f l e...vf ny as perjured was llvis tdssolxver, through made csontaat s:i:.tl the aeil. the w lctie,...

IN THE SUPREME COURT OF OHIO

State of llhio,

Appazls,

Ve .

Ritkey L. Pound, Sr.,

APgellnnt

^^ ^^,,5.:

. ..I^^ .̂iNAL

1 2-1445

On Appeal from the .]udBemex

Ca

triat in Court of Appeals

The Montgomery County Court of

Appeals for the 3ecoad Appellate

CA 24789 & CA 24980

MEMORANDUM OF SUPPORT OF JtIRISUICTI(?N FOR APPELLANT NZCKEY L. POUND SR.

Miahelle D. Philligs, Asst.

Montgomery County Prosseuto

P.O. Box 972

DtSy Lo«, y Ohio 45422

Counsel for Appellee

Zdiokey L. Pound, Sr. 350-806

P.O. B

ATx^^

^NTEREST AND INVOLVES A

STA'^^ME14T OF CASE A=t^D FA

FIRST PRQFOÎTTf9N OF LAW

OF OR^'.A"T PUBLIC OR t»E

5TITUTI€^ÂL QUESTION

WHf N AN APPE7JA.ET'S CC3V11C"t'IQN IS BASED ON KNOW6 ÊPI3UR^:s^-^'^.S'"^.Mt?E^'^,

. D t^^'^'k;R ^`RIA^, AN APPE^NT ;^^tt^DUG^ NtJRELI,^^LE ^FF^ÂVITS PRO`+I^ft Tta^ PERJURY Atd€'^ ACTUAL. TNt^^ÊffOF THE ^HARGE, A TkI^^ ÔURV^ UFt^SAL TQ REVERSE THE A P1ÊLLAN2'`SCONVICTION VItSt,AM THE APPELLANT'S RIGHT TO A PAIit TRIAL A140THE DUE PROCESS OF *cKt^ UNDER aHE 51H AfaD 14111 A^^^4DNENTS OT' THE

Ei^'TO^3 AND ^l^:"^T.CLO tt SECTION 16 O^` ^'fft OHIO, ^ '^Ct I3.S NST y^! e{ v$ ^y^( y^ .̂gâ^T E 6! A+i.itA^^Z. k

°£IO"d 43r LAW .9

,iFti A TRIAL COtlRT IS PRE>EN'ÊD WZTti S#JFFZCIE14T OPERATIa'E FACTSAND AFFIDAVITS IN SUPP€JRT, Of THOSE FAC'^^, IT SHtlU'Ô HOLD ANEVIDLnÂRY A"- RISO ON TaOSE FACT$, 49D THE ISSUE OF UMVO3DABLEDELAY. THIS IS COMPOUNDED £Y THE FACI' THAT THE COURT VAS L1ktABLb;TO RENDER A OtC,lSION FOR 3 YIARS+ tAt^^t TO aOLD SUCH A REARINQTO CORRECT A MISG^^RIA4E OF JUSTICE VICsLAT^$ AN AP1?ELtANT'SCONSTITUTIONAL i^^GW&S UND1^R THE 5T'H Ai^t3 14TH ^ÊNDM'CWTS Of Tt3EU.S. CONSTITUTION AMD ARTZCLE I,^^CTZON 16 OF THE OHIOCONsTt`TUTIO14.

THIRD ?10s<

WliE1kAit APZ'ZLLA^^"'^ SENTGNCE DOES tx43't' ^..'pNZORT 6dIT't3 At.i. M A^.eAT{3PSENTENCING PROVISIONS , IT 15 VOID AS A MATTER OF LAW. UNDER THEPR£9TEC'tÌO^ OF THE DOUatE ,3EOPXRD'f CLAUSE AND ,e 341.2Sr ACi APt"ELI.ANTtS

lUS'^ ^^ MERGED FOR OFFE:IS&^S Tl^= A'^XSZ FROM THE SAMZ€i^RE, ÔMA"I'k"TED WITt3 A a1144iwE AC2SO^ AND ANICUSh

Of ^^Y CO[IRT TO MERGE . E OFFENSES VIOI.,^TES THEVT`S IZOHTS UNDvR T.'HE STH AM® 14'?"H AMEi^DMENT'^+" OF THZ^t^STITUTT9N ANA ARTICLE 1o SECTIONS 10 & 16 Of THE OHiQ

ITUTION. .11-14

CURTZFIC" OF SERVICE

APP' DTX STATE V POUND ÊCOSO JIS°

»Z4

.:l,^

F AekiAk.s JULY 27, 2012i

th the mandates of th

g tho UaS0

and ot'^^^ ^ôrt^^^ ^^tigens

mh bog ro$ealc^^^^n by thi

;d by thi

Should a oo"i^tion, ik-, a orta3,ta1 aase be alLoved to staod when. ., _......_ . t_ ^w.. r . ^^^^

.a knof.m by the Tri°al Ccsurt,

when 4i{,^'N (.,$%1Y

5th and

$ ^^^Îon

Sfa6J}y.' (3î oite"+} unS`.^.$:L#.y:G.

), does res judi.ôta bar those patita

ûpp^rtad by 4ddit3^na1 nQW avideaz^ê not pcesented

ye i.mgos3tiop 0

a tair Trial and tbu^ Du5th end 14th Asaotadwer^s Of the E3,a. Corestitatis?n and Arti:a1e

that. the orsnv3.

16 of the Ohio Constitution

Appellant

tha Due Frca"$r

14tk! A^êndment^,s to the V»S< COn:;t^ûti" an

of CpUstitc^tional question

urt of Appeals' detition in

as it v+wu3.d bo iI1^^laal

fool boutid by the .3uri^^ru,

t "^nited States Supreme Cou

tutiona1 rights

,,,,t9.on 16 of the Ohio CcrmstitrstiOn?

When it is 00 the; beon used, and additional evidence t

that perjury$ is az^ ^vident.3a^^ ^^^rinato develop that evidence to

,Justioe that has atesstvred? When a h^^rt

App^olls.at's Casostitutianal rights ^nied14th . nciments of the U.S. Gtmatttasfcion

the Ohio Catistitutican2

Constituticrn. undor the 5th and l4th Amezdments and Artia io I

16 of the G1hio Constitution?

u

Court of App"1s violate the Due Prooess Cl.aus^^

^Wa as ttt^^ fal1u

.dableR' paosa't this . trary 4,ealet

When an Appoilant Mas an una .. ^^sed

ostoppol., sad the Due Process Ciaust$ Of the 5th And 14thone ^^^k toter sua sgantat does euoh arealitig viol

h the Court of Appeals grsOts, Only

nts af the U.S. Constitution and Article 1, Section 16

Ohio Constitution?

Theg^ Constitutiona

Appellate Districts

Court of App+et;ls, albeit

this Cou

the oeour

whi:e&t

Given this fact

do Ohiaa

mis^^

one cannot

brought to ligbt caoqui,s^od to the fntare

the miscarri^gaiAren` t

undor both tho 5th andand A^tiele 1) Seet#.on 15

unanswered, as

ca Jusisprudencae of the Second

nstf:tct

of

ful aonsid

p

by

apd result in

tate.

diction

(2)

memorandum, this Court should ae.cept ,jurisdiaticsn and answer these

Constitutional questions, not only to protect this Appellant's rights

and undo his wrongt'ul eonvietion, but to prevent the erosion of Law

in this state for all phioans.

STATEMENT OF CASE AHD FACTS

An indietment was handed down by the Montgomery County Grand

Jury on April 25, 1997, indict3.ng this Appellant, as the result of

the death of Tim Krimm on July 13, 1996, in whie.h, as the results

of shots fired at iCri:m house, he was killed. Two other persons

also inside the residecsce at the time of the shooting, which

rosulted in additional charges of Attempted Murder and Felonious

Assauit, to whieh the Grand Jury attached weapons spec3.ficatiaans

^hargos, and also indioted the Appellant for dischmrging

a weapon into a habitation

Tim Krimm was k3.l.led by a shot

the ideratitl of the person who f

I. as weapons under disability.

n Assault Ri.fle¢ and

d that wespom is the contested

only at trial, but for purposes af this Appea

Appellant tes d at trial, and stesd.fastly maintains, that he

did not have 3.o his possession or f+i ace that weapon on that day.

The person who did fire that weapon that day is the individual

>qnsibte for the death of Tim Krimm.

During the Jury Trial, Angela.Fioutz, the girlfriend of State's

witness, Elvis Wooliver, cai,led in to the Judge°s chambers to notify

Gourt, at the witnOlss,s ins3.stanee, that he was being coerced

to give false and perjured testimony against this Appellant, howevez,

his testimony was allowed to stend, and no corrective instruction

was issued.

(3)

The jury convicted this Appellant based on the use of that

perjured testimony. The Court sentenced the Appellant ta multiple

Ccans*c+at3.ve terms of incarceraticano despite the fact that all the

char8es actually resulted frtam o- si.ngle action of firing a weapon

into a habi.tation, irregardless of who aotualiy fired that weapon.

A aantencing memorandum opposing the 5.wpositiou of conaecutive sentences

was filed with the Court, yet the Defendant's Opposition Brief was

ignored, and a total a$grsgata aentenco of 43 years to Life was imposed.

After Direct Appeal was takeA, this Patitioner f3.led the fir

four Post-Conviction patitie>rss, whie'h focua cn the perjured tasti.m

Elvis G7ocslivar, as to the true identity of the person who actua

y

red the Assault Rifle on the date in queation. Eaah petition containe

add:i:ti.omal affidavits and evidence, which each preceedi.ug one did

not conta.in.

The final petition for relief, which eonta3nrad all of the evidence

aecumu2ated during this Appellant`s incarcera.tion, was submitteJ

to the Court with the assistance of an iramatee law cierk; all previous

petitions having been submitted blindly by the Appellant, who did

not tenaw that any adverse ruling c.auld be appealed. It was noticed by

that c1ark that a previously filed petition had not been ruled upon.

After the trial Court denied relief on both petitions on August 5,

2011 and August 8, 2011, a timely appea.l was taken. The trial Court

opposed any transfer of the original trial transcripts for purposes

of Appeal, requiring this Fippeilnnt to seek an order to do so from

this Court. The Appellee missed its deadline for filing, and the

Appellate Court sua sponte extended the filing deadiine,and reordered

(4)

a response. An uaaoppose^.̂ Motion for CYral Arguments was filed and

granted to this Appellant on April 19, 2012, but one week .iate.r,

on April 26, 2012, with no e.xpla.nation, the Appeals Court reversed

elf, and denied the Oral Argument request and a subsequent 14otion

for Re.considerationa

On July 27^ 2412, the Court of Appeals affirmed the denials

of relief by the Trial Court of the petitl,oras us3.ng rnip f.t'

previous jurislsrudence, campleCel.y ignoring Mandates of both t

Court and Fed.era1. Gonmt

Suprnme Gour. t= It is tla

in

as set fartli by the United States

e improper rulings whfeh form

basis of this Appea3 gby L1•bl:oh this Appellant reqmects the

n of this Court uo re the Secc+nd District Court of

to properly follow Ganstitutl.onai Law in criminal sppeals.

T PROPOSITION OF LAW:

When an Appellant°s eonrTiastion is based on known perjured

testirnony, and aiter Tra.al an Appellant producea multiple reliable

affidavits proving the perjury and Aetua1 Inneaeence of the charge,

a TriaL Court's refusal to reverse the Appei9.ant's convintion

violates the Appellant's Right to a Fair Trial and the Due Process

of Law under tite 5th and 14th Amendments of the U.S. Constitution

and Article 1, Seotion 16 of the CYnio Constitution.

It should be clear that what :onviction o

Appellant on the Aggravated Murder Charge l.n the death of Tim Krimm

was the testimony ;iven at trial that the Appeila.n; kais

possession on that fateful, day, the Assault Rifle, compounded by

the allegation that he was the person who f:ir d t-hat .,re.apon. Tt was

established as fact that the victim, T im Krimm, eiied' as a result

of a bullet to the head from an Assault Rifle. Therefore, whoever

(3)

s^,tua7;ly possessed and fired i:l^,e Assault Rifle was the person responsible

for the death of the vi,etim. The State, and later ttie Court caf Appe.al.s,

ed that it does not matter who taaci the Assault R3:

Appellant "c-cauld" hhave been Eound guilty Of CGmpl.ictty, or Alxdin$

and Abetting. This contention is redundant, because the fact is set

in stone ttaat ti*e Appellant was convicted of Aggravated Murder a.s

the prine3.pal offender, which even the Court of Appeals claimed an

direot appeal 15 years ago. If this Appellant was the principal

nder for purpcsses of Dtroot Appeal, then be must remain as

principal offender for purposes of these T'ost-eonvict3.pn peti.ti.ons

and resulting Appeals<

uestion of Elvi

3,ntiall.y raised at trial

his

vF ny as perjured was

Llvis tdssolxver, through

made csontaat s:i:.tl the

aeil. The w

lCtie, Ak3lgeia 'tiq3i,X.

original Trial 3udge, Gowdqwn,.

c'hambera:' At that con.Eerexace,

h a con: ; was beld in

was revealed that Elvis Wool:3.vor

was testifying untrutb€ully as to the true identity of the person

who iired the assault rifle, and who is ultimately responsible for

the death of Tiac -lCr3.cet. Rather than declare a mistrial, Judge towdown

allowed the jury to be improperly tnflueneed by this perjury, the

Prosecutor did not ¢osredt it, and the Jury was inElueneed by #.t,

and aonvioted this Appellant improperly and wrongfully.

This Appellant continued over the last 15 years to add to the

proof of this perjury. Eaeh time he accsumulated more affidavits,

he filed another Post-Conviation, each being denied. In this last

Appeal, the Second District Court of Appeals concluded that relief

should be denied for two reasons, Res Judicata, and the Appellant's

* T.p. 614 Lines 1-6

(6)

ure to a.pgea.l the prev*.

proper.

Re;z .T:aels.ca.ta i:> ma.r1e Ina.ppLicab2.e to this case becca.uaei vhile

the ultimate issue could have been, and in fact was, raised on Appeal

not have been supperted by a:aae new affidavits accumulated

by this Appellant. The Sacond District Court of Appeais also erred+tiaA

in fine33.n^4tbe AppelI.antWs failure to appeal prior denials of relief

preczlrzde appealing this denial. Not only does this defy logic, as

each proceeding is itself unique, based on the Law and evidQreom in

suppurt, but pradominantly, the Court of Appeals' determination fails

no statutory requirement for this proposition of Law exists.

Trial court and the Second Dxstricst Court of Appeals

nared we]li-aatablitihae4 Federal Law tsoncerning the use of perjurecl

imony to obtain the oonv#,cstiono Nelthar the Tria3. Court nor the

Court of Appeals addressed the F41eral question of CoaYstitcational

Law raised by this Appellamt. U.S. v NQrris 300 tJS 564 was citad

for the Legal Definition of Perjury. Napoe v 111icots 360 US 264

was cited for the prrapos9.ti Prosesautssrs are required to corrgct

perjured testimony, wk2#.ch qlaariy was not done in this ease. U.S.

v Qi.glio 405 US 150 and U.S. v Agurs 427 US 97 were cited for the

oFosi„tioaa of law that conviet.ions based on perjured testimony

be set aside if the false tastimony aould have in ANV reasonable

likelihQod affected the judgement of the jury. It is crystal ci.ear

that the perjureA tesCianotty affected the jury in this caae, as the

jury based its deeision to conv3,ct this Appellant of the Aggravated

Murder of Tim Kriuam, who died as a result of being shot by an assault

rifle, and the State's wi.tnessy ;Elvis Wooliver, testified falsely

that the Appellant wielded that weapon,

(7)

^^ 514 US 419a for

luty to ^^^rn ^^ ^

on be.:at.^ of tho

^^^êed

lue", siak

, shauld hoê eorr^^^^

^^ but did not do so, Wooliver testified the State

told him to say Appellant fired assault rifle or get life himself.

6asea^^ âl;êf+*n an improper oppli,

^ôu^^

of this

or

a Trial Courl

bIl$b*d U*S:

i^vita in suppoon th

, ^ûndod by tik for 3 years.

Usti*

s 5th

y refused

c^^ ^ ^^âb7.ethe Court was unable

ure to hold saaohvieliat^^ an Appollon

14th Am"d" ts of thehe Oh3o

* T.p. 620 Lines 13-25

ônar^^^ôn ^^titio" to in itself an Abusa of diszar^tiovk and violates

Triai. ^^^^ should

k'%n 260 doys«

y +

ead In sithe

,* dA

took t

would have and should havo boon hold#

any ^^suto that t war

t mc^^^ ^^^^^^^^^ô method to

w ^^^tioult for ^^^ Court to resolve.

sible hearings should ho

A^^^V

old

iôble de$agr, a k^^^ring on that ^^^^^ should ^ô bolon h ldAppo13.aUt SUbmittQa

^^ Petiîon& to allow the A^fiâte to testtfy

the Court ^^^^^ oath as to tho

if pro^vea tra^^ ^ would have entitled this ^PPOll4r+t tO

Tho fîturs of tô Trial Coc^^^ to a^^^^^^ either or both of

hearings, SU;Vorted v^th substat^

^^^ênot io suppqrt of this APÔI?lant"S

rfg^^s undtr both the ^^^tt and r^^âl G,.oasstitut

^ ^âring should have been hold in the inBoa

substantial ^llogations of Aaatâl T;nvoasaa^^

^^^^

^^natituti : "^

^^^^^^^ ^

Ju^îoe

A►ppolâut has 3^ôn t.^ prison fOr 15 YORrs, ah,^^ôd. 004 400ri4t0d

he did not ômmic^ (Muz^^^) It I

1 2953.23 to allow an Avenue in 14W to

years;

y ^ô legislative

su^^ a situation

Constitutional Law u^^^^r United ^^^^ e$

v T "ye "0 $04 US 1_

ry ^^^lring osa

The ^^^^^^ of the factual diu^^^^ v -Va State

y supported by

rd as a who1e;

ac^^^^ ^ôo^^^^ ^mployed by tho State COerr^ ^^s R*t

adequate to affos^d o full and fair bea

Ub^tantial 43

court ^^^^^^^

these criteria were d*va'ôp*4 for e^^^^^^âlxi^ ^^^^

grant as hearing at the Federal lesr*1, they are a direct

o^ what the H3gh Court f0*14 t^ ^r*Pur of ^

did

Appiy3nS these crittrid to the caas,

newtlywd3soovered aviêne^î

y dowr^ôpe,

(10)

The randerly ing it tho

obtained by perjured testimony has not been resolved, o

addressed;

by the 1060Vd*

:^ ^^

givon to the Trial Court du

chaotbars by the 1

substantial a:

ted by multigrole affidaviti

n

nted, and t ffit2s $¢5on

his

oak ]Later;

opportunity was afforded the Appellant at aay faot bear:

Given these faetas this Court Should UOC sit idly by and wait

the fed^âl Court to order a hearing #O this case to o^^êet the

zarri.ane of Justios whi+ah has occurred. A1l o^tisens of Ohio wiI1

this Court is Oqus11y ifttert$ted in

..Sa^^îce, and is willing t

sustaining of the Propos

THIRD PROPt?STT1014 O8 LA

W'hen an App,all,.alx& provisi

offenses

covndtzct and were eammitted with a s3s^^ô ar-tiOntàilur^ ^f the Court to merge these offenses v

Appellant's rights under the 5th and 14th Amendment,6 and Article I, êations 10 & 16 of the Ohio

Ff porjury was

jud$e caawdown"s

Houtzi

eyed at al;i#

of oaw1y»d^sooverad evidanot,

held. An UttOPPO

nee of Jea^^^4i-at

does not zompart with all mandatory

void as a matter of t,aw*

Jeopardy Clause and 2941>250 an Appellant

nt

fu1 cônvf.ctimn by its

ourt has hald that the failure to rucrge ail,ied

,ene3ns is Plain error. Sec State v Onderwood 124 Ohio St.

65, 2010-Ohio-1. Aa sueh, Appellant asks this l3onorabis

Court to excreisa its discretion to c

impesed,

unlawful sentence

R.C. 2941.25 Ohio's statute for multiple offenses provides:

Where the same conduet by ttis Defendant uan be construed toconstitute two or more allied offenses of similar import, theindictment or information may contain eounts for all such offensesbut the Defendant may only be convicted of one.

When determining whathor two offenses are allied offenses of

a similar import subject to merger under R.C. 2943.25, the Ohio Supreme

C¢ur.t held in State vJolnsou 2010°Ohio°6314 that the eonduct of

aecussd must be eonsidcred and that a Court must first decide

whether it is possible to eommit one offense and to commit the other

with the sama conduct. Id,

In the case at bar, it should be obvious that all the charges

this Appellant was ehargQd and eonvteted of, including the wrongful

Aggravated Murder, wonviction, resulted from the same conduct and

action, to wit: Discharging a firearm into a habitation. This conduct>

the sole couduct engaged in that day, resulted in every single eh$rga

with the sole exception of the weapons specification and the Weapon

Under Disability charge, which was the only cbarge merged by th4

Gourt at the onaet.

Under the Law as interpreted by this Court in J0husen -4 Undetwood

and the United States Supreme Court in Worth Carolina v Piorce 395 US 271

(12)

whioh forbids multipLe puuishtnents for the sams aota:on

sentence i.s void as it is not authorized by Law having fai

comport with all mandatory sentencir,g prsrvis3.ons=

The Sec.ond District Court of Appeals su'

a s

jurirprudoraca in this issue for that of this Court. The Seoor.d Di

is of the opinion that se:zter;c.es in whiv`Ya a Court

t'ne senteraQes as allied

not void, as is the ;jurisprudaaeza

2010w®hiom 1, ixi which this Court made i,

Court

are void, sinc^s the Triel. Court's duty to mar

rtisereti,oaaary . The jurisprudence

states that the failure to merge

ree voEdab

a.tt State v Underwood

uch senta'nc

is 42aadatorvj not

Uuderwssod also

hiolh raquixed the

used to follow

Appellant

Court of Appeals to address the claim. T'hay simgly re

the mandate of this Court, claiming it

which it was, under the str3.eture o

should have

which can be seen in the senteuo9,ag memorandum

by Deferaae Counsel. It would laave taeeas futile t

at that time on Appeal. It only beoatue relevant

d previously

seuteia

the Tr3,a1

ra1-se the

and l.ega'L3,y viable

after Johnson overruled Ranee, and required Courts to return to the

ture of Logan. None of the reasons listed by the Second Distiet

of Appeals for disregarding this Court's jurisprudence in favor

own are correct.

Therefor, to correct the errors being eommited by the Second

I)istriet Court of Appek7.s in disregarding the mandate of this Court,

and the refusal of that Court to properly afford appellants the Double

Jeopardy Clause protections in¢orporated in 2941.25, this Court should

rely renders

(13)

jUriedi»ei^n of this e.age by sustaining this

urreil, in

gumouts prese^^ted, and in tite interest

ty^ and i^^^^^^rl^ 84

thi

of others similarly situated mi1

Nfc,k,ey Lee Patsttd Sr, $ Prc^^^

LT7C 56UAF SIIRVICZ

aopy of

to the Aio

key Lee Pound Sr., h+^^eby car,

ttot

cy

NE. RAN

U.S. {'aa^..

ounty Prosstov

true and 4064t

T OF` JURISDICTION waa

Augca^t 40> 2012^ by first

N3akey Lee Pou'ad Sr., F

(14)

IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO

Plaintiff-Appellee C.A. CASE NOS. 24789/24980

vs. . T.C. CASE NO. 96CR3873/3

NICKEY L. POUND, SR. (Criminal Appeal fromCommon Pleas Court)

Defendant-Appellant

O P I N I O N

Rendered on the 27' day of July, 2012.

Mathias H. Heck, Jr., Pros. Attorney; Michele D. Phipps, Asst.Pros. Attorney, Atty. Reg. No. 0069829, P.O. Box 972, Dayton, OH

45422Attorneys for Plaintiff-Appellee

Nickey L. Pound, Sr., #350-806, L.E.C.I., P.O. Box 56, Lebanon,OH 45036

Defendant-Appellant, Pro se

CANNON, J., sitting by assignment:

{41 11 Appellant, Nickey Lee Pound, Sr., a.k.a. "Dog,"

appeals the judgment of the Montgomery County Court of Common

Pleas denying his petitions for postconviction relief. For the

reasons that follow, the judgment is affirmed.

{q 2} On August 29, 1997, Pound was convicted, after trial

by jury, of aggravated murder, attempted murder, felonious

assault, improperly discharging a firearm at or into an occupied

structure, having weapons while under disability, and multiple

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

2

firearm specifications. The trial court sentenced Pound to

consecutive sentences as follows: 20 years to life imprisonment

for aggravated murder, nine years for attempted murder, seven

years for felonious assault, four years for improperly

discharging a firearm at or into a habitation, and three years

for merged firearm specifications. The trial court additionally

sentenced Pound to a concurrent term of 11 months for having

weapons while under disability.

{$ 3} This court affirmed Pound's conviction in State v.

Pound, 2d Dist. Montgomery No. 16834, 1998 WL 636996 (Sept. 18,

1998). Shortly thereafter, Pound filed a petition to vacate his

sentence, which was construed as a postconviction relief

petition. Pound argued that new evidence surfaced indicating

that a witness, Elvis Wooliver, committed perjury at his trial.

He also argued that he had received ineffective assistance of

counsel. The trial court denied the petition.

{9[ 4} In 2008, Pound again filed a motion to vacate his

sentence on the ground that Wooliver committed perjury at his

trial. The motion, construed as a postconviction relief

petition, was again denied. In 2009, Pound filed his third

petition, again alleging that Wooliver committed perjury at his

trial. In 2011, Pound filed his fourth petition, advancing the

same argument as his previous petitions.

{9[ 5} In two August 2011 entries, the trial court denied

Pound's 2009 and 2011 petitions. Pound, pro se, now timely

appeals from these denials and asserts three assignments of error


3

for consideration by this court. This court, sua sponte,

consolidated the respective appeals. Pound's first and second

assignments of error state:

[1.] The trial court erred when it allowed a

conviction to stand in a post conviction proceeding

when that conviction was proven to have been obtained

through the use of known perjured testimony of which

clearly affected the jury's verdict. The trial court

did not afford the multiple affidavits and evidence the

deference it was due them [sic] and all of this

violated the appellant's constitutional right to a fair

trial and the due process of law under the 5th and 14th

Amendments of the U.S. Constitution and Section 16,

Article 1 of the Ohio Constitution.

[2.] The trial court erred in not conducting a

hearing on this appellant's petition after a

substantial showing was made of both constitutional

error and the unavoidable delay which is enhanced by

the fact that the court considered one petition for

over three years. All of which denied this appellant

his constitutional right to a fair trial and the due

process of law guaranteed him [sic] by the 5th and 14th

Amendments of the U.S. Constitution and Section 16,

Article 1 of the Ohio Constitution.

{$ 6} Pound, in his first and second assignments of error,

argues the trial court erred in denying his petitions and in not


4

conducting any hearings on the petitions. Through the years,

Pound has amassed five affidavits from persons claiming that a

witness at his trial, Elvis Wooliver, committed perjury by lying

on the witness stand during Pound's jury trial. It is clear that

Pound believes he did not get a fair trial and was convicted upon

false testimony.

{9[ 7} Initially, it must be noted that a postconviction

proceeding is a collateral civil attack on a criminal judgment.

State v. Duclley, 2d Dist. Montgomery No. 23613, 2010-Ohio-4152,

q 30, citing State v. Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d

67. It is therefore not an appeal of a criminal conviction. Id.

Consequently, post-conviction relief is not a constitutional

right, but instead is afforded to a convicted defendant as a

statutory remedy. Id., citing State v. Moore, 99 Ohio App.3d

748, 751, 651 N.E.2d 1319 (1st Di.st. 1994).

{9[ 8} Moreover, postconviction relief is a particularly

narrow remedy because the doctrine of res judicata bars "any

claim that was or could have been raised at trial or on direct

appeal." Id.

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 in 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


5

judgment of conviction, or on an appeal from that

judgment. State v. Szefcyk, 77 Ohio St.3d 93, 671

N.E.2d 233 (1996), syllabus.

{q 9} Here, the trial court, in denying Pound's petition,

echoed its 1999 decision denying his first petition. The trial

court concluded that Pound's claim regarding perjured testimony

was barred by res judicata. The trial court correctly explained

that this was a matter that could have and should have been

raised in Pound's direct appeal. Indeed, Pound acknowledges in

his merit brief that the issue of perjured testimony was raised

during his trial in chambers. A review of the record confirms

that this issue was raised in chambers with Pound's counsel

present. Thus, Pound could have raised this issue in his direct

appeal. To a certain extent, the perjured-testimony issue was

raised on direct appeal by attacking the credibility and

reliability of Wooliver's testimony under manifest weight and

jury instruction arguments.

{9[ 101 Additionally, Pound could have appealed the trial

court's 1999 judgment, which denied his first petition concerning

Wooliver's alleged perjured testimony. The record indicates

Pound failed to do so. Pound cannot now collaterally attack non-

constitutional evidentiary issues from his original trial through

a postconviction petition. Further, Pound cannot now attack the

denial of a previous postconviction petition by filing additional

postconviction petitions which argue the same issue. Even if the

same argument could be considered, Pound's second, third, and


6

fourth petitions were each procedurally barred as untimely under

R.C. 2953.21 (A) (2), as the trial court concluded in its March 3,

2010 entry. The record indicates that Pound likewise failed to

appeal this judgment.

{9[ 11} Pound's first and second assignments of error are

without merit.

{$ 12} Pound's third assignment of error states:

This appellant's sentence is void as a matter of

law as it does not comport with all mandatory

sentencing provisions. This appellant's separate

sentences are for offenses that arose from the same

conduct and were committed with a single action and

amicus [sic] and as such should have been merged for

sentencing purposes under [R.C.] 2941.25. The failure

to do so violates the appellant's rights under the 5th

and 14th Amendments of the U.S. Constitution and

Sections 10 and 16, Article 1 of the Ohio Constitution.

{9[ 13} In his third assignment of error, appellant argues

that his sentence is void because many of his offenses should

have merged for the purposes of sentencing, pursuant to State v.

Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061.

fl 14} As explained above, any issues that could have been

raised by a defendant on direct appeal are barred by res judicata

and not subject to appellate review. However, Pound argues that

his sentences are void and therefore not precluded from review by

principles of res judicata. While Pound correctly notes that the


z

doctrine of res judicata does not preclude review of a void

sentence, this court has previously held the failure to merge

sentences does not render a judgment void, but voidable;

therefore, such challenges, if not raised on direct appeal, are

barred by the doctrine of res judicata. State v. Parson, 2d

Dist. Montgomery No. 24641, 2012-Ohio-730, 4 10. Thus, when an

appellant does not raise the issue of merger in a timely direct

appeal, the challenge is barred by the doctrine of res judicata.

State v. Martin, Montgomery 2d Dist. No. 21697, 2007-Ohio-3585,

1 3. See also State v. Poole, 8th Dist. Cuyahoga No. 94759,

2011-Ohio-716, 4 13 ("the time to challenge a conviction based on

allied offenses is through a direct appeal-not a resentencing

hearing"); and State v. Goldsmith, 8th Dist. Cuyahoga No. 95073,

2011-Ohio-840, 4 11 ("[b]ecause [appellant] failed to raise on

direct appeal from his conviction the issue concerning whether

the offenses challenged herein are allied offenses of similar

import subject to merger, we find that the issue is barred by the

doctrine of res judicata").

{$ 15} Pound is attempting to use the denials of his

petitions to raise issues that could and should have been raised

on a direct appeal. Pound's direct appeal was initiated in 1998.

At that point, Pound had the opportunity to timely raise any

prospective errors in his sentencing. He failed to do so.

{q 16) Further, as this court explained in Parson, an

appellant seeking to challenge his pre-Johnson sentencing on the

grounds of merger cannot rely on Johnson "because `[a] new


8

judicial ruling may be applied only to cases that are pending on

the announcement date. * * * The new judicial ruling may not be

applied retroactively to a conviction that has become final, i.e.

where the accused has exhausted all of his appellate remedies."'

Parson, 2012-Ohio-730, 9[ 11, quoting All v. State,104 Ohio St.3d

328, 2004-Ohio-6592, 819 N.E.2d 687, 1 6.

{9[ 17} Pound's third assignment of error is without merit.

{9[ 181 The judgment of the Montgomery County Court of Common

Pleas is hereby affirmed.

FAIN, J., And FROELICH, J., concur.

(Hon. Timothy P. Cannon, Eleventh District Court of Appeals,sitting by assignment of the Chief Justice of the Supreme Court

of Ohio.)

Copies mailed to:

Michele D. Phipps, Esq.Nickey L. Pound, Sr.Hon. Timothy N. O'Connell


IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO

Plaintiff-Appellee C.A. CASE NOS. 24789/24980

vs.

NICKEY L. POUND, SR.

Defendant-Appellant

T.C. CASE NO. 96CR3873/3

FINAL ENTRY

Pursuant to the opinion of this court rendered on the2?thday of July , 2012,

the judgment of the trial court is affirmed.

Costs to be paid as stated in App.R. 24.

Pursuant to Ohio App.R. 30(A), it is ordered that the Clerk of the Montgomery

County Court of Appeals shall immediately serve notice of this judgment upon all

parties and make note in the docket of the mailing.

MIKE FAIN, JUDGE

TIM&TH`Y P. C I^ON, JUDGE

BY ASSIGNMENT

(Hon. Timothy P. Cannon, Eleventh District Court of Appeals,

sitting by assignment of the Chief Justice of the Supreme Court

of Ohio.)


Copies mailed to:

Michele D. Phipps

Asst. Pros. Attorney

301 W. Third Street, 5 th Fl.

P.O. Box 972Dayton, Ohio 45422

Nickey L. Pound, Sr.

#305-806, L.E.C.I.

P.O. Box 56

Lebanon, Ohio 45036

Hon. Timothy N. O'Connell


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