[Cite as State v. Ali, 2013-Ohio-2696.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 99062
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
OSIRIS ALI DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-465969
BEFORE: Stewart, A.J., Rocco, J., and Keough, J.
RELEASED AND JOURNALIZED: June 27, 2013 FOR APPELLANT
Osiris Ali, pro se Inmate No. 503-171 501 Thompson Road P.O. Box 8000 Conneaut, OH 44030
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor
BY: Katherine Mullin Assistant County Prosecutor The Justice Center 1200 Ontario Street, 8th Floor Cleveland, OH 44113 MELODY J. STEWART, A.J.:
{¶1} Defendant-appellant Osiris Ali appeals his conviction for sexually oriented
offenses committed against his sister and niece between December 2002 and May 2005.
On February 22, 2006, the trial court found Ali guilty of four counts of rape of a person
under the age of 13 with force in violation of R.C. 2907.02(A)(1)(b); one count of rape
without force, also in violation of R.C. 2907.02(A)(1)(b); one count of gross sexual
imposition in violation of R.C. 2907.05(A)(4); six counts of kidnapping with a sexual
motivation specification in violation of R.C. 2905.01(A)(2) and R.C. 2941.147; and seven
counts of unlawful sexual conduct with a minor in violation of R.C. 2907.04(B)(3). The
trial court classified Ali as a sexually oriented offender and sentenced him to concurrent
life sentences on each of the five rape counts. Ali was also sentenced to four years on
each of the remaining counts, which were to run concurrent with each other, but
consecutive to the life sentences.
{¶2} Ali filed a direct appeal, which was affirmed in July of 2007. State v. Ali,
8th Dist. No. 88147, 2007-Ohio-3776. On November 26, 2008, Ali filed a motion to
reopen his appeal, which was denied as untimely after Ali failed to show good cause for
the delay. State v. Ali, 8th Dist. No. 88147, 2009-Ohio-1233. On December 17, 2010,
in response to motions by both the state and Ali to correct the 2006 sentencing entry for
failure to provide adequate notice of postrelease control sanctions, the trial court resentenced Ali after a de novo resentencing hearing. On October 11, 2011, Ali filed a
motion to correct void sentence based on an alleged improper notification of Ali’s
postrelease obligations. This motion was denied by the trial court. Again, Ali appealed
the ruling, and this court affirmed the judgment in State v. Ali, 8th Dist. No. 97612,
2012-Ohio-2510.
{¶3} On June 12, 2012, Ali filed a petition to vacate or set aside his sentence. Ali
alleged ineffective assistance of counsel in violation of his Sixth Amendment rights.
Ali’s motion was dismissed by the trial court with prejudice. This appeal followed.
{¶4} In his assignments of error, Ali argues that his trial counsel’s assistance was
ineffective based on three different grounds. First, Ali argues his trial counsel failed to
object to the court’s imposition of consecutive sentences. He also asserts his counsel
failed to argue that some of the offenses were allied and of similar import, and lastly, Ali
argues his trial counsel was ineffective because he failed to ask the trial court to consider
the spousal testimony provision of Evid.R. 601(B) as it related to the testimony of Ali’s
wife.
{¶5} In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984), the United States Supreme Court held that in order to establish a claim for
ineffective assistance of counsel, a defendant must show not only that his counsel’s
performance was deficient, but also that the deficiency prejudiced his defense. Id. at
687. The scrutiny of a reviewing court, under the rule of Strickland, of an attorney’s work must be highly deferential, and we must indulge a strong presumption that counsel’s
conduct falls within the range of reasonable professional assistance. Id. at 688.
{¶6} In this case, however, we need not address the issue of whether Ali’s trial
counsel was ineffective. Ali’s motion automatically fails due to being untimely and, in
the alternative, the assignments of error are barred as res judicata. These threshold
matters are dispositive of the ineffective assistance of counsel claims.
{¶7} A motion styled “Motion to Correct or Vacate Sentence” meets the definition
of a petition for postconviction relief under R.C. 2953.21(A) when the defendant has
already filed a direct appeal, asserts a violation of a constitutional right, seeks to render a
judgment void, and asks for a vacation of judgment and sentence. State v. Schlee, 117
Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, 12. A trial court’s decision to grant
or deny a petition for postconviction relief filed pursuant to R.C. 2953.21 should not be
disturbed absent an abuse of discretion. State v. White, 118 Ohio St.3d 12,
2008-Ohio-1623, 885 N.E.2d 905, 45. Abuse of discretion implies that the court’s
attitude is unreasonable, arbitrary, or unconscionable. Id. at 46.
{¶8} Under R.C. 2953.21(A)(2), “[a] petition * * * 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 * * *.” In
State v. Sharif, 8th Dist. No. 79325, 2001 Ohio App. LEXIS 4354 (Sept. 27, 2001), this
court held that a trial court may only entertain an untimely petition for postconviction
relief under the following circumstances: 1) the petitioner shows either that he was unavoidably prevented from discovering the facts upon which he relies in his petition, or that the United States Supreme Court has, since the expiration of the period for timely filing, recognized a new federal or state right that applies retroactively to the petitioner; and 2) the petitioner shows by clear and convincing evidence that a reasonable factfinder would not have found him guilty but for constitutional error at trial.
Id. at 9-10.
{¶9} Here, the trial court properly dismissed Ali’s petition for postconviction
relief. The time limitation for filing a motion for postconviction relief is jurisdictional,
State v. John, 8th Dist. No. 93226, 2010-Ohio-162, 8, and a trial court has no
authority to consider an untimely filed petition for postconviction relief absent an
exception. State v. Hutton, 8th Dist. No. 80763, 2007-Ohio-5443, 23. Ali was
found guilty on February 22, 2006, and sentenced on April 10, 2006. On August 28,
2006, the trial transcripts were prepared. Ali had 180 days from the date the transcript
was filed to file his petition. Likewise, Ali has not shown he was unavoidably prevented
from discovering facts relating to his petition or that any new federal or state right
applies. Therefore, since Ali’s motion is beyond the statutory timeline, his motion was
properly denied.
{¶10} Similarly, even if Ali’s application for postconviction relief were timely, his
opportunity to raise the ineffective assistance of counsel claims was during his direct
appeal. The doctrine of res judicata precludes a convicted defendant from raising an
issue in a motion for postconviction relief if he or she raised or could have raised the
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[Cite as State v. Ali, 2013-Ohio-2696.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 99062
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
OSIRIS ALI DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-465969
BEFORE: Stewart, A.J., Rocco, J., and Keough, J.
RELEASED AND JOURNALIZED: June 27, 2013 FOR APPELLANT
Osiris Ali, pro se Inmate No. 503-171 501 Thompson Road P.O. Box 8000 Conneaut, OH 44030
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor
BY: Katherine Mullin Assistant County Prosecutor The Justice Center 1200 Ontario Street, 8th Floor Cleveland, OH 44113 MELODY J. STEWART, A.J.:
{¶1} Defendant-appellant Osiris Ali appeals his conviction for sexually oriented
offenses committed against his sister and niece between December 2002 and May 2005.
On February 22, 2006, the trial court found Ali guilty of four counts of rape of a person
under the age of 13 with force in violation of R.C. 2907.02(A)(1)(b); one count of rape
without force, also in violation of R.C. 2907.02(A)(1)(b); one count of gross sexual
imposition in violation of R.C. 2907.05(A)(4); six counts of kidnapping with a sexual
motivation specification in violation of R.C. 2905.01(A)(2) and R.C. 2941.147; and seven
counts of unlawful sexual conduct with a minor in violation of R.C. 2907.04(B)(3). The
trial court classified Ali as a sexually oriented offender and sentenced him to concurrent
life sentences on each of the five rape counts. Ali was also sentenced to four years on
each of the remaining counts, which were to run concurrent with each other, but
consecutive to the life sentences.
{¶2} Ali filed a direct appeal, which was affirmed in July of 2007. State v. Ali,
8th Dist. No. 88147, 2007-Ohio-3776. On November 26, 2008, Ali filed a motion to
reopen his appeal, which was denied as untimely after Ali failed to show good cause for
the delay. State v. Ali, 8th Dist. No. 88147, 2009-Ohio-1233. On December 17, 2010,
in response to motions by both the state and Ali to correct the 2006 sentencing entry for
failure to provide adequate notice of postrelease control sanctions, the trial court resentenced Ali after a de novo resentencing hearing. On October 11, 2011, Ali filed a
motion to correct void sentence based on an alleged improper notification of Ali’s
postrelease obligations. This motion was denied by the trial court. Again, Ali appealed
the ruling, and this court affirmed the judgment in State v. Ali, 8th Dist. No. 97612,
2012-Ohio-2510.
{¶3} On June 12, 2012, Ali filed a petition to vacate or set aside his sentence. Ali
alleged ineffective assistance of counsel in violation of his Sixth Amendment rights.
Ali’s motion was dismissed by the trial court with prejudice. This appeal followed.
{¶4} In his assignments of error, Ali argues that his trial counsel’s assistance was
ineffective based on three different grounds. First, Ali argues his trial counsel failed to
object to the court’s imposition of consecutive sentences. He also asserts his counsel
failed to argue that some of the offenses were allied and of similar import, and lastly, Ali
argues his trial counsel was ineffective because he failed to ask the trial court to consider
the spousal testimony provision of Evid.R. 601(B) as it related to the testimony of Ali’s
wife.
{¶5} In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984), the United States Supreme Court held that in order to establish a claim for
ineffective assistance of counsel, a defendant must show not only that his counsel’s
performance was deficient, but also that the deficiency prejudiced his defense. Id. at
687. The scrutiny of a reviewing court, under the rule of Strickland, of an attorney’s work must be highly deferential, and we must indulge a strong presumption that counsel’s
conduct falls within the range of reasonable professional assistance. Id. at 688.
{¶6} In this case, however, we need not address the issue of whether Ali’s trial
counsel was ineffective. Ali’s motion automatically fails due to being untimely and, in
the alternative, the assignments of error are barred as res judicata. These threshold
matters are dispositive of the ineffective assistance of counsel claims.
{¶7} A motion styled “Motion to Correct or Vacate Sentence” meets the definition
of a petition for postconviction relief under R.C. 2953.21(A) when the defendant has
already filed a direct appeal, asserts a violation of a constitutional right, seeks to render a
judgment void, and asks for a vacation of judgment and sentence. State v. Schlee, 117
Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, 12. A trial court’s decision to grant
or deny a petition for postconviction relief filed pursuant to R.C. 2953.21 should not be
disturbed absent an abuse of discretion. State v. White, 118 Ohio St.3d 12,
2008-Ohio-1623, 885 N.E.2d 905, 45. Abuse of discretion implies that the court’s
attitude is unreasonable, arbitrary, or unconscionable. Id. at 46.
{¶8} Under R.C. 2953.21(A)(2), “[a] petition * * * 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 * * *.” In
State v. Sharif, 8th Dist. No. 79325, 2001 Ohio App. LEXIS 4354 (Sept. 27, 2001), this
court held that a trial court may only entertain an untimely petition for postconviction
relief under the following circumstances: 1) the petitioner shows either that he was unavoidably prevented from discovering the facts upon which he relies in his petition, or that the United States Supreme Court has, since the expiration of the period for timely filing, recognized a new federal or state right that applies retroactively to the petitioner; and 2) the petitioner shows by clear and convincing evidence that a reasonable factfinder would not have found him guilty but for constitutional error at trial.
Id. at 9-10.
{¶9} Here, the trial court properly dismissed Ali’s petition for postconviction
relief. The time limitation for filing a motion for postconviction relief is jurisdictional,
State v. John, 8th Dist. No. 93226, 2010-Ohio-162, 8, and a trial court has no
authority to consider an untimely filed petition for postconviction relief absent an
exception. State v. Hutton, 8th Dist. No. 80763, 2007-Ohio-5443, 23. Ali was
found guilty on February 22, 2006, and sentenced on April 10, 2006. On August 28,
2006, the trial transcripts were prepared. Ali had 180 days from the date the transcript
was filed to file his petition. Likewise, Ali has not shown he was unavoidably prevented
from discovering facts relating to his petition or that any new federal or state right
applies. Therefore, since Ali’s motion is beyond the statutory timeline, his motion was
properly denied.
{¶10} Similarly, even if Ali’s application for postconviction relief were timely, his
opportunity to raise the ineffective assistance of counsel claims was during his direct
appeal. The doctrine of res judicata precludes a convicted defendant from raising an
issue in a motion for postconviction relief if he or she raised or could have raised the
issue on direct appeal. State v. Sturdivant, 8th Dist. No. 98747, 2013-Ohio-584, 13, citing State v. Alexander, 8th Dist. No. 95995, 2011-Ohio-1380, at ¶ 15. See also State
v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), at paragraph nine of the syllabus.
{¶11} In this case, Ali already appealed his 2006 conviction. All assignments of
error were overruled, and the judgment was affirmed on July 26, 2007. The three
assignments of error he alleges in this appeal were ripe for review at the time Ali filed his
direct appeal. Thus, they are barred as res judicata. The trial court properly denied
Ali’s petition to vacate or set aside his sentence based on ineffective assistance of
counsel.
{¶12} Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga
County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MELODY J. STEWART, ADMINISTRATIVE JUDGE
KENNETH A. ROCCO, J., and KATHLEEN ANN KEOUGH, J., CONCUR