Summary
holding that the doctrine of res judicata precludes a petitioner from asserting constitutional issues in a postconviction proceeding that were not raised "at the earliest possible time"
Summary of this case from Price v. SloanOpinion
No. 81-1010
Decided July 14, 1982.
Criminal law — Postconviction relief — Asserted constitutional issues — Res judicata, when.
O.Jur 2d Habeas Corpus § 40.5.
Res judicata precludes a petitioner from asserting constitutional issues in a postconviction proceeding when petitioner failed to raise these issues in a motion to certify the record previously filed in this court and overruled. ( State v. Perry, 10 Ohio St.2d 175, approved and followed.)
APPEAL from the Court of Appeals for Highland County.
This is an appeal from a judgment of the Court of Appeals for Highland County, affirming a judgment of the common pleas court, dismissing petitioner-appellant's, Joyce Roberts', petition for postconviction relief under R.C. 2953.21.
The facts reveal that on May 16, 1977, two Greenfield, Ohio policemen went to petitioner's residence with a warrant for the arrest of petitioner's sister, Sheila Sims, on a forgery charge. Petitioner refused to allow the officers to enter; they left to get the chief of police. After they returned and all three were present they again demanded entry into petitioner's home. When petitioner once more denied the officers entrance she was informed she could be arrested for obstructing justice. Still refusing to let the officers in, the petitioner was told she was under arrest. The petitioner reacted by closing the door on the officers. Two officers proceeded to the rear of the house and apprehended Mrs. Sims as she was leaving through the rear door. The officers then entered through the rear door of the house and arrested petitioner.
At the police station, petitioner was charged with obstructing justice in violation of R.C. 2921.32(A)(1) and, somewhat later, was charged with resisting arrest, in violation of R.C. 2921.33. Subsequently, petitioner was indicted for obstructing justice. Petitioner's sister was never indicted on the forgery charge.
On June 15, 1977, a jury acquitted petitioner on the charge of resisting her own arrest. Prior to trial on the obstructing justice charge, the trial court reduced the charge from a fourth degree felony to a first degree misdemeanor. Thereafter, petitioner was convicted by a jury of the obstructing justice charge. A motion for a new trial, pursuant to Crim. R. 33, was denied and petitioner appealed her conviction.
On appeal, the Court of Appeals ruled that a conviction for obstructing justice is sustainable only if the person allegedly harbored or concealed is actually convicted. Therefore, since Sheila Sims had not been found guilty of forgery the court reversed petitioner's conviction for obstructing justice. The Court of Appeals continued, however, by determining resisting arrest is a lesser included offense of obstructing justice. The court concluded the record supported a finding that petitioner had resisted the arrest of Sheila Sims and pursuant to Crim. R. 33(A) and App. R. 12(B), the court proceeded to enter a judgment of conviction against petitioner for the offense of resisting the arrest of her sister. The Court of Appeals also remanded the case to the common pleas court for petitioner's sentencing.
Petitioner and respondent-appellee, state of Ohio, filed a motion and cross-motion to certify the record, respectively. On the appeals to this court (case No. 79-240), the propositions of law in the memoranda in support of jurisdiction focused upon whether resisting arrest is a lesser included offense of obstructing justice and whether the Court of Appeals acted properly in reducing the jury verdict of guilty to the lesser included offense. Although both parties stated resisting the arrest of another is not a lesser included offense of obstructing justice, this court overruled both motions. None of the constitutional issues attempted to be raised herein on postconviction relief was asserted or even mentioned in petitioner's earlier motion to certify the record, i.e., on her original appeal to this court petitioner never advocated she had an appeal as of right on constitutional issues.
On June 25, 1979, the petitioner filed in the trial court a petition for postconviction relief pursuant to R.C. 2953.21(A). Petitioner's claims on postconviction relief pertain to alleged constitutional violations resulting from the modification by the Court of Appeals of petitioner's conviction. On September 4, 1979, the petition was dismissed by the trial court. The Court of Appeals affirmed the trial court judgment. In reaching its decision the Court of Appeals concluded, "* * * any claims as to denial of due process and lack of jurisdiction should have been raised in the original appeal. Since they were not, appellant cannot assert them now as she is barred by the doctrine of res judicata."
The cause is now before this court pursuant to the allowance of a motion for leave to appeal from that judgment.
Mr. Rocky Coss, prosecuting attorney, for appellee.
Mr. Thomas R. McGuire, for appellant.
The first issue to be decided is whether the doctrine announced in State v. Perry (1967), 10 Ohio St.2d 175 [39 O.O. 2d 189], precludes this court from reviewing any or all of the issues being asserted by the petitioner in this postconviction proceeding.
Ohio's postconviction relief statute, R.C. 2953.21, provides in part:
"(A) Any person convicted of a criminal offense or adjudged delinquent claiming that there was such a denial or infringement of his rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States, may file a verified petition at any time in the court which imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief. The petitioner may file such supporting affidavit and other documentary evidence as will support his claim for relief."
In construing this statute, this court stated in paragraphs four, seven and nine of the Perry syllabus, supra:
"4. A prisoner is entitled to postconviction relief under Section 2953.21 et seq., Revised Code, only if the court can find that there was such a denial or infringement of the rights of the prisoner as to render the judgment void or voidable under the Ohio Constitution or the United States Constitution.
"* * *
"7. Constitutional issues cannot be considered in postconviction proceedings under Section 2953.21 et seq., Revised Code, where they have already been or could have been fully litigated by the prisoner while represented by counsel, either before his judgment of conviction or on direct appeal from that judgment, and thus have been adjudicated against him.
"* * *
"9. 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 of conviction, or on an appeal from that judgment." (Emphasis sic.)
The petitioner asserts the unique factual posture of the instant action renders Perry inapplicable to the present case since the issues attempted to be raised herein did not come into existence until the Court of Appeals rendered its judgment. Therefore, there was no opportunity to have these constitutional issues fully litigated. We disagree.
As stated above, after the modification of the trial court's judgment by the Court of Appeals the petitioner filed a motion to certify the record in this court which was overruled on April 26, 1979. The constitutional issues petitioner is presently attempting to assert could have been set forth in this prior motion, but were not. The Supreme Court has appellate jurisdiction as a matter of right in cases from the courts of appeals which involve questions arising under the Constitution of the United States or of this state. Section 2, Article IV, Ohio Constitution. The fact remains, however, petitioner did not include these issues, which she could have raised in her original appeal to this court which appeal could have been taken as a matter of right. Whether this omission was a conscious, tactical decision or a mere oversight is immaterial, for Perry unambiguously precludes this court from entertaining these issues now since they could have been raised on appeal.
The propriety of our conclusion is emphasized when one considers the consequences which would flow from allowing petitioners to assert issues which have not been presented at the earliest possible opportunity. Defendants would be encouraged to deliberately refrain from advancing constitutional issues on an original appeal to this court in the hope that their claims would ultimately be allowed on postconviction relief.
Assume arguendo, that a defendant is presented with the option of having his case resolved on the merits in an appeal to this court, however, he fails to raise relevant constitutional issues in his motion to certify the record and the motion is overruled. Were a court to later grant this defendant postconviction relief based on these previously unasserted constitutional issues, the defendant's conviction could be overturned despite the fact that a determination on the merits might reveal the appropriateness of his conviction. Simply stated, allowing a defendant to litigate constitutional issues in a postconviction proceeding, when these issues could have been raised on an original appeal but were not, relegates courts to disposing of the action on technicalities or collateral issues, as opposed to the merits. Essentially, such a system would grant defendants the option of by-passing the original appeal, thus denying this court the occasion of making a fair and impartial determination of the propriety of the trial court's verdict of guilty. Furthermore, such a ruling would forever deny the state an opportunity to argue on original appeal that the trial court's judgment entered on the jury verdict should be upheld. Clearly, this court can not permit parties to so manipulate their course through the judicial system.
Therefore, as explained by this court in Perry, supra, the petitioner is precluded by the doctrine of res judicata from asserting constitutional issues in this postconviction proceeding since she failed to raise these issues at the earliest possible time, i.e., in a motion to certify the record previously filed in this court.
In view of our disposition of the above issue, petitioner's remaining assertions have been rendered moot and need not be addressed herein. Accordingly, the judgment of the Court of Appeals, affirming a judgment of the common pleas court denying petitioner postconviction relief, is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, HOLMES and C. BROWN, JJ., concur.
LOCHER, J., concurs in the judgment.