[Cite as State v. Sybert, 2019-Ohio-5280.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio Court of Appeals Nos. L-18-1259 L-18-1260 Appellee Trial Court Nos. CR0199605822 v. CR0199605862
Robert Richard Sybert DECISION AND JUDGMENT
Appellant Decided: December 20, 2019
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Patricia Horner, for appellant.
SINGER, J.
{¶ 1} Appellant, Robert Sybert, appeals the November 5, 2018 judgments of the
Lucas County Court of Common Pleas denying his petition for postconviction relief. For
the reasons that follow, we affirm the trial court’s judgments. {¶ 2} Appellant sets forth one assignment of error:
The trial court committed an abuse of Discretion in denying
appellant’s petition To set aside judgments in case numbers CR 1996-5822
and CR 1996-5862[.]
Background
{¶ 3} On May 3, 1996, appellant was indicted in Lucas County Common Pleas
case No. CR0199605862 for one count of felonious assault and one count of abduction.
{¶ 4} On May 17, 1996, appellant was indicted in Lucas County Common Pleas
case No. CR0199605822 for one count of murder, which included a firearm specification.
{¶ 5} Appellant pled not guilty to the charges, and the two cases were tried
together before a jury from September 16-20, 1996. On September 23, 1996, the jury
returned verdicts finding appellant guilty of murder, with the accompanying firearm
specification, and felonious assault, but not guilty of abduction. Appellant was sentenced
to a term of imprisonment. Appellant timely appealed, and we consolidated the two
cases.
{¶ 6} On appeal, appellant argued the trial court erred: (1) by denying his motion
for a mistrial, which was made in response to certain comments made by the prosecutor
during closing argument; (2) in ruling an attorney could not testify about statements
appellant made regarding his claim of self-defense; and (3) by sealing the jury’s first two
verdicts and keeping them until the jury reached a verdict on the remaining count. On
2. June 19, 1998, we affirmed the trial court’s judgment. See State v. Sybert, 6th Dist.
Lucas No. L-96-337, 1998 WL 351874 (June 19, 1998).
{¶ 7} On August 27, 1999, appellant filed a pro se petition for postconviction
relief in the trial court. On January 6, 2000, the trial court denied the petition.
Thereafter, appellant filed numerous pro se petitions and motions with the trial court. On
June 4, 2014, appointed counsel for appellant filed a motion to dismiss all pending pro se
filings. The trial court granted the motion to dismiss on June 23, 2014.
{¶ 8} On March 7, 2018, appellant, through appointed counsel, filed a petition for
postconviction relief with the trial court seeking to vacate the judgment of conviction and
sentence due to prosecutorial misconduct, perjury and ineffective assistance of trial
counsel. Appellant argued he was prejudiced by the prosecutor’s repeated
misrepresentations that appellant was qualified as a Marine sharpshooter with a .45-caliber
handgun, while in fact, appellant was qualified as a sharpshooter with an M-14 rifle.
Appellant asserted he also suffered prejudice as a result of the perjured testimony of two
police witnesses regarding the location of two expended shells found at the scene of the
murder. In addition, appellant claimed he was prejudiced by the ineffective assistance of
his trial counsel based on counsel’s failure to retain expert witnesses. Appellant
maintained a medical expert would have testified about the victim’s entrance and exit
wounds, and could have disputed the state’s contention that the victim was shot in the back
of the head, while an expert in firearms, ballistics and crime scene forensics would have
3. aided appellant’s self-defense theory and created reasonable doubt as to the location of the
shell casings found at the scene and the sequence of the shots fired.
{¶ 9} In response, the state filed a motion to dismiss/motion for summary
judgment arguing the postconviction petition was untimely and barred by res judicata.
{¶ 10} On November 5, 2018, the trial court issued its findings of fact, conclusions
of law and judgment entry. The court found the petition was untimely and barred by res
judicata, as appellant raised claims which should have been brought on direct appeal.
The court granted the state’s motion to dismiss/motion for summary judgment, denied a
request for a hearing and denied the claims in the petition. Appellant appealed.
Argument
{¶ 11} Appellant argues the trial court’s decision is unreasonable and ambiguous
because it is not discernable whether res judicata applies to his claims regarding perjury
and prosecutorial misconduct.
{¶ 12} Appellant contends after the June 1998 appellate decision, he filed a
petition for postconviction relief “asserting his trial counsel was ineffective and requested
assistance of counsel. The court’s decision was that appellant’s trial counsel met the
standard for effective trial counsel and that his two other arguments would not prevail
either.”
{¶ 13} Appellant submits “[t]his explanation has been carried throughout the case;
however, it fails to explain what the other two arguments were that appellant made at that
time.” Appellant argues “it is impossible to ascertain if those arguments are the same as
4. those presented * * * in the most recent petition. Therefore, it is not discernable if res
judicata applies to his petition arguments regarding perjury and prosecutorial
misconduct.” Appellant also contends since his trial counsel for postconviction relief
dismissed all prior filings, “those dismissals were not decisions on the merits * * * and
res judicata could not apply to those two arguments.”
Law
{¶ 14} “A trial court’s decision granting or denying a postconviction petition filed
pursuant to R.C. 2953.21 should be upheld absent an abuse of discretion; a reviewing
court should not overrule the trial court’s finding on a petition for postconviction relief
that is supported by competent and credible evidence.” State v. Gondor, 112 Ohio St.3d
377, 860 N.E.2d 77, 2006-Ohio-6679, ¶ 58. When reviewing a trial court’s decision to
deny a postconviction petition without a hearing, we apply an abuse of discretion
standard. State v. Calhoun, 86 Ohio St.3d 279, 284, 714 N.E.2d 905 (1999). “An abuse
of discretion connotes more than an error of law or judgment; it implies that the court’s
attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 15} R.C. 2953.21(A)(2) provides that a petition for postconviction relief “shall
be filed no later than one hundred eighty days after the date on which the trial transcript
is filed in the court of appeals in the direct appeal of the judgment of conviction or
adjudication.” However, there are several exceptions set forth in R.C. 2953.23(A)(1) and
(2), whereby a trial court may entertain an untimely postconviction petition.
5. {¶ 16} Under R.C. 2953.23(A)(1)(a), the petitioner must demonstrate either:
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[Cite as State v. Sybert, 2019-Ohio-5280.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio Court of Appeals Nos. L-18-1259 L-18-1260 Appellee Trial Court Nos. CR0199605822 v. CR0199605862
Robert Richard Sybert DECISION AND JUDGMENT
Appellant Decided: December 20, 2019
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Patricia Horner, for appellant.
SINGER, J.
{¶ 1} Appellant, Robert Sybert, appeals the November 5, 2018 judgments of the
Lucas County Court of Common Pleas denying his petition for postconviction relief. For
the reasons that follow, we affirm the trial court’s judgments. {¶ 2} Appellant sets forth one assignment of error:
The trial court committed an abuse of Discretion in denying
appellant’s petition To set aside judgments in case numbers CR 1996-5822
and CR 1996-5862[.]
Background
{¶ 3} On May 3, 1996, appellant was indicted in Lucas County Common Pleas
case No. CR0199605862 for one count of felonious assault and one count of abduction.
{¶ 4} On May 17, 1996, appellant was indicted in Lucas County Common Pleas
case No. CR0199605822 for one count of murder, which included a firearm specification.
{¶ 5} Appellant pled not guilty to the charges, and the two cases were tried
together before a jury from September 16-20, 1996. On September 23, 1996, the jury
returned verdicts finding appellant guilty of murder, with the accompanying firearm
specification, and felonious assault, but not guilty of abduction. Appellant was sentenced
to a term of imprisonment. Appellant timely appealed, and we consolidated the two
cases.
{¶ 6} On appeal, appellant argued the trial court erred: (1) by denying his motion
for a mistrial, which was made in response to certain comments made by the prosecutor
during closing argument; (2) in ruling an attorney could not testify about statements
appellant made regarding his claim of self-defense; and (3) by sealing the jury’s first two
verdicts and keeping them until the jury reached a verdict on the remaining count. On
2. June 19, 1998, we affirmed the trial court’s judgment. See State v. Sybert, 6th Dist.
Lucas No. L-96-337, 1998 WL 351874 (June 19, 1998).
{¶ 7} On August 27, 1999, appellant filed a pro se petition for postconviction
relief in the trial court. On January 6, 2000, the trial court denied the petition.
Thereafter, appellant filed numerous pro se petitions and motions with the trial court. On
June 4, 2014, appointed counsel for appellant filed a motion to dismiss all pending pro se
filings. The trial court granted the motion to dismiss on June 23, 2014.
{¶ 8} On March 7, 2018, appellant, through appointed counsel, filed a petition for
postconviction relief with the trial court seeking to vacate the judgment of conviction and
sentence due to prosecutorial misconduct, perjury and ineffective assistance of trial
counsel. Appellant argued he was prejudiced by the prosecutor’s repeated
misrepresentations that appellant was qualified as a Marine sharpshooter with a .45-caliber
handgun, while in fact, appellant was qualified as a sharpshooter with an M-14 rifle.
Appellant asserted he also suffered prejudice as a result of the perjured testimony of two
police witnesses regarding the location of two expended shells found at the scene of the
murder. In addition, appellant claimed he was prejudiced by the ineffective assistance of
his trial counsel based on counsel’s failure to retain expert witnesses. Appellant
maintained a medical expert would have testified about the victim’s entrance and exit
wounds, and could have disputed the state’s contention that the victim was shot in the back
of the head, while an expert in firearms, ballistics and crime scene forensics would have
3. aided appellant’s self-defense theory and created reasonable doubt as to the location of the
shell casings found at the scene and the sequence of the shots fired.
{¶ 9} In response, the state filed a motion to dismiss/motion for summary
judgment arguing the postconviction petition was untimely and barred by res judicata.
{¶ 10} On November 5, 2018, the trial court issued its findings of fact, conclusions
of law and judgment entry. The court found the petition was untimely and barred by res
judicata, as appellant raised claims which should have been brought on direct appeal.
The court granted the state’s motion to dismiss/motion for summary judgment, denied a
request for a hearing and denied the claims in the petition. Appellant appealed.
Argument
{¶ 11} Appellant argues the trial court’s decision is unreasonable and ambiguous
because it is not discernable whether res judicata applies to his claims regarding perjury
and prosecutorial misconduct.
{¶ 12} Appellant contends after the June 1998 appellate decision, he filed a
petition for postconviction relief “asserting his trial counsel was ineffective and requested
assistance of counsel. The court’s decision was that appellant’s trial counsel met the
standard for effective trial counsel and that his two other arguments would not prevail
either.”
{¶ 13} Appellant submits “[t]his explanation has been carried throughout the case;
however, it fails to explain what the other two arguments were that appellant made at that
time.” Appellant argues “it is impossible to ascertain if those arguments are the same as
4. those presented * * * in the most recent petition. Therefore, it is not discernable if res
judicata applies to his petition arguments regarding perjury and prosecutorial
misconduct.” Appellant also contends since his trial counsel for postconviction relief
dismissed all prior filings, “those dismissals were not decisions on the merits * * * and
res judicata could not apply to those two arguments.”
Law
{¶ 14} “A trial court’s decision granting or denying a postconviction petition filed
pursuant to R.C. 2953.21 should be upheld absent an abuse of discretion; a reviewing
court should not overrule the trial court’s finding on a petition for postconviction relief
that is supported by competent and credible evidence.” State v. Gondor, 112 Ohio St.3d
377, 860 N.E.2d 77, 2006-Ohio-6679, ¶ 58. When reviewing a trial court’s decision to
deny a postconviction petition without a hearing, we apply an abuse of discretion
standard. State v. Calhoun, 86 Ohio St.3d 279, 284, 714 N.E.2d 905 (1999). “An abuse
of discretion connotes more than an error of law or judgment; it implies that the court’s
attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 15} R.C. 2953.21(A)(2) provides that a petition for postconviction relief “shall
be filed no later than one hundred eighty days after the date on which the trial transcript
is filed in the court of appeals in the direct appeal of the judgment of conviction or
adjudication.” However, there are several exceptions set forth in R.C. 2953.23(A)(1) and
(2), whereby a trial court may entertain an untimely postconviction petition.
5. {¶ 16} Under R.C. 2953.23(A)(1)(a), the petitioner must demonstrate either:
(1) the petitioner was unavoidably prevented from discovering the facts necessary for the
claim for relief, or (2) the United States Supreme Court recognized a new federal or state
right that applies retroactively to individuals in the petitioner’s situation. If one of those
two conditions are met, the petitioner must show that but for the constitutional error at
trial, no reasonable finder of fact would have found him guilty. R.C. 2953.23(A)(1)(b).
Under R.C. 2953.23(A)(2), the petitioner must claim actual innocence based on DNA
testing.
{¶ 17} Another restriction on the statutory procedure for postconviction relief is
the doctrine of res judicata. State v. Sidibeh, 10th Dist. Franklin No. 12AP-498, 2013-
Ohio-2309, ¶ 12. “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 the trial, which
resulted in that judgment or conviction, or 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. To
avoid the doctrine of res judicata, the claims in the petition for postconviction relief must
be supported by competent, relevant, and material evidence, outside of the trial court
record, which evidence did not exist or was not available for use at the time of trial. See
State v. Braden, 10th Dist. Franklin No. 02AP-954, 2003-Ohio-2949, ¶ 27.
6. Analysis
{¶ 18} A review of the record shows the trial court found appellant’s March 7,
2018 petition untimely, and the exceptions under R.C. 2953.23(A) did not apply. We
agree.
{¶ 19} Appellant’s petition was filed nearly 20 years after our decision was
rendered in his direct appeal. Although appellant averred in his March 14, 2017 affidavit,
which was attached to his petition, that he “did not discover the medical reports of the
gun shot to the head until 2010 as it was buried in paperwork that I had overlooked,” this
does not demonstrate that appellant was unavoidably prevented from discovering the
facts necessary for his claims. The record reveals the medical report was an exhibit at the
1996 trial, and appellant “discovered” it in 2010, some eight years before the petition was
filed. Thus, we find R.C. 2953.23(A)(1)(a) did not apply. We also find R.C.
2953.23(A)(1)(b) did not apply, as appellant did not argue a new federal or state right
applies retroactively to individuals in his situation. Lastly, we conclude R.C.
2953.23(A)(2) did not apply since appellant did not assert a claim of actual innocence
based on DNA testing. Accordingly, we find the trial court did not abuse its discretion in
ruling appellant’s successive petition for postconviction relief was untimely.
{¶ 20} The trial court also found the claims in the petition were barred by res
judicata as the claims were or could have been raised at trial and/or on direct appeal. We
7. {¶ 21} Appellant’s claims of prosecutorial misconduct and perjury rely on material
in the trial court record and could have been raised at trial or in his direct appeal.
Appellant’s claim for ineffective assistance of trial counsel based on his counsel’s failure
to retain expert witnesses could have been raised in his direct appeal. Therefore, we find
the trial court did not abuse its discretion by concluding that the claims in appellant’s
petition for postconviction relief were barred by res judicata.
{¶ 22} Accordingly, we find the trial court did not abuse its discretion in denying
appellant’s petition for postconviction relief, and appellant’s assignment of error is found
not well-taken.
{¶ 23} On consideration whereof, the judgments of the Lucas County Court of
Common Pleas are affirmed. Costs of this appeal are assessed to appellant pursuant to
App.R. 24.
Judgments affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
8. State v. Sybert C.A. No. L-18-1259
Mark L. Pietrykowski, J. _______________________________ JUDGE Arlene Singer, J. _______________________________ Thomas J. Osowik, 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/.
9.