[Cite as State v. Robinson, 2018-Ohio-856.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsCALVIN ROBINSON 

 Defendant-Appellant 

JUDGES: 

Hon. William B. Hoffman, P.J. 

Hon. Patricia A. Delaney, J. 

Hon. Earle E. Wise, Jr., J. 

Case No. 2017CA00117 

O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of 

Common Pleas, Case No. 1995-CR-0005B 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: March 5, 2018 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

JOHN D. FERRERO, CALVIN M. ROBINSON, PRO SE 

Prosecuting Attorney, #303-414 

Stark County, Ohio Marion Correctional Institution 

 P.O. Box 57 

By: KATHLEEN O. TATARSKY Marion, Ohio 43301 

Assistant Prosecuting Attorney 

Appellate Section 

110 Central Plaza, South - Suite 510 

Canton, Ohio 44702-1413 
Stark County, Case No. 2017CA00117 2

Hoffman, P.J. 

{¶1} Defendant-appellant Calvin M. Robinson appeals the June 6, 2017 

Judgment Entry entered by the Stark Count Court of Common Pleas, which denied his 

Motion in Reconsideration to Correct Void Sentence. Plaintiff-appellee is the state of 

Ohio. 

STATEMENT OF THE CASE1

{¶2} On January 27, 1995, the Stark County Grand Jury indicted Appellant on 

three counts of felonious assault, in violation of R.C. 2903.11; four counts of kidnapping, 

in violation of R.C. 2905.11; one count of felonious sexual penetration, in violation of R.C. 

2907.12; four counts of aggravated robbery, in violation of R.C. 2911.01; and one count 

of aggravated burglary, in violation of R.C. 2911.11. All of the counts carried attendant 

firearm specifications. The charges arose from the December 15, 1994 break-in of a 

home in Massillon, Stark County, Ohio, and the subsequent robbery of the four 

occupants, the shooting of two of the occupants, and the sexual assault of the female 

occupant. 

{¶3} On March 3, 1995, Appellant withdrew his former plea of not guilty and 

entered a plea of guilty to the Indictment. Via Judgment Entry filed March 27, 1995, the 

trial court sentenced Appellant to an aggregate prison term of twenty-three to fifty years. 

Appellant did not appeal his convictions and sentence. 

{¶4} Appellant filed a petition for post-conviction relief on September 23, 1996. 

Therein, Appellant claimed he was entitled to “truth in sentencing.” Via Judgment Entry 

 

1 A full rendition of the Statement of the Facts underlying Appellant’s original conviction 

is not necessary for our disposition of this appeal. 
Stark County, Case No. 2017CA00117 3

filed October 22, 1996, the trial court summarily overruled the petition, finding such was 

untimely filed. Appellant did not appeal the trial court’s ruling. 

{¶5} Subsequently, on August 18, 2003, Appellant filed a motion to merge allied 

offenses of similar import, asserting he should have been charged with only one count 

each of aggravated robbery, kidnapping, and felonious assault. The state filed a reply 

and a motion to dismiss, arguing Appellant’s motion was, in essence, a petition for postconviction relief and, as such, was untimely filed. Via Judgment Entry filed September 4, 

2003, the trial court denied Appellant’s motion, agreeing with the state the motion 

constituted a petition for post-conviction relief pursuant to R.C. 2953.21, and was untimely 

filed and barred by the doctrine of res judicata. 

{¶6} Appellant filed an appeal to this Court in State v. Robinson, Stark App. No. 

2003CA00333. This Court affirmed the trial court’s decision, likewise finding Appellant’s 

petition was untimely and barred by the doctrine of res judicata. State v. Robinson, 5th

Dist. Stark No. 2003CA00333, 2004 -Ohio- 2650.

{¶7} On June 1, 2017, Appellant filed a Motion in Reconsideration to Correct 

Void Sentence. The trial court summarily denied the motion via Judgment Entry filed June 

6, 2017. 

{¶8} It is from this judgment entry Appellant appeals, raising the following 

assignments of error: 

 I. DEFENDANT-APPELLANT’S SENTENCE DOESN’T CONFORM 

TO THE MANDATORY PROVISIONS IN R.C. 2941.25 
Stark County, Case No. 2017CA00117 4

 II. DEFENDANT-APPELLANT’S SENTENCE IS DECLARED “VOID” 

BECAUSE THE SENTENCE DOESN’T CONFORM TO STATUTORY 

REQUIREMENTS 

 III. DEFENDANT-APPELLANT’S SENTENCE DOESN’T’ 

CONFORM TO THE MANDATORY PROVISIONS IN R.C. 2941.25(A) 

 IV. DEFENDANT-APPELLANT’S SENTENCE IN 1995-CR-0005(B) 

IS VIOLATING HIS 14TH AMENDMENT, SECTION 1 – DUE PROCESS 

RIGHTS 

 V. DEFENDANT APPELLANT STATES THAT IN THE ORIGINAL 

FILING OF THE “NOTICE OF APPEAL” OF THIS CASE AT BAR, THE 

DEFENDANT-APPELLANT STATED THAT HE WANTED THIS “APPEAL” 

TO BE HEARD UNDER THE DOCTRINES OF 2953.08 G(2)(B) FOR 

SUCH SENTENCE IS CONTRARY TO LAW. 

I, II, III, IV, V 

{¶9} We address Appellant's assignments of error together as they are controlled 

by the same legal principle. 

{¶10} Although not captioned as such, Appellant’s motion was, and the trial court 

properly treated it as, a petition for post-conviction relief. The caption of a pro se pleading 

does not define the nature of the pleading. State v. Reynolds, 79 Ohio St.3d 158, 160, 

679 N.E.2d 1131 (1997). Thus, if the pleading meets the definition of a petition for postconviction relief, it must be treated as such, regardless of the manner in which appellant 

actually presents the motion to the court. State v. Green, 5th Dist. Knox No. 15–CA–13, 
Stark County, Case No. 2017CA00117 5

2015–Ohio–4441, ¶ 10. A motion meets the definition of a motion for post-conviction relief 

set forth in R.C. 2953.21(A)(1) if it is (1) filed subsequent to direct appeal; (2) claims a 

denial of constitutional rights; (3) seeks to render the judgment void; and (4) asks for 

vacation of the judgment and sentence. Reynolds, supra, 79 Ohio St.3d at 160. 

{¶11} As a petition for post-conviction relief, Appellant’s motion was filed well 

beyond the time limits set by R.C. 2953.21, which requires a petition for to be filed no 

later than 365 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 365 days after the expiration of the 

time for filing an appeal if no direct appeal is filed. Appellant was convicted and sentenced 

in 1995; therefore, the petition was untimely. 

{¶12} Appellant failed to present evidence to establish any of the exceptions to 

R.C. 953.23(A)(1) apply to the untimely motion. Appellant did not demonstrate he was 

unavoidably prevented from discovering facts to present his claim or that a new federal 

or state right accrued retroactively to his claim. R.C. 2953.23(A)(1)(a). Nor did he 

demonstrate by clear and convincing evidence that, but for a constitutional error, no 

reasonable factfinder would have found him guilty of the offense as he pled guilty to the 

charge. R.C. 2953.23(A)(1)(b). 

{¶13} When a petition for post-conviction relief is filed untimely and does not meet 

the requirements of R.C. 2953.23(A)(1), a trial court lacks jurisdiction to entertain the 

merits of the petition. State v. Lynn, 5th Dist. Muskingum No. CT2007–0046, 2008–Ohio–

2149. Accordingly, the trial court did not err in denying Appellant's motion for relief from 

the judgment. 
Stark County, Case No. 2017CA00117 6

{¶14} Further, it is well-settled, “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 direct appeal.” State v. Elmore, 5th Dist. Licking No. 2005–CA–32, 2005–Ohio–5940 

(Citation omitted.) Under the doctrine of res judicata, a final judgment of conviction bars 

the defendant who was represented by counsel from raising and litigating in any 

proceedings, except an appeal from that judgment, any defense or claimed lack of due 

process that the defendant raised or could have raised at the trial which resulted in that 

judgment of conviction or on appeal from that judgment. State v. Perry, 10 Ohio St.2d 

175, 226 N.E.2d 104 (1967). A defendant who was represented by counsel is barred from 

raising an issue in a petition for post-conviction relief if the defendant raised or could have 

raised the issue at trial or on direct appeal. State v. Szefcyk, 77 Ohio St.3d 93, 671 N.E.2d 

233 (1996). 

{¶15} Appellant's arguments could have been raised on direct appeal; therefore, 

are barred by res judicata. Accordingly, we find the trial court properly denied Appellant's 

motion. 

{¶16} Appellant's first, second, third, fourth, and fifth assignments of error are 

overruled. 
Stark County, Case No. 2017CA00117 7

{¶17} The judgment of the Stark County Court of Common Pleas is affirmed. 

By: Hoffman, P.J. 

Delaney, J. and 

Wise, Earle, J. concur