State v. Lloyd

2018 Ohio 803

• Court: Ohio Court of Appeals
• Decided: March 5, 2018
• Docket: CA2017-07-104
• Status: Published

Opinion

[Cite as State v. Lloyd, 2018-Ohio-803.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

STATE OF OHIO, : CASE NO. CA2017-07-104 Plaintiff-Appellee, : OPINION : 3/5/2018 - vs - :

DAMON SHAWN LLOYD, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 06CR23706

David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice Drive, Lebanon, Ohio 45036, for plaintiff-appellee

Damon S. Lloyd, #A547349, Chillicothe Correctional Institution, 15802 State Route 104, Chillicothe, Ohio 45601, defendant-appellant, pro se

S. POWELL, P.J.

{¶ 1} Defendant-appellant, Damon Shawn Lloyd ("Lloyd"), appeals from an

amended and corrected judgment entry of sentence issued by the Warren County Court of

Common Pleas convicting and sentencing him to serve an aggregate term of 18 years in

prison after he was found guilty of murder with an accompanying firearm specification

following a bench trial. For the reasons outlined below, we affirm. Warren CA2017-07-104

The Murder of David Richardson

{¶ 2} On November 9, 2006, the Warren County Grand Jury returned an indictment

charging Lloyd with murder in violation of R.C. 2903.02(A), an unclassified felony, with an

accompanying firearm specification. The charges arose after Lloyd fatally shot David

Richardson ("Richardson") with his Smith & Wesson nine-millimeter semi-automatic

handgun on the afternoon of Wednesday, November 1, 2006. It is undisputed that the

shooting occurred at Lloyd's residence. Following his arraignment, Lloyd pled not guilty

and waived his right to a jury trial. The matter was then tried to the bench, during which the

trial court was presented with extensive testimony and evidence regarding Richardson's

murder. This includes lengthy testimony from Lloyd, who described the events leading up

to Richardson's murder as follows.

{¶ 3} Lloyd and Richardson had known each other since childhood. In the summer

of 2006, Lloyd asked Richardson, who was having marital and financial difficulties, to move

in with him and his family. Richardson had been a boxer, a bodyguard, and a bouncer, and

according to Lloyd, would brag about beating up people. Richardson, who was wanted for

nonpayment of child support, was also known to carry a .45 handgun with him. During that

summer, Lloyd and Richardson practiced target shooting together on Lloyd's property.

{¶ 4} As the summer transitioned into fall, Lloyd noticed that Richardson's behavior

began to change. Specifically, according to Lloyd, Richardson became moody, "dark," and

more distant, took off more and more, used the house as a "weigh station," and would have

angry conversations on his cell phone. Suspecting Richardson may be using drugs, Lloyd

talked to Richardson, who acknowledged that he had a drug problem.

{¶ 5} On the evening of Sunday, October 29, 2006, Lloyd came home to find his

intoxicated wife "passed out" on the couch with her hair draped over Richardson's lap.

Asked what was going on, Richardson either smiled or laughed at Lloyd with a guilty look

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in his eyes.1 Lloyd, upon putting his wife to bed, then confronted Richardson with a

telephone in one hand and a shotgun in the other and ordered Richardson to leave his

house and never come back. According to Lloyd, Richardson complied with this request,

but was not at all happy about it.

{¶ 6} Between the evening of Sunday, October 29, 2006 and the day of the

shooting, Wednesday, November 1, 2006, Lloyd and Richardson exchanged several phone

calls. According to Lloyd, the phone calls between himself and Richardson on Sunday were

hot and heated on both sides, with Richardson threatening Lloyd and his family with physical

harm. However, by Monday and Tuesday, Lloyd claimed the calls between him and

Richardson had cooled. Unfortunately, the calls again intensified on Wednesday when

Richardson threatened physical harm to Lloyd and his family. According to Lloyd,

Richardson also threatened to burn down his house. Seemingly terrified of Richardson and

what Richardson might do to him and his family, Lloyd testified that he retrieved his

handgun, but did not call the police. When Richardson called back a short time later, Lloyd

and Richardson agreed to have Richardson's father, Ova Richardson ("Ova"), come to

Lloyd's house to retrieve Richardson's belongings.

{¶ 7} Shortly thereafter, Lloyd testified that he saw Ova drive his truck up his

driveway and park in the back of the house. Seated next to Ova in the truck was

Richardson.2 Expecting a beating from Richardson, Lloyd tucked his handgun in his back

pocket, told his wife to stay in the living room, and went into the dining room. The dining

room, which is on the side of the house, can be entered from the outside through a porch

and a wooden door and its screen door.

1. The record indicates that the next morning, Lloyd's wife was heard crying in the shower complaining that she had semen in her hair.

2. The record indicates that Ova's three-year-old granddaughter was also in the truck with Richardson. -3- Warren CA2017-07-104

{¶ 8} After Ova parked his truck, Lloyd yelled at Richardson to leave the property.

Instead of leaving, however, Richardson opened the screen door and started pounding on

the wooden door. According to Lloyd, Richardson then slapped at the door lock with his

palm, thus causing the door to fly open. Richardson then came at Lloyd "at a full rush,"

angry, and threatening to kill him. In response to Richardson entering the house, Lloyd

twice shot Richardson who then spun around and jumped back out of the wooden door and

onto the porch. Already being shot twice, Lloyd testified that Richardson then lunged at

him, thus causing Lloyd to shoot Richardson one final time. Lloyd then closed both the

screen door and the wooden door and told his wife to call 9-1-1. Although the police and

the paramedics were on the scene very quickly, Richardson was already dead with two

gunshot wounds to the chest and one to the abdomen.

{¶ 9} Throughout his testimony, Lloyd claimed that he had acted in self-defense,

explaining that he never intended to kill Richardson, but that he had no other choice but to

shoot Richardson to protect himself and his family. The trial court, however, rejected Lloyd's

self-defense claim and instead returned a verdict finding Lloyd guilty as charged. The trial

court then sentenced Lloyd to serve a total aggregate term of 18 years in prison. This court

subsequently affirmed Lloyd's conviction and sentence on direct appeal, State v. Lloyd, 12th

Dist. Warren Nos. CA2007-04-052 and CA2007-04-053, 2008-Ohio-3383, and the Ohio

Supreme Court declined review. State v. Lloyd, 120 Ohio St.3d 1454, 2008-Ohio-6813.

Postconviction Facts and Procedural History

{¶ 10} On January 16, 2008, while his direct appeal was still pending before this

court, Lloyd filed a petition for postconviction relief. Although represented by counsel,

Lloyd's petition raised many of the same issues as part of his then pending direct appeal.

On July 29, 2008, the trial court denied Lloyd's petition without a hearing. Lloyd did not

appeal from the trial court's decision.

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{¶ 11} On January 4, 2010, approximately 18 months after this court's decision

affirming Lloyd's conviction and sentence on direct appeal, Lloyd filed a motion with this

court requesting his appeal be reopened pursuant to App.R. 26(B). Pursuant to App.R.

26(B)(1), an application for reopening must be filed "within ninety days from journalization

of the appellate judgment unless the applicant shows good cause for filing at a later time."

On April 7, 2010, this court denied Lloyd's motion to reopen his appeal after finding he had

"failed to show good cause as to why his application was not filed in a timely manner[.]"

State v. Lloyd, 12th Dist. Warren Nos. CA2007-04-052 and CA2007-04-053 (April 7, 2010)

(Entry Denying Application for Reopening). Lloyd then appealed to the Ohio Supreme

Court, which again declined review. State v. Lloyd, 128 Ohio St.3d 1414, 2011-Ohio-828.

{¶ 12} On March 12, 2010, while his application to reopen his appeal was still

pending before this court, Lloyd filed a petition for a writ of habeas corpus with the United

States District Court for the Southern District of Ohio. Lloyd v. Warden, Ross Correctional

Inst., S.D.Ohio No. 1:10-CV-169, 2012 WL 70619. As part of his petition, Lloyd alleged that

he received ineffective assistance of appellate counsel. Lloyd also alleged that he was

denied a fair trial because the trial court applied "the wrong law regarding material aspects

of the case[.]" Id. at *2. The District Court denied Lloyd's petition finding he committed

procedural defaults in bringing his petition, as well as a waiver of his claims. Id. at *6. The

District Court also noted that it did "not find a colorable claim of actual innocence such that

there is a basis to excuse [his] procedural defaults." Id. at *7.

{¶ 13} On September 19, 2012, Lloyd moved for leave to file a motion for a new trial

based on alleged newly discovered evidence under Crim.R. 33. As part of this motion,

Lloyd argued that he recently discovered new evidence regarding Richardson's violent past.

According to Lloyd, this alleged new evidence supported a claim of self-defense and proves

that he was justifiably afraid of Richardson at the time of the shooting. The trial court denied

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Lloyd's motion in an entry filed October 24, 2012. In so holding, the trial court stated the

following:

The specific instances of the victim's violence that Defendant Lloyd claims are 'new' are not, in fact, new. Defendant Lloyd had every opportunity to present to the court specific instances of violence that made him fear his victim, in support of his self- defense claim. Additionally, the fact that the defendant has now, five years later, uncovered reasons to fear his victim cannot support his claim of acting out of fear and self-defense at the time of the murder.

{¶ 14} On November 29, 2012, Lloyd appealed from the trial court's decision

overruling his motion. However, finding his notice of appeal untimely, this court dismissed

Lloyd's appeal on December 19, 2012. State v. Lloyd, 12th Dist. Warren No. CA2012-11-

123 (Dec. 18, 2012) (Judgment Entry of Dismissal). Lloyd then filed a motion for

reconsideration, which this court denied. State v. Lloyd, 12th Dist. Warren No. CA2012-11-

123 (Feb. 5, 2013) (Entry Denying Motion for Reconsideration).

{¶ 15} On June 19, 2013, Lloyd moved the trial court to correct his "illegal sentence"

and allow him to "present additional clear errors under criminal rule 52," which, when taken

together, rendered his conviction and sentence void. The trial court, properly construing

Lloyd's motion as a second, successive petition for postconviction relief, denied Lloyd's

motion on August 23, 2013. In so holding, the trial court stated:

[Lloyd] wants to present evidence that the victim was an evil person but admits in his own motion that he was unaware of these other specific incidents both at the time of the shooting and at the time of the trial. Therefore, the Court can conceive of no way in which these prior bad acts would bolster his claim of self-defense. [Lloyd] was allowed to testify as to his fear of the victim and as to the events leading up to culminating in the shooting of the victim.

{¶ 16} Lloyd then appealed from the trial court's decision, which this court denied.

State v. Lloyd, 12th Dist. Warren No. CA2013-09-080 (Mar. 24, 2014) (Accelerated

Calendar Judgment Entry). Lloyd then appealed to the Ohio Supreme Court, which once

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again denied review. State v. Lloyd, 139 Ohio St.3d 1482, 2014-Ohio-3195.

{¶ 17} On November 4, 2014, the Fourth District Court of Appeals affirmed the

decision of the Ross County Court of Common Pleas dismissing Lloyd's petition seeking a

writ of habeas corpus, wherein Lloyd claimed his conviction and sentence were illegal

because he was indicted based on the unlawful testimony of his wife during the grand jury

proceedings. Lloyd v. Robinson, 4th Dist. Ross No. 14CA3452, 2014-Ohio-4977. Shortly

thereafter, on March 31, 2015, the Fourth District Court of Appeals affirmed the decision of

the Ross County Court of Common Pleas dismissing Lloyd's second, successive petition

seeking a writ of habeas corpus, wherein Lloyd claimed his conviction was unlawful and

against the manifest weight of the evidence because of judicial misconduct, prosecutorial

misconduct, and the ineffective assistance of trial counsel. Lloyd v. Robinson, 4th Dist.

Ross No. 14CA3462, 2015-Ohio-1331. The Ohio Supreme Court denied review of both

decisions. Lloyd v. Robinson, 142 Ohio St.3d 1450, 2015-Ohio-1591; and Lloyd v.

Robinson, 143 Ohio St.3d 1419, 2015-Ohio-2911.

{¶ 18} On April 6, 2015, Lloyd filed a motion for re-sentencing alleging his sentence

was void, wherein he challenged the trial court's order requiring him to pay restitution, court

costs, and other fees. Three days later, on April 9, 2015, the trial court issued a decision

vacating its order requiring Lloyd to pay court costs, court-appointed counsel fees, and other

fees upon finding it had "declined to find [Lloyd] has or is reasonably expected to have the

means to pay the financial sanctions * * *." The trial court's decision, however, did not make

any reference to its prior order requiring Lloyd to pay restitution.

{¶ 19} Lloyd then appealed from the trial court's decision arguing the trial court erred

by not also vacating the trial court's order requiring him to pay restitution. This court agreed

upon finding the trial court "acknowledged that it did not intend to order Lloyd to pay any

financial sanctions," including any order of restitution. State v. Lloyd, 12th Dist. Warren No.

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CA2015-05-038, 2015-Ohio-3636, ¶ 9. This court, therefore, vacated the trial court's order

requiring Lloyd to pay restitution. Apparently not satisfied with this court's decision, Lloyd

appealed to the Ohio Supreme Court, which again denied review. State v. Lloyd, 146 Ohio

St.3d 1427, 2016-Ohio-4606.

{¶ 20} On October 15, 2015, Lloyd filed another motion for re-sentencing alleging his

sentence was void, wherein he challenged the trial court's imposition of a mandatory five-

year term of postrelease control. The state, acknowledging that a defendant's conviction of

murder is not subject to postrelease control, agreed that the trial court erred by advising

Lloyd he would be subject to a mandatory five-year postrelease control term if he were ever

released from prison. As a result, on December 16, 2015, the trial court issued a decision

ordering "any reference to post-release control be deleted from the sentencing entry."

{¶ 21} On May 18, 2017, Lloyd moved the trial court to issue an amended sentencing

entry that properly "memorialize[d] the sentence in one single document for compliance of

Ohio Law." Thereafter, on June 28, 2017, the trial court issued an amended and corrected

judgment entry of sentence that contained no references to restitution, court costs, fees, or

postrelease control. Lloyd then appealed from the trial court's amended and corrected

judgment entry of sentence, raising the following five assignments of error for review.

{¶ 22} Assignment of Error No. 1:

{¶ 23} THE LOWER COURT COMMITTED PREJUDICIAL ERROR IN IGNORING

THE RIGHT TO SELF-DEFENSE.

{¶ 24} Assignment of Error No. 2:

{¶ 25} THE COURT COMMITTED PREJUDICIAL ERROR IN IGNORING THE

CASTLE DOCTRINE.

{¶ 26} Assignment of Error No. 3:

{¶ 27} THE LOWER COURT COMMITTED PREJUDICIAL ERROR IN ALLOWING

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PROSECUTORIAL MISCONDUCT.

{¶ 28} Assignment of Error No. 4:

{¶ 29} APPELLANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF

COUNSEL.

{¶ 30} Assignment of Error No. 5:

{¶ 31} APPELLANT WAS DEPRIVED OF A FAIR AND IMPARTIAL TRIAL.

Analysis

{¶ 32} In his five assignments of error, Lloyd challenges many aspects of his bench

trial from which the trial court found him guilty of murder with an attendant firearm

specification. In support, Lloyd claims the trial court erred by not finding he had acted in

self-defense and by not applying the "castle doctrine" to the case at bar. Lloyd also claims

his conviction must be reversed due to alleged prosecutorial misconduct and ineffective

assistance of trial counsel, both of which resulted in him being deprived of a fair and

impartial trial. Lloyd's claims, however, are all barred by the doctrine of res judicata since

he could have, and in most cases actually did, raise these issues as part of his direct appeal

and subsequent motions and petitions before the trial court.

{¶ 33} As this court has stated previously, the doctrine of res judicata provides that

"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 the trial, which resulted in that judgment of conviction, or an appeal from

the judgment." State v. Wagers, 12th Dist. Preble No. CA2011-08-007, 2012-Ohio-2258, ¶

10, citing State v. Szefcyk, 77 Ohio St.3d 93, 1996-Ohio-337 (1996). Res judicata, however,

does not apply to a void sentence for a void sentence may be reviewed at any time. State

v. Vancleve, 12th Dist. Clermont No. CA2016-06-039, 2016-Ohio-7546, ¶ 15.

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{¶ 34} After a thorough review of the record, we find no error in the trial court's

handling of this matter that would render Lloyd's conviction or sentence void. The doctrine

of res judicata, therefore, is clearly applicable to the case at bar. In so holding, we note that

Lloyd appealed from the trial court's amended and corrected judgment entry of sentence.

As the record plainly reveals, that entry merely removed references to restitution, court

costs, fees, and postrelease control in accordance with this and the trial court's various

rulings. As noted by the state, and with which we agree, such an entry does not provide

Lloyd with the unfettered opportunity to challenge any error that he believes may have

occurred prior to trial, during trial, or post trial. Rather, as noted by the Ohio Supreme Court,

although the doctrine of res judicata does not preclude review of a void sentence, "res

judicata still applies to other aspects of the merits of a conviction, including the

determination of guilt and the lawful elements of the ensuing sentence." State v. Fischer,

128 Ohio St.3d 92, 2010-Ohio-6238, ¶ 40. Lloyd's claim otherwise lacks merit.

Conclusion

{¶ 35} In light of the foregoing, because the doctrine of res judicata clearly applies to

the case at bar, Lloyd's five assignments of error are without merit and overruled.

{¶ 36} Judgment affirmed.

HENDRICKSON and M. POWELL, JJ., concur.

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