State v. McCain

2021 Ohio 4337

Opinion

[Cite as State v. McCain, 2021-Ohio-4337.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 29092 : v. : Trial Court Case No. 2004-CR-1865 : MICHAEL D. MCCAIN, SR. : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 10th day of December, 2021.

MATHIAS H. HECK, JR. by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

MICHAEL D. MCCAIN, SR., #A479-429, Pickway Correctional Institution, P.O. Box 709, 11781 State Route 762, Orient, Ohio 43146 Attorney for Defendant-Appellant

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EPLEY, J. -2-

{¶ 1} Defendant-Appellant Michael D. McCain, Sr., appeals from a judgment of the

Montgomery County Court of Common Pleas, which overruled his motion entitled:

“Petition for Post-Conviction Relief, to Set-Aside the Conviction, and Withdraw the Guilty

Pleas.” For the following reasons, the trial court’s judgment will be affirmed.

I. Facts and Procedural History

{¶ 2} In May 2004, McCain was indicted by a Montgomery County grand jury on

murder, aggravated robbery, and falsification charges stemming from an incident in which

he beat a man to death with a golf club in what he describes as a “drug deal gone bad.”

Appellant’s brief at 26. McCain eventually pled guilty to murder and aggravated robbery

in exchange for an agreement that his sentences would run concurrently and that his

falsification charge would be dismissed. In October 2004, McCain was sentenced to 15

years to life for murder, which was ordered to be served concurrently to a seven-year

sentence for aggravated robbery.

{¶ 3} McCain did not file an immediate appeal. Instead, he waited nine years to

seek leave to file a delayed appeal. We overruled the motion.

{¶ 4} In August 2013, McCain filed a motion to set aside his conviction and a

motion for a stay of execution of judgment. The trial court interpreted the motions as

untimely post-conviction relief petitions and overruled them. We affirmed. State v.

McCain, 2d Dist. Montgomery No. 26020, 2014-Ohio-2819 (McCain I). In addition to

finding the motions were untimely, we also held that the claims were barred by res judicata

as they could have been raised on direct appeal.

{¶ 5} McCain then filed a motion with the trial court to withdraw his guilty plea -3-

arguing that: (1) his plea was not made knowingly, intelligently, or voluntarily because he

was mistakenly advised he would be subject to post-release control for his murder

conviction; (2) the judgment entry did not indicate that post-release control was

mandatory for the aggravated robbery conviction; and (3) he received ineffective

assistance of counsel. In response, the trial court filed an amended judgment of

conviction that vacated the post-release control order for the aggravated robbery. It also

overruled McCain’s motion to withdraw his guilty plea. In an appeal from that decision,

we again overruled McCain’s assignments of error in toto. State v. McCain, 2d Dist.

Montgomery No. 26356, 2015-Ohio-449 (McCain II).

{¶ 6} In 2015, McCain filed a motion for resentencing and a motion for records.

The trial court overruled both motions in July 2015, and McCain did not appeal.

{¶ 7} In March 2016, McCain filed a motion in the trial court entitled: “Petition to

Set Aside the Judgment and Vacate the Conviction on the Plea Waiver on the Indictment

for Lack of Subject Matter Jurisdiction and Personal Jurisdiction on the Nunc Pro Tunc

Entry.” The motion was dismissed by the trial court as it was untimely and raised issues

that had been previously addressed.

{¶ 8} In July 2016, the trial court filed an entry which vacated its 2014 amended

judgment entry and filed a new one which, once more, terminated and vacated McCain’s

period of post-release control for aggravated robbery, but did so in a way that complied

with Crim.R. 32.

{¶ 9} McCain appealed again, this time arguing that: (1) the trial court should not

have issued another amended judgment entry; (2) the trial court erred by denying his

petition to set aside his conviction; (3) he was not provided with effective assistance of -4-

counsel; and (4) the plea procedure was erroneous. We again affirmed the trial court.

State v. McCain, 2d Dist. Montgomery No. 27195, 2017-Ohio-7518 (McCain III).

{¶ 10} McCain filed his most recent post-conviction relief petition in January 2021.

In it, he argued that his plea agreement was a quasi-contract into which he did not

knowingly, voluntarily, or willingly enter, due to ineffective assistance of counsel; that the

charges to which he pled guilty should have merged, resulting in only one conviction; that

the mandatory post-release control set forth in his plea agreement was unconstitutional

but his counsel, being ineffective, failed to notify him; and that he was not afforded

sufficient rehabilitation enabling him to be eligible to be released on parole. The trial court

overruled the petition without a hearing in March 2021. The court reasoned that the

petition was untimely and that McCain did not demonstrate that he was unavoidably

prevented from discovering the information supporting his petition in a timely manner. It

further found that even if the petition were timely, the claims raised were barred by res

judicata.

{¶ 11} McCain appeals this ruling.

II. Post-Conviction Relief

{¶ 12} While McCain explores many topics in his brief’s first assignment of error,

the gravamen of the argument seems to be that the trial court erred when it overruled his

post-conviction relief petition.

{¶ 13} A post-conviction relief petition “is a means by which the petitioner may

present constitutional issues to the court that would otherwise be impossible to review

because the evidence supporting those issues is not contained in the record of the

petitioner’s criminal conviction.” State v. Clark, 2017-Ohio-120, 80 N.E.3d 1251, ¶ 14 (2d -5-

Dist.). It is a civil attack on a criminal judgment and is not an appeal from the criminal

conviction. State v. Wells, 2d Dist. Montgomery No. 22389, 2008-Ohio-4932, ¶ 1.

{¶ 14} Under R.C. 2953.21(A)(2), a defendant is required to file a post-conviction

relief petition within 365 days after the trial transcript is filed in his direct appeal. State v.

Moody, 2d Dist. Montgomery No. 27737, 2018-Ohio-2561, ¶ 4. If no appeal was taken,

the post-conviction petition must be filed within 365 days after the date on which a timely

notice of appeal could have been filed – 30 days after judgment. R.C. 2953.21(A)(2).

{¶ 15} A court may not consider an untimely petition unless both of the following

apply: (1) the petitioner was unavoidably prevented from discovery of the facts upon

which the petitioner must rely to present the claim, or the United State Supreme Court

has recognized a new federal or state right that applies retroactively, and (2) the petitioner

shows by clear and convincing evidence that, but for constitutional error at trial, no

reasonable factfinder would have found the petitioner guilty. R.C. 2953.23(A). “Each of

these showings is a jurisdictional requirement and both must be met before a trial court

may consider an otherwise-untimely petition for post-conviction relief.” Moody at ¶ 4.

{¶ 16} We review a trial court’s denial of a post-conviction relief petition under an

abuse of discretion standard. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860

N.E.2d 77, ¶ 58. To constitute an abuse of discretion, a trial court’s action must be

arbitrary, unreasonable, or unconscionable. Ojalvo v. Bd. of Trustees of Ohio State Univ.,

12 Ohio St.3d 230, 232, 466 N.E.2d 875 (1984).

{¶ 17} In this case, McCain’s most recent post-conviction relief petition was filed

out of time. The document was filed January 13, 2021, more than 16 years after the date

of his conviction and approximately 15 years after the statutory deadline for filing a post- -6-

conviction relief petition. Therefore, for the trial court to even consider McCain’s petition,

he was required to demonstrate that he was unavoidably prevented from discovering the

facts upon which he relied to present the claim and that, but for constitutional error at trial,

no reasonable factfinder would have found him guilty. R.C. 2953.23(A). McCain, though,

has not shown any indication that he was unavoidably prevented from discovering

evidence or that the United States Supreme Court has recognized new rights that would

apply to his claim. Hence, the trial court did not have jurisdiction to consider the petition

and did abuse its discretion by dismissing it.

{¶ 18} Further, the claims McCain brought in his post-conviction petition were

barred by res judicata. “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 * * * on an appeal

from that judgment.” State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph

nine of the syllabus. “Thus, the doctrine serves to preclude a defendant who has had his

day in court from seeking a second on that same issue. In so doing, res judicata promotes

the principles of finality and judicial economy by preventing endless relitigation of an issue

on which a defendant has already received a full and fair opportunity to be heard.” State

v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 18.

{¶ 19} “Res judicata does not, however, apply only to direct appeals, but to all

postconviction proceedings in which an issue was or could have been raised.” State v.

Heid, 4th Dist. Scioto No. 15CA3710, 2016-Ohio-2756, ¶ 18. This also prohibits raising

“piecemeal” claims in successive post-conviction motions that could have, but were not, -7-

raised the first time around. McCain III at ¶ 35.

{¶ 20} Here, McCain’s arguments about the merger of his murder and aggravated

assault convictions, the voluntariness of his plea, and the ineffective assistance of

counsel claims were raised or could have been raised in previous post-conviction

petitions or in a direct appeal. The facts upon which he has based these most recent

claims were known to him at the time of trial and are contained in the record. Because of

that, the post-conviction relief petition was also barred by res judicata.

{¶ 21} McCain’s first assignment of error is overruled.

III. Motion to Withdraw Guilty Plea and Merger

{¶ 22} In his second assignment of error, McCain argues that his murder and

aggravated robbery sentences should have merged.

{¶ 23} Throughout his brief, but especially in his second assignment of error,

McCain argues that the trial court erred by not merging his murder and aggravated

robbery sentences because, he claims, they were allied offenses of similar import. He

further asserts that the error makes his sentence void.

{¶ 24} “When determining whether offenses are allied offenses of similar import

within the meaning of R.C. 2941.25, courts must ask three questions when the

defendant’s conduct supports multiple offenses: (1) Were the offenses dissimilar in import

or significance? (2) Were they committed separately? and (3) Were they committed with

separate animus or motivation?” State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34

N.E.3d 892, ¶ 31. Offenses of dissimilar import exist when the defendant’s conduct

constitutes offenses involving separate victims or if the harm caused by each offense is

separate and identifiable. Id. at paragraph two of the syllabus. -8-

{¶ 25} In this case, McCain’s argument was barred by res judicata. “The failure to

merge allied offenses does not render a judgment void, but voidable.” State v. Byrd, 2d

Dist. Montgomery No. 26700, 2015-Ohio-5293, ¶ 10. Challenges to the sentencing court’s

failure to merge purportedly allied offenses are barred by res judicata if they could have

been raised on direct appeal. Id. This issue was known by McCain in 2004 when he was

sentenced, and it could have been raised in a direct appeal; however, he did not file one.

McCain is foreclosed from raising the issue of merger for the first time in his third post-

conviction relief motion. Even if this topic were not barred by res judicata, McCain has not

provided any information in his brief that goes to the merits of his argument. Merely stating

his convictions were allied offenses does not make them so.

{¶ 26} McCain’s second assignment of error is overruled.

IV. Parole

{¶ 27} McCain’s third assignment of error is spent philosophizing about and

criticizing the parole system, the penal system in general, and his particular parole

hearing which was held in 2019. And while it is not clear from his brief exactly what type

of relief McCain wants from this court, it appears, as the State infers in its brief, that he

wants “something to be done to force the Adult Parole Authority (APA) to grant him

parole.” Appellee’s brief at 11. This Court, though, has no authority to interfere with the

APA’s decisions regarding whether to grant parole.

{¶ 28} “A decision whether to grant or deny parole lies with the parole board, which

is part of the executive branch of the government.” State v. Patrick, 164 Ohio St.3d 309,

2020-Ohio-6803, 172 N.E.3d 952, ¶ 36. Parole is not guaranteed, even if an inmate is

otherwise eligible for it. The APA “ ‘has wide-ranging discretion in parole matters’ and -9-

may refuse to grant release to an eligible offender.” State v. Clark, 119 Ohio St.3d 239,

2008-Ohio-3748, 893 N.E.2d 462, ¶ 37, quoting Layne v. Ohio Adult Parole Auth., 97

Ohio St.3d 456, 2002-Ohio-6719, 780 N.E.2d 548, ¶ 28.

{¶ 29} Notwithstanding McCain’s grievances with the APA’s decision-making

regarding his parole hearing, he has not presented any evidence that the agency acted

improperly. He simply believes he has been rehabilitated. The parole board has broad

discretion when it comes to parole decisions and neither the trial court nor this Court can

award McCain the relief he requests – the granting of his parole.

{¶ 30} McCain’s third assignment of error is overruled.

V. Conclusion

{¶ 31} The judgment of the trial court will be affirmed.

TUCKER, P. J. and WELBAUM, J., concur.

Copies sent to:

Mathias H. Heck, Jr. Andrew T. French Michael D. McCain, Sr. Hon. Mary Katherine Huffman