State v. Hairston

2011 Ohio 3844

Opinion

[Cite as State v. Hairston, 2011-Ohio-3844.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96437

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

CHARLES C. HAIRSTON DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Common Pleas Court Case No. CR-331664

BEFORE: E. Gallagher, J., Blackmon, P.J., and Rocco, J.

RELEASED AND JOURNALIZED: August 4, 2011 2

FOR APPELLANT

Charles C. Hairston, pro se 6111 Butler Avenue Cleveland, Ohio 44127

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor BY: Katherine Mullin Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113

EILEEN A. GALLAGHER, J.:

{¶ 1} This is an accelerated appeal authorized pursuant to App.R. 11.1

and Loc. R. 11.1.

{¶ 2} Charles Hairston appeals from the trial court’s denial of his

motion to void judgment. Finding no merit to this appeal, we affirm the

decision of the trial court.

{¶ 3} Primarily, we note that Hairston’s petititon, which can only be

classified as a petition for postconviction relief, was untimely filed. See

State v. Reynolds, 79 Ohio St.3d 158, 1997-Ohio-304, 679 N.E.2d 1131; R.C. 3

2953.21(A)(1); R.C. 2953.21(A)(2). Moreover, Hairston has made no attempt

to establish the applicability of an exception that would allow the trial court

to consider his untimely petition. See R.C. 2953.23(A)(1) and R.C.

2953.23(A)(2). Accordingly, the trial court lacked jurisdiction to entertain

his petition for postconviction relief. State v. Dugger, Franklin App. No.

06AP-887, 2007-Ohio-1243; State v. Russell, Franklin App. No. 05AP-391,

2006-Ohio-383.

{¶ 4} Even if we were to disregard the above, the arguments raised in

Hairston’s first, second, and third assignments of error are all issues that

could have been raised on his direct appeal. See State v. Hairston (1997),

121 Ohio App.3d 750, 700 N.E.2d 930. Accordingly, all three assignments of

error are barred by the doctrine of res judicata. See State v. Saxon, 109

Ohio St.3d 176, 2006-Ohio-1245, 826 N.E.2d 824; State v. Rodriguez,

Cuyahoga App. No. 95055, 2010-Ohio-4902; State v. Goldsmith, Cuyahoga

App. No. 95073, 2011-Ohio-840.

{¶ 5} Based on the foregoing, Hairston’s first, second, and third

assignments of error are overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal. 4

It is ordered that a special mandate be sent to said lower court 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.

EILEEN A. GALLAGHER, JUDGE

PATRICIA A. BLACKMON, P.J., and KENNETH A. ROCCO, J., CONCUR

Appendix

Assignments of Error:

“I. The trial court erred denying appellant’s motion without a hearing and failure to merge the convictions on Counts 20 and 46 violates Fifth Amendment Protections against Double Jeopardy.”

“II. The trial court erred in denying appellant’s motion as appellant was sentenced pre-Foster, which required judicial findings in order to impose a sentence beyond the minimum.”

“III. The judgment of conviction is void wherein the conviction was contrary to law wherein Ohio courts have consistently held that R.C. 2907.04 is not a lesser included offense of R.C. 2907.02(A)(2).” 5