[Cite as State v. Staats, 2016-Ohio-5913.]


                                         COURT OF APPEALS
                                        STARK COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


STATE OF OHIO                                 :       JUDGES:
                                              :       Hon. Sheila G. Farmer, P.J.
        Plaintiff - Appellee                  :       Hon. W. Scott Gwin, J.
                                              :       Hon. Craig R. Baldwin, J.
-vs-                                          :
                                              :
GARY CYRIL STAATS                             :       Case No. 2016CA00062
                                              :
        Defendant - Appellant                 :       OPINION



CHARACTER OF PROCEEDING:                              Appeal from the Stark County Court
                                                      of Common Pleas, Case No. 2014-
                                                      CR-1179(A)




JUDGMENT:                                             Affirmed



DATE OF JUDGMENT:                                     September 19, 2016



APPEARANCES:

For Plaintiff-Appellee                                For Defendant-Appellant

JOHN D. FERRERO                                       GARY CYRIL STAATS, Pro Se
Prosecuting Attorney                                  Inst. No. A 661-652
                                                      P.O. Box 8107
By: RENEE M. WATSON                                   Mansfield, Ohio 44901
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza South, Suite 510
Canton, Ohio 44702
Stark County, Case No. 2016-CA-00062                                                        2



Baldwin, J.

       {¶1}   Defendant-appellant Gary Cyril Staats appeals from the March 9, 2016

Judgment Entry of the Stark County Court of Common Pleas reaffirming the denial of his

Motion for Post-Conviction Relief. Plaintiff-appellee is the State of Ohio.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   On August 25, 2014, the Stark County Grand Jury indicted appellant on one

count of aggravated burglary in violation of R.C. 2911.11(A)(1), a felony of the first degree,

and one count of felonious assault in violation of R.C. 2903.11(A)(1) and/or (A)(2), a

felony of the second degree. At his arraignment on August 29, 2014, appellant entered a

plea of not guilty to the charges.

       {¶3}   Thereafter, on October 6, 2014, appellant withdrew his former not guilty plea

and entered a plea of guilty to the charges. As memorialized in a Judgment Entry filed on

October 9, 2014, appellant was sentenced to six (6) years on each count. The trial court

ordered that the sentences be served concurrently, for an aggregate sentence of six (6)

years in prison.

       {¶4}   Appellant filed a Notice of Appeal from the trial court's October 9, 2014

Judgment Entry. Appellant's appeal was assigned Case No.2014CA00197 and, on May

5, 2015, was dismissed for want of prosecution.

       {¶5}   On May 18, 2015, appellant filed a Petition to Vacate or Set Aside Judgment

of Conviction or Sentence. Appellant, in his petition, alleged that his trial counsel had a

conflict of interest because he represented a co-defendant, David Staats, in a probate

matter and that his trial counsel was ineffective because he failed to investigate and/or

interview witnesses, failed to prepare for trial, and failed to subpoena records. Appellant
Stark County, Case No. 2016-CA-00062                                                          3


further alleged that his trial counsel was ineffective in failing to file a motion “For a Review

of prosecuting attorney's Certification (sic) of non-disclosure” and failed to share with

appellant discovery material that was marked “counsel only.” Appellant also alleged that

he was prejudiced by the State's withholding of evidence and that his plea was not

knowing, intelligent and voluntary.

       {¶6}   On May 18, 2015, appellant also filed a supplement to his Petition for Post–

Conviction Relief. Appellant, in the same, argued that his right to confront his accusers

and cross-examine witnesses was violated and that Detective Victor George, the

investigating officer, “distorted the true nature of the facts and evidence to fit his agenda.”

Appellant, on the same date, also filed a motion seeking to withdraw his guilty plea.

       {¶7}   Appellant, on May 28, 2015, filed a supplemental affidavit in support of his

Petition for Post–Conviction Relief and Motion for Withdrawal of Guilty Plea.

       {¶8}   On June 26, 2015, appellant filed a supplement to his Petition for Post–

Conviction Relief, again arguing that his counsel had a conflict of interest involving David

Staats, and a Motion for Summary Judgment. Appellant, on July 16, 2015, filed an

“Amendment to Supplicate Motion to Withdraw Guilty Plea”, arguing that the State failed

to comply with an order of discovery. On July 24, 2015, appellant filed an amendment to

his Petition for Post–Conviction Relief, arguing ineffective assistance of trial counsel and

on August 24, 2015, he filed a brief in support of Post–Conviction.

       {¶9}   The trial court, as memorialized in a Judgment Entry filed on September 24,

2015, denied appellant's May 18, 2015 Petition for Post–Conviction Relief finding and the

supplement to the same that was filed the same day, finding, in part, that appellant could

have raised the claims on direct appeal and that the claims, therefore, were barred under
Stark County, Case No. 2016-CA-00062                                                          4


the doctrine of res judicata. The trial court further found that appellant had failed to support

his allegations and that he had been provided with all witness statements by receipt.

Finally, the trial court found that appellant had entered his plea freely and voluntarily with

the effective assistance of counsel.

       {¶10} Pursuant to a separate Judgment Entry filed on September 24, 2015, the

trial court denied appellant's documents that were filed after his May 18, 2015 Petition for

Post–Conviction Relief and the supplement to the same filed the same day, finding that

they were successive petitions and that appellant had failed to prove either of the two

required factors for successive petitions set forth in R.C. 2953.23(A)(1).

       {¶11} Appellant then appealed, raising the following assignments of error on

appeal:

       {¶12} I. THE TRIAL COURT ERRORED (SIC) AND ABUSED IT'S (SIC)

DISCREATION (SIC) IN DENYING THE POSTCONVICTION PETITION AS BEING

SUCCESSIVE MOTIONS FOR POSTCONVICTION RELIEF, AND FAILED TO SERVE

PROPER NOTICE: CIVIL RULE 58(B).

       {¶13} II. THE TRIAL COURT ERRED AND ABUSED IT'S (SIC) DISCREATION

(SIC) WHEN IT DENIED THE POSTCONVICTION RELIEF PETITION WITHOUT THE

FINDINGS OF FACTS AND CONCLUSIONS OF LAW AS REQUIRED BY O.R.C.

2953.21.

       {¶14} Pursuant to an Opinion filed on May 9, 2016 in State v. Staats, 5th Dist.

Stark No. 2015CA00207, 2016-Ohio-2921, this Court affirmed the judgment of the trial

court. This Court specifically found that the trial court’s September 24, 2015 Judgment

Entry constituted findings of fact and conclusions of law and that although appellant was
Stark County, Case No. 2016-CA-00062                                                   5


not properly served with the same, he was not prejudiced because this Court permitted

his appeal to proceed as if timely.

       {¶15} In the meantime, appellant, on November 25, 2015, had filed a “Motion for

Proper ‘Notice of Judgment Entry(s) and Request for Findings of Fact and Conclusions

of Law 2953.21(G).” Appellant, on December 17, 2015, had also filed a “Motion to Amend

Postconviction Relief Petition to Vacate or Set Aside Judgment of Conviction or Sentence

2953.21” and a “Motion for Proper Service of Notice.”

       {¶16} The trial court, as memorialized in a Judgment Entry filed on March 9, 2016,

reaffirmed its Judgment Entry filed on September 24, 2015 denying appellant’s Motion for

Post-Conviction Relief. The trial court found that its September 24, 2015 Judgment Entry

contained findings of fact and conclusions of law and that appellant’s arguments could

have been raised on direct appeal and were barred by the doctrine of res judicata.

       {¶17} Appellant now appeals from the trial court’s March 9, 2016 Judgment Entry

raising the following assignment of error on appeal:

       {¶18} I. THE TRIAL COURT ERRED AND ABUSED IT’S (SIC) DESCREATION

(SIC) WHEN IT DENIED STAATS’ POSTCONVICTION RELIEF WITHOUT A HEARING

WHEN STAATS PRESENTED SUBSTANTIVE GROUNDS FOR RELIEF PERTAINING

TO HIS BRADY CLAIMS.

       {¶19} II. TRIAL COURT ERRED AND ABUSED IT’S (SIC) DESCREATION (SIC)

WHEN IT DENIED STAATS’ POSTCONVICTION RELIEF WITHOUT A HEARING

WHEN STAATS PRESENTED SUBSTANTIVE GROUNDS FOR RELIEF PURSUANT

TO STAATS’ INEFFECTIVE ASSISTANCE OF COURT APPOINTED COUNSEL.
Stark County, Case No. 2016-CA-00062                                                      6


                                              I, II

       {¶20} Appellant, in his two assignments of error, argues that the trial court erred

in denying his Petition for Post-Conviction Relief without a hearing. Appellant contends

that he presented substantive grounds for relief with respect to his ineffective assistance

and Brady violation claims.

       {¶21} However, the issues appellant raises in this appeal either were or could

have been raised on direct appeal or one of his previous appeals and are therefore barred

under the doctrine of res judicata. “Under the doctrine of res judicata, a final judgment of

conviction bars the defendant from raising and litigating in any proceeding, except an

appeal from that judgment, any defense or any claimed lack of due process that the

defendant raised or could have raised at the trial which resulted in that judgment of

conviction or on appeal from that judgment.” State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d

104 (1967).

       {¶22} Appellant’s two assignments of error are, therefore, overruled.
Stark County, Case No. 2016-CA-00062                                            7


      {¶23} Accordingly, the judgment of the Stark County Court of Common Pleas is

affirmed.

By: Baldwin, J.

Farmer, J. and

Gwin, J. concur.