[Cite as State v. Kendrick , 2022-Ohio-634.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO Plaintiff-Appellee

v. SHAWN D. KENDRICK, SR. Defendant-Appellant : : : : : : : : : : Appellate Case No. 29082

Trial Court Case No. 2003-CR-4234 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 4th day of March, 2022.

. . . . . . . . . . . MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 00693 84, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Ap pellate Division, Montgomery County Courts Building, 301 West Third Street, Dayto n, Ohio 45422 Attorney for Plaintiff-Appellee SHAUN D. KENDRICK, SR., Inmate No. A489-082, Pickaway Correctio nal Institution, P.O. Box 209, 11781 State Route 762, Orient, Ohio 43146 Defendant-Appellant, Pro Se

. . . . . . . . . . . . .

WELBAUM, J.-2- {¶ 1} Defendant-appellant, Shaun D. Kendrick, Sr., 1 appeals pro se from the judgment of the Montgomery County Court of Common Pleas denying his petition for post-conviction relief filed on March 5, 2021. For the reasons outlined below, the judgment of the trial court will be affirmed.

Facts and Course of Proceedings {¶ 2} In 2003 and 2004, Kendrick was charged in three separate indict ments for 17 counts of rape, three counts of aggravated robbery, five cou nts of kidnapping, and three counts of abduction. Pursuant to a plea agreement, Kendr ick pled guilty to seven counts of rape in exchange for the State’s dismissing all of th e other indicted counts. Prior to sentencing, Kendrick moved to withdraw his guilty plea , but the trial court denied the motion. At sentencing, the trial court imposed five consec utive terms of 10 to 25 years in prison, one concurrent term of 10 to 25 years in priso n, and one term of 10 years in prison to be served consecutively to all the other terms. {¶ 3} Kendrick appealed from his conviction and raised several assign ments of error in support of his appeal. Specifically, Kendrick challen ged the trial court’s denial of his presentence motion to withdraw his guilty plea, his motion to suppress, and his motion to sever certain counts in the indictment for a separate trial. Kendrick also argued that the trial court erred by imposing maximum, consecutive prison s entences and that his trial counsel provided ineffective assistance by advising him to ente r a guilty plea. We

1 Appellant’s name is spelled both “Shawn” and “Shaun” in the tr ial court record and in appellant’s various appeals. Notably, all of appellant’s pro s e filings use “Shaun”; therefore, we presume that “Shaun” is the correct spelling of a ppellant’s name. However, in order to be consistent with the trial court’s judgm ent that is on appeal, we use “Shawn” as opposed to “Shaun” in the caption of this appeal

.-3- overruled all of Kendrick’s assignments of error and affirmed t he judgment of the trial

court. State v. Kendrick , 2d Dist. Montgomery No. 20965, 2006-Ohio-311 (“ Kendrick I ”). {¶ 4} Kendrick appealed our decision in Kendrick I to the Supreme Court of Ohio. The Supreme Court granted a discretionary appeal solely on the sentencing issue, reversed Kendrick’s sentence, and remanded the matter for resen tencing in accordance

with State v. Foster , 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. In re Ohio Criminal Sentencing Statutes Cases , 109 Ohio St.3d 411, 2006-Ohio-2394, 848 N.E.2d 809. On remand, the trial court resentenced Kendrick, and Kend rick thereafter appealed from the resentencing judgment. Following our review, we affir med the judgment of the

trial court. State v. Kendrick , 2d Dist. Montgomery No. 21790, 2007-Ohio-6136 (“ Kendrick II ”). Kendrick then once again appealed to the Supreme Court of Ohio, but the Supreme Court did not accept the appeal for review. State v. Kendrick , 117 Ohio St.3d 1441, 2008-Ohio-1279, 883 N.E.2d 458. {¶ 5} Approximately one month before filing his appeal to the Supreme Court of

Ohio in Kendrick I , on January 10, 2006, Kendrick filed a motion for leave to fil e a delayed petition for post-conviction relief and a corresponding petitio n. In his motion for leave, Kendrick acknowledged that his petition for post-conviction rel ief was filed beyond the 180-day deadline that was in effect at that time. Kendrick cla imed that he had been unaware of the deadline because his appellate counsel did not l et him know when the trial court transcript was filed for his appeal. Kendrick also blamed the untimeliness of his petition on his inability to access the prison law library. The trial court, however, denied Kendrick’s motion for leave to file an untimely petition for post-conviction relief. Kendrick did not appeal from that decision.-4- {¶ 6} Approximately five years later, on January 20, 2011, Kendrick f iled a second petition for post-conviction relief captioned: “Motion to Dismi ss and Vacate Conviction Pursuant to R.C. 2505.02 & Crim.R. 32(A)(C).” In support of th e petition, Kendrick argued that his Sixth and Fourteenth amendment rights were viol ated because the resentencing entry had not met the requirements of a final appe alable order. Specifically, Kendrick argued that the resentencing entry faile d to set forth the manner of his conviction, i.e., that Kendrick pled guilty to the crimes f or which he was convicted. The trial court, however, found that the error in the resentenc ing entry could be corrected by issuing a nunc pro tunc entry and therefore overruled Kendri ck’s petition. Kendrick appealed from that decision and we affirmed the judgment of the trial court. State v.

Kendrick , 2d Dist. Montgomery No. 24626, 2012-Ohio-504 (“ Kendrick III ”). {¶ 7} On September 12, 2011, Kendrick filed a second motion to withdr aw his guilty plea pursuant to Crim.R. 32.1 and Crim.R. 32(C). The trial cou rt overruled the motion without conducting a hearing, and Kendrick appealed. On appeal , Kendrick’s appellate counsel filed a brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which asserted the absence of any issues wi th arguable merit for appeal. In response, Kendrick filed a pro se brief arguing tha t his guilty plea was rendered involuntary by his trial counsel’s allegedly engaging in coercive tactics and exerting undue influence over him. {¶ 8} After reviewing the matter, we found that all of the claims tha t Kendrick raised in his second motion to withdraw his guilty plea were either ad dressed or could have been addressed in Kendrick’s direct appeal or in a petition for post -conviction relief. State v.

Kendrick , 2d Dist. Montgomery No. 25100, 2012-Ohio-5795, ¶ 17 (“ Kendrick IV ”).-5- Because of this, we found no manifest injustice warranting the withdrawal of Kendrick’s plea. Id . We also found that the claims in Kendrick’s motion were barr ed by the doctrine of res judicata. Id. Accordingly, we held that the trial court did not err by over ruling Kendrick’s second motion to withdraw his guilty plea. Id . We also held that there were no other issues with arguable merit for Kendrick to advance on appeal. Id . at ¶ 19. {¶ 9} On December 3, 2013, a year after our decision in Kendrick IV , Kendrick filed a motion requesting the trial c ourt to order the Dayton Municip al Court to release certain public records pursuant to R.C. 149.43(B)(8). The trial court overruled the motion on grounds that it did not have jurisdiction to order the municipa l court to release the public records. Kendrick appealed from that decision, which this cour t later affirmed. State v.

Kendrick , 2d Dist. Montgomery No. 26042, 2014-Ohio-2816 (“ Kendrick V ”). {¶ 10} After our decision in Kendrick V , on November 17, 2015, Kendrick filed a third motion to withdraw his guilty plea. In the motion, Kendr ick raised several arguments challenging a search warrant issued by the Dayton Municipal Cou rt, the territorial jurisdiction of the Dayton Police Department, the trial court’s Crim.R. 11 plea colloquy, and one of the three indictments issued in the case, i.e., the “C indictment,” which charged Kendrick with one count of rape and one count of kidnapping. K endrick argued that the

trial court dismissed the C indictment and abused its discretio n by accepting his guilty plea to the rape count in that indictment. {¶ 11} The trial court overruled Kendrick’s third motion to withdraw h is guilty plea on grounds that the motion failed to demonstrate a manifest inj ustice warranting the withdrawal of Kendrick’s plea. The trial court reached this co nclusion because it found that all of the arguments asserted in the motion could have bee n raised on appeal or-6- through a timely petition for post-conviction relief. The tria l court also found that the arguments were barred by the doctrine of res judicata. Kendric k appealed from the trial court’s decision overruling his third motion to withdraw guilty plea. We affirmed the judgment of the trial court. State v. Kendrick , 2d Dist. Montgomery No. 27133, 2017- Ohio-1306 (“ Kendrick VI ”). In affirming the trial court’s decision, we noted that Ken drick’s argument concerning the C indictment lacked merit because the r ecord of the plea hearing established “that only Count 2 [(kidnapping)] of the C indictment, and not the entirety thereof, was dismissed, and [that] Kendrick pled guilt y to Count 1 [(rape)] of the

C indictment.” Id . at ¶ 17. {¶ 12} Approximately four years later, on March 5, 2021, Kendrick file d a third petition for post-conviction relief—the petition that is the su bject of this appeal. In the petition, Kendrick argued that his conviction should be vacated based on five ineffective assistance of counsel claims, the first four of which center ar ound Kendrick’s C indictment. Kendrick argued that his trial counsel was ineffec tive for: (1) allowing him to plead guilty to the rape count in the allegedly dismissed C ind ictment; (2) failing to argue that he had the right to a new grand jury proceeding on the cou nts in the allegedly dismissed C indictment; (3) failing to argue that he had the ri ght to confront his accusers at a new grand jury proceeding on the counts in the allegedly d ismissed C indictment; and (4) failing to object to the S tate and/or the trial court n ot journalizing the alleged

dismissal of the C indictment. For his fifth ineffective assis tance of counsel claim, Kendrick argued that his trial counsel failed to object to Dayt on Police Detective Phillip Olinger’s authority to investigate his case on territorial juri sdiction grounds. According to Kendrick, Det. Olinger was restricted to investigating matters within Dayton, Ohio.-7- {¶ 13} On March 13, 2021, the State filed a motion to dismiss Kendrick ’s petition for post-conviction relief on grounds that the trial court lack ed jurisdiction to consider the petition based on the petition’s untimeliness. Shortly thereaf ter, on March 18, 2021, the trial court issued a decision and entry denying Kendrick’s peti tion on grounds that it did not have jurisdiction over the matter. Approximately two weeks after the trial court issued its decision, Kendrick filed a motion requesting a 30-day exten sion to file a reply to the State’s motion to dismiss. Kendrick then filed the instant app eal from the trial court’s decision denying his March 5, 2021 petition for post-conviction relief. {¶ 14} In support of his appeal, Kendrick raised six assignments of er ror for this court to review. For purposes of clarity, we will address Kend rick’s assignments of error

out of order.

Second, Third, Fourth, Fifth, and Sixth Assignments of Error {¶ 15} Kendrick’s second, third, fourth, fifth, and sixth assignments of error mirror

the ineffective assistance of counsel claims that Kendrick rais ed in his March 5, 2021 petition for post-conviction relief. As previously noted, the first four of those claims revolve around the C indictment, as Kendrick asserts that his t rial counsel was ineffective for allowing him to plead guilty to the rape count in the alleg edly dismissed C indictment, and by failing to raise various objections r elated to that matt er. Kendrick also claims that his trial counsel was ineffective for failing to object to Det. Olinger’s authority to investigate his case on territorial jurisdiction grounds. For the followin g reasons, the trial court did not err by denying Kendrick’s March 5, 2021 petition for post-c onviction relief.-8- (1) The trial court lacked jurisdiction to review Kendrick’s petition for post-conviction relief because the petition was untimely and successive. {¶ 16} When, as in this case, a direct appeal from a conviction has be en taken, a petition for post-conviction relief must 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. R.C. 2953.21(A )(2)(a). A trial court lacks jur isdiction to consider an untimely petition for post-conviction relief unless the untimel iness is excused under R.C. 2953.23(A). State v. Current , 2d Dist. Champaign No. 2012-CA-33, 2013-Ohio-1921, ¶ 16, citing State v. Johnson , 2d Dist. Montgomery No. 24775, 2012-Ohio-2542, ¶ 11. (Other citations omitted.) {¶ 17} “Pursuant to R.C. 2953.23(A)(1)(a), a defendant may not file an untimely or successive petition for post-conviction relief unless (1) the d efendant was unavoidably prevented from discovering the facts upon which he or she relie s to present the claim, or (2) the United States Supreme Court recognizes a new federal or state right that applies retroactively to his or her situation and the petition asserts a claim based on that right.”

State v. Baker , 2d Dist. Montgomery No. 27596, 2017-Ohio-8602, ¶ 13. “The pe titioner must also show by clear and convincing evidence that, if not fo r the constitutional error from which he suffered, no reasonable factfinder would have fou nd him guilty.” Id ., citing R.C. 2953.23(A)(1)(b). {¶ 18} In this case, Kendrick’s March 5, 2021 petition for post-convic tion relief was filed almost 16 years after the transcript of the trial court p roceedings was filed as part of Kendrick’s direct appeal. Kendrick also filed two prior petiti ons for post-convictions relief—one in January 2006 and one in January 2011. Therefore, the petition for post--9- conviction relief at issue in this appeal is both untimely and successive. As a result, the petition could have been properly considered by the trial court only if the statutory exceptions in R.C. 2953.23(A)(1) applied. {¶ 19} Upon review, we find that Kendrick failed to establish any of t he statutory exceptions for filing an untimely, successive petition for post -conviction relief. The ineffective assistance claims that Kendrick asserted in his pet ition are not based on a new federal or state right and Kendrick was not unavoidably prevent ed from discovering the pertinent facts underlying those claims. Rather, the pertinent facts were apparent from the trial court record and could have been discovered “through the exercise of reasonable diligence.” (Citations omitted.) State v. Shabazz , 2d Dist. Greene No. 2017-CA-11, 2017-Ohio-7199, ¶ 12. {¶ 20} In so holding, we note that Kendrick blamed the untimeliness of his petition on his trial counsel’s alleged failure to notify him of the tim e limitation for filing a petition for post-conviction relief. However, “[w]e generally have held that a defendant’s lack of knowledge of time limitations, even due to the failure of his a ttorney to notify him of such, does not establish that a defendant was ‘unavoidably prevented’ from filing a timely [petition].” State v. Harwell , 2d Dist. Montgomery No. 28104, 2019-Ohio-643, ¶ 22, citing

State v. Wells , 2d Dist. Champaign No. 2010 CA 5, 2010-Ohio-3238, ¶ 23. {¶ 21} Kendrick also blamed the untimeliness of his petition on his ap pellate counsel’s alleged failure to timely provide him with a transcri pt of the trial court proceedings. However, Kendrick’s petition included a March 16, 2006 letter from the Supreme Court of Ohio indicating that Kendrick’s appellate coun sel “forwarded all documents in his possession including [Kendrick’s] trial transc ripts to [Kendrick] on-10- January 25, 2006.” Petition, Ex. 9. According to that letter, Kendrick had a transcript of the trial court proceedings 15 years before he filed his March 5, 2021 petition for postconviction relief. Kendrick, however, provides no explanation for the 15-year delay in filing his petition. {¶ 22} Regardless of that extreme delay, the transcript does not even support the

ineffective assistance of counsel claims that Kendrick asserted in his petition for postconviction relief, particularly those claims concerning the C i ndictment. As we noted in

Kendrick VI , the transcript of Kendrick’s plea hearing established that “o nly Count 2 [(kidnapping)] of the C indictment, and not the entirety thereo f, was dismissed, and [that] Kendrick pled guilty to Count 1 [(rape)] of the C indictment.” Kendrick VI , 2d Dist. Montgomery No. 27133, 2017-Ohio-1306, at ¶ 17; Plea Hearing Tra ns. (Jan. 24, 2005), p. 76-78, 83-84. The plea hearing transcript “further reflects that Kendrick acknowledged his understanding of the nature of his conduct as represented i n Count 1 of the C

indictment.” Id. {¶ 23} For all of the foregoing reasons, the untimely, successive natu re of Kendrick’s petition for post-conviction relief was not excused under R.C. 2953.23(A). Therefore, the trial court lack ed jurisdiction to consider the petition.

(2) The ineffective assistance of counsel claims that Kendrick raised in his petition for post-conviction relief were barred by the doctrine of res judicata. {¶ 24} “Under the doctrine of res judicata, a final judgment of convic tion 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-11- process that was raised or could have been raised by the defend ant at the trial, which resulted in that judgment of conviction, or on an appeal from t hat judgment.” State v. Perry , 10 Ohio St.2d 175, 176, 226 N.E.2d 104 (1967), paragraph nine of the syllabus.

{¶ 25} “ ‘If an alleged constitutional error [such as ineffective assi stance of counsel] could have been raised and fully litigated on direct appeal, th e issue is res judicata and may not be litigated in a post[-]conviction proceeding.’ ” State v. Lane , 2d Dist. Greene No. 2014-CA-54, 2015-Ohio-2712, ¶ 13, quoting State v. Franklin , 2d Dist. Montgomery No. 19041, 2002-Ohio-2370, ¶ 9, citing Perry at 180. Therefore, “[a]ny ineffective assistance claim relating to matters contained within the recor d should be brought through a direct appeal.” Id ., citing State v. Wilson , 2d Dist. Montgomery No. 23129, 2013-Ohio180, ¶ 47-48; State v. Crossley , 2d Dist. Clark No. 2020-CA-10, 2020-Ohio-6640, ¶ 21. {¶ 26} “Res judicata not only applies to claims that could have been o r were raised on direct appeal, ‘ “but to all post[-]conviction proceedings i n which an issue was or could

have been raised.” ’ ” State v. Becraft , 2d Dist. Clark No. 2018-CA-96, 2019-Ohio-2348, ¶ 15, quoting State v. Heid , 4th Dist. Scioto No. 15CA3710, 2016-Ohio-2756, ¶ 18, quoting State v. Montgomery , 2013-Ohio-4193, 997 N.E.2d 579, ¶ 42 (8th Dist.) “More specifically, ‘res judicata applies to bar raising piecemeal cl aims in successive post[-] conviction relief petitions or motions to withdraw a guilty ple a that could have been raised, but were not, in the first post-conviction relief petition or m otion to withdraw a guilty plea.’ ”

Id ., quoting State v. McCain , 2d Dist. Montgomery No. 27195, 2017-Ohio-7518, ¶ 35. {¶ 27} As previously discussed, the fir st four ineffective assistance of counsel claims that Kendrick raised in his March 5, 2021 petition for p ost-conviction relief revolved around Kendrick’s trial counsel’s allowing Kendrick to plead gu ilty to the rape charge in-12- the C indictment, which Kendrick incorrectly claims was dismiss ed. Kendrick’s fifth

ineffective assistance of counsel claim concerned his trial cou nsel’s failing to object to the investigating detective’s allegedly acting outside of his terri torial jurisdiction. All of these claims are barred by res judicata because they concern matters that were contained

within the record and therefore could have been raised in Kendr ick’s direct appeal or in one of Kendrick’s prior petitions for post-conviction relief. Moreover, although not couched as ineffective assistance of counsel claims, Kendrick r aised similar claims concerning his C indictment and the Dayton Police Department’s territorial jurisdiction in his third motion to withdraw his guilty plea, and we affirmed t he trial court’s decision overruling those claims in Kendrick VI . Therefore, the claims in Kendrick’s petition have already been addressed by this court and are barred by res judi cata for that reason as

well. {¶ 28} Because the trial court did not have jurisdiction to consider K endrick’s untimely, successive petition for post-conviction relief, and b ecause the ineffective assistance of counsel claims raised in the petition were barred by the doctrine of res judicata, Kendrick’s second, third, fourth, fifth, and sixth as signments of error are

overruled.

First Assignment of Error {¶ 29} Under his first assignment of error, Kendrick contends that the trial court erred by prematurely denying his petition for post-conviction r elief. Kendrick asserts that pursuant to Crim.R. 6(C) and (D), he had until March 23, 2021, to file a reply to the State’s-13- motion to dismiss his petition, and that the trial court denied his petition five days before that date, on March 18, 2021. The State concedes the trial cou rt erred in that regard, but claims that said error was harmless. We agree. {¶ 30} Crim.R. 52(A) defines harmless error in the context of criminal cases and provides that: “Any error, defect, irregularity, or variance wh ich does not affect substantial rights shall be disregarded.” Under the harmless-error standar d of review, “the government bears the burden of demonstrating that the error did not affect the substantial rights of the defendant.” (Emphasis omitted.) State v. Perry , 101 Ohio St.3d 118, 2004- Ohio-297, 802 N.E.2d 643, ¶ 15, citing United States v. Olano , 507 U.S. 725, 741, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). (Other citation omitted.) The Supreme Court of Ohio has stated that to affect the substantial rights of the de fendant, “ ‘the error must have been prejudicial: It must have affected the outcome of the [tri al] court proceedings.’ ” (Emphasis omitted.) State v. Fisher , 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, ¶ 7, quoting Olano at 734. “Accordingly, Crim.R. 52(A) asks whether the rights affected are ‘substantial’ and, if so, whether a defendant has suffered any prejudice as a

result.” State v. Harris , 142 Ohio St.3d 211, 2015-Ohio-166, 28 N.E.3d 1256, ¶ 36, quoting State v. Morris , 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 24-25. {¶ 31} Considering the trial court’s lack of jurisdiction over Kendric k’s petition for post-conviction relief, and the application of res judicata to the ineffective assistance of counsel claims asserted therein, we find that the outcome of th e petition would not have changed even if the trial court had waited the correct amount o f time before denying the petition. That is, Kendrick’s petition would have been denied regardless of whether Kendrick was given the opportunity to file a reply to the State ’s motion to dismiss his-14- petition, as Kendrick would not have been able to raise any new arguments in his reply.

See R.C. 2953.21(A)(4) (“A petitioner shall state in the original or amended petition * * * all grounds for relief claimed by the petitioner. * * * [A]ny ground for relief that is not so stated in the petition is waived.”). Because of this, we find that the trial court’s error did not affect a substantial right and did not prejudice Kendrick. Therefore, the trial court’s error was harmless and may be properly disregarded under Crim.R . 52(A). {¶ 32} Kendrick’s first assignment of error is overruled.

Conclusion {¶ 33} Having overruled all assignments of error raised by Kendrick, t he judgment of the trial court denying Kendrick’s March 5, 2021 petition fo r post-conviction relief is

affirmed.

. . . . . . . . . . . . .

DONOVAN, J. and EPLEY, J., concur.

Copies sent to: Mathias H. Heck, Jr. Andrew T. French Shaun D. Kendrick, Sr. Hon. Gerald Parker