[Cite as State v. Feagin, 2018-Ohio-4221.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Earle E. Wise, Jr., J. -vs- : : MARCO A. FEAGIN : Case No. 18CA48 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2003CR0086
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 16, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellee
JOSEPH C. SNYDER MARCO A. FEAGIN, Pro Se 38 South Park Street Inmate No. 480-240 Mansfield, OH 44902 Allen Oakwood Correctional Institution P.O. Box 4501 Lima, OH 45802 Wise, Earle, J.
{¶ 1} Defendant-Appellant, Marco A. Feagin, appeals the May 30, 2018 judgment
entry of the Court of Common Pleas of Richland County, Ohio denying his petition for
postconviction relief. Plaintiff-Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On December 22, 2004, appellant was sentenced to an aggregate term of
eighteen years to life involving several counts including murder with a firearm
specification. Appellant filed a direct appeal and this court affirmed his convictions and
sentence. State v. Feagin, 5th Dist. Richland No. 05CA1, 2006-Ohio-676. Appellant did
not raise any claims of prosecutorial misconduct or ineffective assistance of counsel.
{¶ 3} On March 25, 2010, a new sentencing entry was entered in order to impose
a mandatory term of post-release control. The trial court sentenced appellant to the
original sentence and added a five year term of mandatory post-release control.
Appellant filed an appeal, raising in part prosecutorial misconduct. This court affirmed
the resentencing, and noted the arguments relative to prosecutorial misconduct were res
judicata as they could have been raised in the direct appeal. State v. Feagin, 5th Dist.
Richland No. 10CA46, 2011-Ohio-2025.
{¶ 4} On April 25, 2011, the trial court denied appellant's motion for leave to file
delayed motion for new trial. Appellant filed an appeal, raising in part prosecutorial
misconduct. This court affirmed the trial court's decision, and again found the arguments
relative to prosecutorial misconduct to be res judicata. State v. Feagin, 5th Dist. Richland
No. 15CA41, 2015-Ohio-5107. Appellant filed a motion for reconsideration. By judgment
entry filed March 7, 2016, this court granted the motion, finding the trial court erred in resentencing appellant in its March 25, 2010 entry relative to post-release control. The
portion of the entry on post-release control was vacated, but the remainder of appellant's
sentence was left intact. By judgment entry filed March 9, 2016, the trial court vacated
the order of post-release control.
{¶ 5} On April 5, 2016, the trial court denied appellant's motion to convey him for
hearing after vacation of sentence. Appellant filed an appeal, raising in part prosecutorial
misconduct. This court affirmed the trial court's decision, and again found the arguments
relative to prosecutorial misconduct to be res judicata. State v. Feagin, 5th Dist. Richland
No. 16CA21, 2016-Ohio-7003.
{¶ 6} On May 11, 2018, appellant filed a petition to vacate and set aside judgment
of conviction and sentence pursuant to R.C. 2953.21 and 2953.23. Appellant made
arguments relative to jury instructions, prosecutorial misconduct, and ineffective
assistance of counsel. By judgment entry filed May 30, 2018, the trial court denied the
petition, finding it was a successive petition for postconviction relief, the petition was
untimely filed, and the arguments therein were res judicata.
{¶ 7} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶ 8} "APPELLANT WAS DEPRIVED OF A FAIR TRIAL WHERE THE STATE
OF OHIO WITHHELD EXCULPATORY EVIDENCE IN VIOLATION OF THE EQUAL
PROTECTION AND DUE PROCESS CLAUSE(S) OF THE UNITED STATES
CONSTITUTION AND ART. 1 SECTION 10, 16 OF THE OHIO CONSTITUTION." II
{¶ 9} "APPELLANT WAS DEPRIVED OF A FAIR TRIAL WHERE THE STATE
FAILED TO PROPERLY INSTRUCT THE JURY AS TO SELF-DEFENSE WHILE
INSTRUCTING IN A GENERAL SENSE IN VIOLATION OF APPELLANT'S DUE
PROCESS RIGHTS."
III
{¶ 10} "APPELLANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF
COUNSEL AT TRIAL AND UPON HIS DIRECT APPEAL WHERE COUNSEL ON
APPEAL FAILED TO RAISE THE CUMULATIVE EFFECTS OF ERRORS OF HIS TRIAL
COUNSEL'S AT TRIAL IN VIOLATION OF THE APPELLANT'S SIXTH AMENDMENT
RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS CONTAINED IN THE UNITED
STATES CONSTITUTION AND ARTICLE 1 SECTION 10, 16 OF THE OHIO
CONSTITUTION, AND AS CONFERRED IN THE OHIO'S FOURTEENTH
AMENDMENT."
{¶ 11} We note the day after appellee filed its brief, appellant filed a supplemental
brief adding a fourth assignment of error. Appellant did not seek leave to supplement his
brief therefore, the additional assignment of error will not be considered.
I, II, III
{¶ 12} In his three assignments of error, appellant claims the trial court erred in
denying his petition for postconviction relief, arguing he was denied a fair trial because
the state withheld exculpatory evidence, the state failed to properly instruct the jury on
self-defense, and he was deprived of the effective assistance of trial counsel and
appellate counsel in his direct appeal. We disagree with appellant's claims. {¶ 13} Appellant appeals the trial court's denial of his May 11, 2018 petition to
vacate and set aside judgment of conviction and sentence. In his petition, appellant
argued the jury was not instructed on provocation, the prosecutor made improper
statements, the prosecutor elicited perjured testimony, he received ineffective assistance
of trial counsel regarding the defense of self-defense, the prosecutor withheld exculpatory
evidence, and the prosecutor used overzealous tactics. By judgment entry filed May 30,
2018, the trial court denied the petition, finding it was a successive petition for
postconviction relief (fifth filing at a minimum), the petition was untimely filed (more than
twelve years late), and the arguments therein were res judicata. We note the trial court
conducted a thorough analysis on appellant's petition.
{¶ 14} As determined by the trial court, appellant's May 11, 2018 petition for
postconviction relief was clearly untimely pursuant to R.C. 2953.21(A)(2). Based upon
appellant's past filings, the subject petition was a successive petition for postconviction
relief. R.C. 2953.23 states the following:
(A) Whether a hearing is or is not held on a petition filed pursuant to
section 2953.21 of the Revised Code, a court may not entertain a petition
filed after the expiration of the period prescribed in division (A) of that
section or a second petition or successive petitions for similar relief on
behalf of a petitioner unless division (A)(1) or (2) of this section applies:
(1) Both of the following apply:
(a) Either the petitioner shows that the petitioner was unavoidably
prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief, or, subsequent to the period prescribed in
division (A)(2) of section 2953.21 of the Revised Code or to the filing of an
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[Cite as State v. Feagin, 2018-Ohio-4221.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Earle E. Wise, Jr., J. -vs- : : MARCO A. FEAGIN : Case No. 18CA48 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2003CR0086
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 16, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellee
JOSEPH C. SNYDER MARCO A. FEAGIN, Pro Se 38 South Park Street Inmate No. 480-240 Mansfield, OH 44902 Allen Oakwood Correctional Institution P.O. Box 4501 Lima, OH 45802 Wise, Earle, J.
{¶ 1} Defendant-Appellant, Marco A. Feagin, appeals the May 30, 2018 judgment
entry of the Court of Common Pleas of Richland County, Ohio denying his petition for
postconviction relief. Plaintiff-Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On December 22, 2004, appellant was sentenced to an aggregate term of
eighteen years to life involving several counts including murder with a firearm
specification. Appellant filed a direct appeal and this court affirmed his convictions and
sentence. State v. Feagin, 5th Dist. Richland No. 05CA1, 2006-Ohio-676. Appellant did
not raise any claims of prosecutorial misconduct or ineffective assistance of counsel.
{¶ 3} On March 25, 2010, a new sentencing entry was entered in order to impose
a mandatory term of post-release control. The trial court sentenced appellant to the
original sentence and added a five year term of mandatory post-release control.
Appellant filed an appeal, raising in part prosecutorial misconduct. This court affirmed
the resentencing, and noted the arguments relative to prosecutorial misconduct were res
judicata as they could have been raised in the direct appeal. State v. Feagin, 5th Dist.
Richland No. 10CA46, 2011-Ohio-2025.
{¶ 4} On April 25, 2011, the trial court denied appellant's motion for leave to file
delayed motion for new trial. Appellant filed an appeal, raising in part prosecutorial
misconduct. This court affirmed the trial court's decision, and again found the arguments
relative to prosecutorial misconduct to be res judicata. State v. Feagin, 5th Dist. Richland
No. 15CA41, 2015-Ohio-5107. Appellant filed a motion for reconsideration. By judgment
entry filed March 7, 2016, this court granted the motion, finding the trial court erred in resentencing appellant in its March 25, 2010 entry relative to post-release control. The
portion of the entry on post-release control was vacated, but the remainder of appellant's
sentence was left intact. By judgment entry filed March 9, 2016, the trial court vacated
the order of post-release control.
{¶ 5} On April 5, 2016, the trial court denied appellant's motion to convey him for
hearing after vacation of sentence. Appellant filed an appeal, raising in part prosecutorial
misconduct. This court affirmed the trial court's decision, and again found the arguments
relative to prosecutorial misconduct to be res judicata. State v. Feagin, 5th Dist. Richland
No. 16CA21, 2016-Ohio-7003.
{¶ 6} On May 11, 2018, appellant filed a petition to vacate and set aside judgment
of conviction and sentence pursuant to R.C. 2953.21 and 2953.23. Appellant made
arguments relative to jury instructions, prosecutorial misconduct, and ineffective
assistance of counsel. By judgment entry filed May 30, 2018, the trial court denied the
petition, finding it was a successive petition for postconviction relief, the petition was
untimely filed, and the arguments therein were res judicata.
{¶ 7} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶ 8} "APPELLANT WAS DEPRIVED OF A FAIR TRIAL WHERE THE STATE
OF OHIO WITHHELD EXCULPATORY EVIDENCE IN VIOLATION OF THE EQUAL
PROTECTION AND DUE PROCESS CLAUSE(S) OF THE UNITED STATES
CONSTITUTION AND ART. 1 SECTION 10, 16 OF THE OHIO CONSTITUTION." II
{¶ 9} "APPELLANT WAS DEPRIVED OF A FAIR TRIAL WHERE THE STATE
FAILED TO PROPERLY INSTRUCT THE JURY AS TO SELF-DEFENSE WHILE
INSTRUCTING IN A GENERAL SENSE IN VIOLATION OF APPELLANT'S DUE
PROCESS RIGHTS."
III
{¶ 10} "APPELLANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF
COUNSEL AT TRIAL AND UPON HIS DIRECT APPEAL WHERE COUNSEL ON
APPEAL FAILED TO RAISE THE CUMULATIVE EFFECTS OF ERRORS OF HIS TRIAL
COUNSEL'S AT TRIAL IN VIOLATION OF THE APPELLANT'S SIXTH AMENDMENT
RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS CONTAINED IN THE UNITED
STATES CONSTITUTION AND ARTICLE 1 SECTION 10, 16 OF THE OHIO
CONSTITUTION, AND AS CONFERRED IN THE OHIO'S FOURTEENTH
AMENDMENT."
{¶ 11} We note the day after appellee filed its brief, appellant filed a supplemental
brief adding a fourth assignment of error. Appellant did not seek leave to supplement his
brief therefore, the additional assignment of error will not be considered.
I, II, III
{¶ 12} In his three assignments of error, appellant claims the trial court erred in
denying his petition for postconviction relief, arguing he was denied a fair trial because
the state withheld exculpatory evidence, the state failed to properly instruct the jury on
self-defense, and he was deprived of the effective assistance of trial counsel and
appellate counsel in his direct appeal. We disagree with appellant's claims. {¶ 13} Appellant appeals the trial court's denial of his May 11, 2018 petition to
vacate and set aside judgment of conviction and sentence. In his petition, appellant
argued the jury was not instructed on provocation, the prosecutor made improper
statements, the prosecutor elicited perjured testimony, he received ineffective assistance
of trial counsel regarding the defense of self-defense, the prosecutor withheld exculpatory
evidence, and the prosecutor used overzealous tactics. By judgment entry filed May 30,
2018, the trial court denied the petition, finding it was a successive petition for
postconviction relief (fifth filing at a minimum), the petition was untimely filed (more than
twelve years late), and the arguments therein were res judicata. We note the trial court
conducted a thorough analysis on appellant's petition.
{¶ 14} As determined by the trial court, appellant's May 11, 2018 petition for
postconviction relief was clearly untimely pursuant to R.C. 2953.21(A)(2). Based upon
appellant's past filings, the subject petition was a successive petition for postconviction
relief. R.C. 2953.23 states the following:
(A) Whether a hearing is or is not held on a petition filed pursuant to
section 2953.21 of the Revised Code, a court may not entertain a petition
filed after the expiration of the period prescribed in division (A) of that
section or a second petition or successive petitions for similar relief on
behalf of a petitioner unless division (A)(1) or (2) of this section applies:
(1) Both of the following apply:
(a) Either the petitioner shows that the petitioner was unavoidably
prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief, or, subsequent to the period prescribed in
division (A)(2) of section 2953.21 of the Revised Code or to the filing of an
earlier petition, the United States Supreme Court recognized a new federal
or state right that applies retroactively to persons in the petitioner's situation,
and the petition asserts a claim based on that right.
(b) The petitioner shows by clear and convincing evidence that, but
for constitutional error at trial, no reasonable factfinder would have found
the petitioner guilty of the offense of which the petitioner was convicted or,
if the claim challenges a sentence of death that, but for constitutional error
at the sentencing hearing, no reasonable factfinder would have found the
petitioner eligible for the death sentence.
{¶ 15} In reviewing appellant's May 11, 2018 filing, we find appellant did not satisfy
the requirements of R.C. 2953.23.
{¶ 16} Furthermore, the arguments raised by appellant in his petition are barred
under the doctrine of res judicata. As stated by the Supreme Court of Ohio in State v.
Perry, 10 Ohio St.2d 175 (1967), paragraphs eight and nine of the syllabus, the doctrine
of res judicata is applicable to petitions for postconviction relief. The Perry court explained
the doctrine at 180-181 as follows:
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 trial, which resulted in that judgment of
conviction, or on an appeal from that judgment.
{¶ 17} The issues raised by appellant in his petition could have been raised on
direct appeal and/or were raised in his previous appeals.
{¶ 18} Upon review, we find the trial court did not err in denying appellant's petition
for postconviction relief.
{¶ 19} Assignments of Error I, II, and III are denied.
{¶ 20} The judgment of the Court of Common Pleas of Richland County, Ohio is
hereby affirmed.
By Wise, Earle, J.
Gwin, P.J. and
Delaney, J. concur.
EEW/db 103