State v. Gomez

2020 Ohio 835

• Court: Ohio Court of Appeals
• Decided: March 6, 2020
• Docket: L-19-1114, L-19-1119
• Status: Published

Opinion

[Cite as State v. Gomez, 2020-Ohio-835.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio Court of Appeals Nos. L-19-1114 L-19-1119 Appellee Trial Court No. CR0201601548 v.

Antwine Gomez DECISION AND JUDGMENT

Appellant Decided: March 6, 2020

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Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

Antwine Gomez, pro se.

PIETRYKOWSKI, J.

{¶ 1} In this consolidated appeal, appellant, Antwine Gomez, appeals from the

May 8, 2019 judgment of the Lucas County Court of Common Pleas denying his petition

for postconviction relief.1 For the reasons which follow, we affirm.

1 Appellant’s conviction was affirmed on direct appeal by this court in State v. Gomez, 6th Dist. Lucas No. L-17-1130, 2019-Ohio-576. {¶ 2} On appeal, appellant asserts a single assignment of error:

THE TRIAL COURT ERRED TO THE PREJUDICE OF

APPELLANT WHEN IT ABUSED ITS DISCRETION WHEN IT HAD

AN ARMED UNIFORMED DEPUTY TO ESCORT AND SIT WITH

APPELANT [SIC] ON THE WITNESS STAND VIOLATING HIS

RIGHT TO A FAIR TRIAL SECURED BY THE 6TH AND 14TH

AMENDMENT [SIC] ERODING HIS PRESUMPTION OF

INNOCENCE.

{¶ 3} Appellant filed a timely petition for postconviction relief on August 2, 2018.

He asserted that having an armed, uniformed deputy escort and stand by defendant while

he was on the witness stand eroded his presumption of innocence protected by the Fifth

and Fourteenth Amendments of the United States Constitution and Ohio Constitution,

Section 16, Article 1. He further asserts there was no scientific evidence to support the

charges and the jury missed certain exculpatory evidence because of the deputy’s

presence. Appellant did not provide any legal support for his claim.

{¶ 4} In its May 8, 2019 judgment, the trial court found that the mere presence of

the deputy does not generally deny due process, State v. Houston, 8th Dist. Cuyahoga No.

60552, 1992 WL 181669, *3 (July 30, 1992), and appellant failed to assert anything to

distinguish his case from the Houston case. Appellant appeals.

{¶ 5} In review of the trial court’s ruling, we find that we can affirm the trial

court’s judgment without reaching the merits of the petition. A trial court may

2. summarily dismiss a petition for postconviction relief if it finds that the petition alleges

constitutional issues that “* * * have already been or could have been fully litigated by

the prisoner while represented by counsel, either before his judgment of conviction or on

direct appeal from that judgment, and thus have been adjudicated against him.” State v.

Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraphs two, three, seven, eight,

and nine of the syllabus. Accord State ex rel. Parker v. Russo, 131 Ohio St.3d 175, 2012-

Ohio-541, 962 N.E.2d 795, ¶ 1. The issues raised in this case could have been raised on

direct appeal but were not. Therefore, we find the petition is barred under the doctrine of

res judicata.

{¶ 6} Appellant’s sole assignment of error is found not well-taken.

{¶ 7} Having found that the trial court did not commit error prejudicial to

appellant and that substantial justice has been done, the judgment of the Lucas County

Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal

pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

3. State v. Gomez C.A. Nos. L-19-1114 L-19-1119

Mark L. Pietrykowski, J. _______________________________ JUDGE Arlene Singer, J. _______________________________ Christine E. Mayle, J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

4.