibited from: 

{¶24} 5. Obtaining or making use of any deadly weapon or dangerous 

ordinance.” 

{¶25} The trial court further found that Appellant has failed to demonstrate that 

he was not guilty of the offense of Domestic Violence. 

{¶26} The trial court further found said motion was not timely made, Appellant’s 

conviction having occurred in November, 1996. 

 
Stark County, Case No. 2014 CA 00047 6 

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{¶27} Upon review, we find no error in the trial court’s denial of Appellant’s 

motion for relief from judgment. Appellant’s sole Assignment of Error is overruled. 

{¶28} For the foregoing reasons, the judgment of the Massillon Municipal Court, 

Stark County, Ohio, is affirmed. 

By: Wise, J. 

Gwin, P. J., and 

Baldwin, J., concur. 

JWW/d 1021