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Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

POSTCONVICTION RELIEF (165)

Also see Habeas Corpus; Counsel, Right to/Effective or ineffective assistance of counsel.

 

Petition; Obligation to conduct a hearing

Procedural issues

Res judicata

Representation

Disposition

Successive petitions; Late filing

Other issues

 

R.C. 2953.21 -- Petition for postconviction relief.

R.C. 2953.22 -- Hearing.

R.C. 2953.23 -- Time for filing petition; appeals.

Criminal Rule 35 -- Post-Conviction Petitions.

Petition; Obligation to conduct a hearing

State v. Holloman, Hamilton App. No. 030391, 2004-Ohio-2178 -- At the plea hearing, trial counsel stood moot when the judge imposed a greater sentence than indicated at a pretrial conference. Evidentiary material attached to the petition required a hearing. Court notes the lack of civil discovery prevented more complete documentation of the claim.

State v. Williams, 149 Ohio App. 3d 434, 2002-Ohio-4831 -- During sequestered penalty phase deliberations in a capital case, before leaving the hotel for the courthouse, an alternate juror asked the bailiff if a prayer was permitted. Bailiff may have participated in prayer. In a postconviction action, the defense claimed this was prohibited by the Establishment Clause and represented misconduct by court personnel. Bailiff's affidavit satisfied aliunde rule. Reversed for trial court to conduct a hearing on the issue. Also see State v. Williams, 162 Ohio App. 3d 55, 2005-Ohio-3366 affirming the subsequent denial of postconviction relief.

State v. Kinley (1999), 136 Ohio App. 3d 1 -- (1) Affidavits of defense attorneys maintained right to jury trial had been bartered for funds to hire a psychologist to use in mitigation. Judge and prosecutor swore it wasn't so. Defense counsel submitted further affidavits standing by their version. This claim could not be disposed of without a hearing. (2) Conflicting affidavits also required a hearing on recanted testimony. (3) Postconviction actions are special statutory proceedings. Civil discovery is not available.

State v. Gholston, Hamilton App. No. C-020557, 2003-Ohio-2758 -- Petitioner claimed trial counsel was ineffective for failure to subpoena the victims. Res judicata did not bar postconviction petition premised on new evidence outside the record on appeal. Petition and affidavits required a hearing. Trial judge reviewing petition went too far in discounting credibility of supporting affidavits from the alleged victims.

State v. Anderson, Hamilton App. No. C-030382, 2004-Ohio-866 -- Hearing required where the affidavit of an exculpatory witness was consistent with trial testimony of another witness and not cumulative. Absence of an affidavit from trial counsel acknowledging ineffectiveness did not leave trial court free to speculate the witness had been interviewed but not called as a tactical decision. The petitioner did not have the benefit of civil discovery to obtain a statement from trial counsel.

State v. Milanovich (1975), 42 Ohio St. 2d 46 -- Paragraph one of the syllabus: "Where a claim in a petition for postconviction relief...is sufficient on its face to raise an issue that petitioner's conviction is void or voidable on constitutional grounds, and the claim is one which depends upon factual allegations that cannot be determined by examination of the files and records of the case, the petition states a substantive ground for relief." (Requiring an evidentiary hearing.)

State v. Perry (1967), 10 Ohio St. 2d 175 -- (1) Petition for post-conviction relief may be summarily dismissed if it fails to allege facts which, if proved, would entitle the petitioner to relief. (2) Relief is limited to where there has been a violation under the state or federal constitution. (3) The doctrine of res judicata will be applied to bar relitigation of issues which were or could have been litigated at trial or in a direct appeal.

State v. Strutton (1988), 62 Ohio App. 3d 248 -- (1) A hearing is not automatically required whenever a petition for post-conviction relief is filed. The test is whether there are substantial grounds for relief that would warrant a hearing based upon the petition. (2) A defendant is denied effective assistance of counsel where counsel refuses to act on a request that guilty pleas be withdrawn, when there is a not insubstantial possibility that withdrawal would have been allowed.

State v. Calhoun (1999), 86 Ohio St. 3d 279 -- Syllabus: "(1) In reviewing a petition for postconviction relief filed pursuant to R.C. 2953.21, a trial court should give due deference to affidavits sworn to under oath and filed in support of the petition, but may, in the sound exercise of discretion, judge the credibility of the affidavits in determining whether to accept the affidavits as true statements of fact. (2) Pursuant to R.C. 2953.21, a trial court properly denies a defendant's petition for postconviction relief without holding an evidentiary hearing where the petition, the supporting affidavits, the documentary evidence, the files, and the records do not demonstrate that petitioner set forth sufficient operative facts to establish substantive grounds for relief. (3) A trial court properly denies a petition for postconviction relief, made pursuant to R.C. 2953.21, and issues proper findings of fact and conclusions of law where such findings are comprehensive and pertinent to the issues presented, where the findings demonstrate the basis for the decision by the trial court, and where the findings are supported by the evidence."

State v. Jackson (1980), 64 Ohio St. 2d 107 -- Syllabus: "In a petition for post-conviction relief, which asserts ineffective assistance of counsel, the petitioner bears the initial burden to submit evidentiary documents containing sufficient operative facts to demonstrate the lack of competent counsel and that the defense was prejudiced by counsel's ineffectiveness." Also see State v. Kapper (1983), 5 Ohio St. 3d 36 (petition may be dismissed without a hearing when this burden is not met); State v. Pankey (1981), 68 Ohio St. 2d 58; State v. Poland (1984), 16 Ohio App. 3d 303.

State v. Smith (1987), 36 Ohio App. 3d 162, 163 -- A properly licensed attorney is presumed to execute his duties in a competent and ethical manner. To overcome this presumption a defendant must submit (in his petition for post-conviction relief) "...sufficient operative facts or evidentiary documents which, if proven, would show that appellant was prejudiced by said ineffective assistance of counsel." If the defendant makes such a showing he is entitled to an evidentiary hearing on his petition.

State v. Swortcheck (1995), 101 Ohio App. 3d 770, 772 -- "When determining whether there are substantive grounds for postconviction relief that would warrant a hearing, the affidavits offered in support of the petition should be accepted as true." Affidavits submitted supporting defendant's claims established a prima facie case of ineffective assistance of counsel, however, court dismissed petition without a hearing relying upon conflicting affidavit of trial counsel submitted by the prosecutor. Held that a hearing was required.

State v. Howard (1983), 8 Ohio App. 3d 434 -- The trial transcript may be considered as a part of the record in determining whether a post-conviction action alleging ineffective assistance of counsel may be dismissed without conducting an evidentiary hearing.

State v. Lawson (1966), 9 Ohio App. 2d 129 -- An evidentiary hearing should be conducted when the allegations in the petition cannot be fully rebutted by an examination of the files and records of the case. Also see State v. Williams (1966), 8 Ohio App. 2d 135.

State v. Stevens (1978), 58 Ohio App. 2d 6 -- An evidentiary hearing should be conducted when there is a genuine issue of fact whether the defendant was under the influence of drugs at the time a plea was entered and whether the plea was made in reliance on a promise for shock probation.

State v. Mullins (1995), 104 Ohio App. 3d 684 -- Hearing required where petition and exhibits documented claim beyond the trial record that counsel was ineffective for not pursuing ballistics test results, which suggested fatal shot may not have been fired by the defendant.

State v. Resch (1997), 124 Ohio App. 3d 694 -- Defendant was entitled to a hearing on his postconviction petition where Brady material withheld included: (1) report DNA markers were not present; (2) statements of neighbors to the crime scene; and (3) agreement in plea bargain not to prosecute the mother of a codefendant.

State v. Ramos (1993), 88 Ohio App. 3d 394 -- Hearing was required where the defendant sufficiently documented claim he had been promised super-shock probation off the record, and since he pleaded guilty to a non-probationable offense, his plea was not voluntary. Notwithstanding what may have been said on the record at the plea hearing, the validity of the defendant's claim could not be determined by examination of the files and records of the case.

State v. Pierce (1998), 127 Ohio App. 3d 578 -- Hearing required where the record could not establish the absence of issues of material fact as to the defendant's attire during trial and the circumstances surrounding the failure to call an alibi witness.

State v. Stewart (1997), 122 Ohio App. 3d 424 -- (1) Where the petition seeking postconviction relief is sufficiently specific, and there is nothing in the record to rebut the defendant's claims, an evidentiary hearing is required. Also see State v. Gibson (1992), 78 Ohio App. 3d 501. (2) If upon remand a transcript of the plea hearing rebuts the petitioner's claim, the action may be summarily dismissed. (3) Even if the prosecutor's "memorandum contra" is construed as an answer or motion, amended petitions filed beforehand must be considered by the court.

State v. Greene (1993), 86 Ohio App. 3d 620 -- Postconviction petition properly dismissed without a hearing where the defendant failed to submit supporting evidentiary material supporting claim counsel was ineffective due to failure to present certain evidence to the jury.

State v. Moore (1994), 99 Ohio App. 3d 748 -- In determining whether an evidentiary hearing is required, the court may weigh the credibility of affidavits supporting a motion for postconviction relief. Identical affidavits signed by three individuals and contradiction of what was said in court when guilty plea was entered justified dismissal without a hearing.

State v. Edwards (1997), 119 Ohio App. 3d 106 -- Petitioner claimed defense counsel did not consult with him before foregoing instructions on a lesser included offense. No hearing required as court finds the decision was not so fundamental as to require consultation.

State v. Kuyper (1997), 121 Ohio App. 3d 158 -- Majority concludes defendant's self-serving affidavits were insufficient to rebut transcript showing plea was voluntary. Dissenter believes mention of when shock probation would be considered at least required a hearing.

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Procedural issues

State v. Dean, 187 Ohio App. 3d 495, 2010-Ohio-1684 – Following imposition of a death sentence the state public defender was appointed to represent the defendant in a postconviction action. After the petition had been filed the defendant wrote to the judge asking that postconviction proceedings be terminated. The P.D. sought a competency evaluation before a ruling on this request. The judge agreed with the prosecutor that a colloquy was enough. During this exchange the defendant cited the court’s mistreatment of his trial attorneys as a reason. Competency evaluation was required. Judge’s conduct led to reversal in direct appeal of the conviction. See State v. Dean, 127 Ohio St. 3d 140, 2010-Ohio-5070.

State v. Everette, 129 Ohio St. 3d 317, 2011-Ohio-2856 – Syllabus: “For purposes of determining when the 180-day time period for filing a post-conviction petition shall accrue, only the certified, written transcript constitutes a ‘transcript’ under App.R. 9(A) and R.C. 2953.21(A)(2) when both a videotape recording and the written form of the proceedings are available.” Videotapes were included in the record forwarded forty days after the notice of appeal was filed. Typed transcript followed 6-7 weeks later. Post conviction petition was timely only counting from the later date.

State v. Schlee, 117 Ohio St. 3d 153, 2008-Ohio-545 – Syllabus: "The trial court may recast an appellant‘s motion for relief from judgment as a petition for postconviction relief when the motion has been unambiguously presented as a Civ.R. 60(B) motion." The opinion endorses borrowing from the Civil Rules when the Criminal Rules do not make specific provision, so 60(B) motions remain viable. But Crim.R. 35 does cover postconviction proceedings, so there is no need to borrow. Concurring opinion faults "recasting" unambiguous motions, and calls for denial as improper which would permit refilling under the proper procedural rule.

State v. Williams, 165 Ohio App. 3d 594, 2006-Ohio-617 -- Summary judgment and dismissal without a hearing are separate issues. When determining whether to dismiss a postconviction petition without a hearing a court may engage in a limited weighing of the credibility of supporting affidavits to determine whether there are sufficient operative facts to establish substantive grounds for relief. It may not weigh conflicting evidence such as in the prosecutor's response and make findings of fact. In ruling on motions for summary judgment the court may consider conflicting evidence but must construe such evidence in the defendant's favor. It may not go outside the record, and here erred by considering unauthenticated documents.

State ex rel. Sharif v. McDonnell (2001), 91 Ohio St. 3d 46 -- When the court of appeals directs the trial judge in a postconviction case to make findings of fact and conclusions of law supporting the summary dismissal of the case as untimely filed, such order becomes the law of the case. The trial court must make such findings whether or not there is a general obligation to make findings in such circumstances.

State v. Cowan, 101 Ohio St. 3d 327, 2004-Ohio-1583 -- Syllabus: "A municipal court is without jurisdiction to review a petition for post-conviction relief filed pursuant to R.C. 2953.21." Affirms State v. Cowan, 151 Ohio App. 3d 228, 2002-Ohio-7271.

Miller v. Walton, 163 Ohio App. 3d 703, 2005-Ohio-4855 -- Defendant claimed he had been denied his right to jury trial. Post conviction was not barred by res judicata as the defendant's claim lay outside the record and could not have been raised on appeal. Though convicted of a misdemeanor, postconviction was filed in common pleas court. Since the petition must be filed in the trial court, and municipal courts do not have jurisdiction to hear postconviction actions, petition was properly dismissed. Habeas doesn't lie because defendant was placed on community control. Suggested that the remedy is a Civ. R. 60(B) motion for relief from judgment.

State v. Myers, Clark App. No. 2002-CA-73, 2003-Ohio-915 -- Trial court incorrectly ruled it lacked authority to hear postconviction action while appeal was pending. However, petition was not timely. The 180 days allowed expired on February 12th. Petition was mailed from the prison on the 10th, but was not filed until the 15th.

State v. Cowan, 151 Ohio App. 3d 228, 2002-Ohio-7271 -- A municipal court does not have jurisdiction to hear a postconviction action. ¶8: "This court would note that in those municipalities, which have a prosecutor's office independent of the county prosecutor, there is no requirement in R.C. 2953.21 requiring a copy of the petition to be filed with the municipal prosecutor." ¶ 11: ...(W)e are also concerned with the inordinate burden that such petitions would place on a municipal court system that has not been provided with the means or procedures to process such petitions."

State v. Wiles (1998), 126 Ohio App. 3d 71 -- (1) At pp. 77-78: If the state deigns to respond to a postconviction petition, it must do so within ten days or obtain leave to respond out of rule. Error in denying motion to strike here was harmless as the court had an independent duty to analyze the petition. (2) The court's findings must address all of the issues presented by the petition. (3) Trial counsel went to work to the prosecutor's office. It is presumed that he shared information with his new colleagues which could have been used against a former death penalty client in subsequent postconviction proceedings. A hearing was required to rebut this presumption in response to a motion to disqualify the prosecutor's office.

State v. Wilkins (1998), 127 Ohio App. 3d 306 -- A motion for summary judgment filed by the state is not a responsive pleading cutting off the petitioner's right to amend the petition pursuant to Civ. R. 15(A) and R.C. 2953.21(F). Only an answer or other Civ. R. 7(A) pleading cuts off a petitioner's absolute right to amend. Petitions may disposed of pursuant to Civ. R. 12(B)(6) or on summary judgment whether or not the state has filed an answer.

State v. Smith (1986), 30 Ohio App. 3d 138 -- The post-conviction statute does not contemplate the use of interrogatories in determining whether an evidentiary hearing is required.

State v. Blank (sic) (1997), 118 Ohio App. 3d 441, 443 -- "A municipal court does not have jurisdiction to consider a postconviction petition." This appears to be an overly broad application of the syllabus to Dayton v. Hill (1970), 21 Ohio St. 3d 125: "Sections 2953.21 to 2953.24 inclusive, Revised Code, do not apply to persons convicted of violating a municipal ordinance." In turn, Hill may not apply to the present version of R.C. 2953.21.

State v. Schulte (1997), 118 Ohio App. 3d 184 -- A defendant convicted prior to September 21, 1995 had one year to file his petition, notwithstanding the shorter time limit applicable for those convicted after that date. Also see State v. Saylor (1998), 125 Ohio App. 3d 633 holding that since the specified deadline fell on a Saturday, the actual deadline was the following Monday.

State v. Smith (1997), 123 Ohio App. 3d 48 -- Prisoner's postconviction petition had to be filed in the trial court by September 21, 1996. Delivery to prison mail system by that date was not sufficient. Opinion fails to address State v. Westfall (1976), 46 Ohio St. 3d 31, and State v. Williamson (1967), 10 Ohio St. 2d 195, holding that if a defendant is incarcerated in a prison and acts without the aid of counsel, his notice of appeal is timely if within the time allowed for filing the notice of appeal, such notice is delivered to the proper prison authorities for forwarding to the court.

State v. Lambrecht (1989), 45 Ohio App. 3d 4 -- The post-conviction statute does not provide for release on bail pending determination of the action. Also see State v. Denoon (1966), 8 Ohio App. 2d 70.

State v. Johnson (1971), 29 Ohio App. 2d 219 -- The hearing to be conducted in a post-conviction case affords the petitioner the opportunity to introduce the testimony of witnesses and is not limited to the introduction of records.

State v. Decker (1986), 28 Ohio St. 3d 137 -- While the testimony of a defense attorney as an expert witness is not foreclosed in a post-conviction action alleging ineffective assistance of counsel, it is properly excluded when the claim is otherwise refuted by the facts of the case.

State v. Barnes (1982), 7 Ohio App. 3d 83 -- Venue for a post- conviction action is the county of conviction. Irregularities in changing venue of a post-conviction action render a judgment voidable but not void.

State v. Nichols (1984), 11 Ohio St. 3d 40 -- Syllabus: "(1) A delayed appeal pursuant to App. R. 5(A) is not available in the appeal of a postconviction relief determination pursuant to R.C. 2953.23(B). (2) Postconviction relief proceedings will be governed by the Ohio Rules of Appellate Procedure as applicable to civil actions." Also see State v. Harvey (1980), 68 Ohio App. 2d 170; State v. Milanovich (1975), 42 Ohio St. 2d 46, 49; State v. Bissantz (1987), 30 Ohio St. 3d 120.

State v. Lester (1975), 41 Ohio St. 2d 51 -- (1) Claims that the defendant was not advised of his right to appeal must be raised through a delayed appeal and not in a post-conviction action. Also see State v. Benton (1971), 27 Ohio St. 2d 87. (2) The court in disposing of a petition for post-conviction relief must make and file findings of fact and conclusions of law.

State v. Conley (December 28, 1978), Franklin Co. App. No. 78AP-447, unreported (1978 Opinions 3805) -- The post-conviction statute makes no provision for default judgments where the prosecutor has failed to file an answer. Also see State v. Darden (1989), 64 Ohio App. 3d 691; State v. Sklenar (1991), 71 Ohio App. 3d 444.

State, ex rel. Manning, v. Montgomery (1988), 39 Ohio St. 3d 140 -- Mandamus does not lie to force the prosecutor to respond to a post-conviction petition as petitioner may ask to the trial court to rule on the petition even in the absence of a response.

State, ex rel. Kaldor, v. Court (1984), 9 Ohio St. 3d 114 -- Mandamus does not lie to compel the court to conduct an evidentiary hearing in a post-conviction action as appeal provides an adequate remedy in the ordinary course of law.

State, ex rel. Turpin, v. Court of Common Pleas (1966), 8 Ohio St. 2d 116 -- Writ of mandamus issued to compel court to proceed on post-conviction petition pending for twelve months.

State, ex rel. Smith, v. McGettrick (1984), 12 Ohio St. 3d 54 -- Where only six weeks have elapsed since the filing of a post-conviction action, mandamus will not issue to force the prosecutor and court to proceed on the petition. Also see State, ex rel. Lowe, v. Common Pleas Court (1977), 49 Ohio St. 2d 168.

State v. Murnahan (1992), 63 Ohio St. 3d 60 -- Syllabus: "Claims of ineffective assistance of appellate counsel are not cognizable in post-conviction proceedings pursuant to R.C. 2953.21. (2) Claims of ineffective assistance of appellate counsel may be raised in an application for reconsideration in the court of appeals or in a direct appeal to the Supreme Court pursuant to Section 2(B)(2)(a)(iii), Article IV of the Ohio Constitution. (In re Petition of Brown [1990], 49 Ohio St. 3d 222, 223...Manning v. Alexander [1990], 50 Ohio St. 3d 127...followed.) (3) Where the time period for reconsideration in the court of appeals and direct appeal to the Supreme Court has expired, a delayed claim of ineffective assistance of appellate counsel must first be brought in an application for delayed reconsideration in the court of appeals where the alleged error took place, pursuant to App. R. 26 and 14(B), and if delayed reconsideration is denied then the defendant may file for delayed appeal in the Supreme Court, pursuant to Section 8, Rule II of the Rules of Practice of the Supreme Court."

State v. Mitchell (1988), 53 Ohio App. 3d 117, 119 -- "...(W)e find that R.C. 2953.21 provides for post-conviction remedies to redress constitutionally void or voidable judgments of conviction. The Ohio statute does not provide a remedy to redress state appellate court decisions claimed to result in the denial of constitutionally ensured guarantees." Compare Evitts v. Lucey (1985), 469 U.S. 387.

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Res judicata

State v. Hennis, 165 Ohio App. 3d 66, 2006-Ohio-41 -- Defendant raised ineffective assistance of counsel and further claims in postconviction. Res judicata does not apply. Opinion notes some claims must be judged based on matters both on and off the record.

State v. Szefcyk (1996), 77 Ohio St. 3d 93 -- Syllabus: "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. (State v. Perry [1967], 10 Ohio St. 2d 175...paragraph nine of the syllabus, approved and followed; State v. Westfall [1995], 71 Ohio St. 3d 565...disapproved.)" On direct appeal, defendant lost on the claim that a minor misdemeanor could not be the basis for an involuntary manslaughter conviction. Subsequently, in another case, the Supreme Court of Ohio held otherwise. A post conviction action successfully secured defendant's release. [State v. Szefcyk (1995), 104 Ohio App. 3d 118.] Ohio Supreme Court reversed.

State v. Singerman (1996), 115 Ohio App. 3d 273 -- When the factual allegations in the petition are outside the trial record, res judicata is not an appropriate ground for dismissal.

State v. Reynolds (1997), 79 Ohio St. 3d 158 -- Syllabus: "Where a criminal defendant, subsequent to his or her direct appeal, files a motion seeking vacation or correction of his or her sentence on the basis that his or her constitutional rights have been violated, such a motion is a petition for postconviction relief as defined in R.C. 2953.21." Such being the case, res judicata will bar any claims which could have been raised on direct appeal.

State v. Duling (1970), 21 Ohio St. 2d 13 -- Paragraph two of the syllabus: "Constitutional issues cannot be considered in post-conviction proceedings...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. (Paragraph seven of the syllabus in State v. Perry, 10 Ohio St. 2d 175, approved and followed.) Also see State v. Wilcox (1984), 16 Ohio App. 2d 273.

State v. Cole (1982), 2 Ohio St. 3d 112 -- Syllabus: "Where a defendant, represented by new counsel upon direct appeal, fails to raise therein the issue of competent trial counsel and said issue could fairly have been determined without resort to evidence dehors the record, res judicata is a proper basis for dismissing defendant's petition for postconviction relief. (State v. Hester, 45 Ohio St. 2d 71, modified.)" Also see State v. Perry (1967), 10 Ohio St. 2d 175; State v. Poerce (1998), 127 Ohio App. 3d 578, 585; State v. Jenkins (1987), 42 Ohio App. 3d 97; State v. Ledger (1984), 17 Ohio App. 3d 94.

State v. Roberts (1982), 1 Ohio St. 3d 36 -- Syllabus: "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 (1967), 10 Ohio St. 2d 175, approved and followed.) Also see State v. Harmon (1995), 103 Ohio App. 3d 595, 597; State v. Pocius (1995), 104 Ohio App. 3d 18, 23.

State v. Lentz (1994), 70 Ohio St. 3d 527 -- Syllabus: "When a criminal defendant is represented by two different attorneys from the same public defender's office at trial and on direct appeal, res judicata bars a claim of ineffective assistance of trial counsel raised for the first time in a petition for postconviction relief when such claim could have been made on direct appeal without resort to evidence beyond the record, unless the defendant proves that an actual conflict of interest enjoined appellate counsel from raising ineffective assistance of trial counsel on direct appeal."

State v. Payton (1997), 124 Ohio App. 3d 552 -- Res judicata does not bar claims of ineffective assistance of trial counsel where appellate counsel were involved at the trial level, one as primary counsel and the other at sentencing and with regard to a motion for a new trial.

State v. Ishmail (1981), 67 Ohio St. 2d 16 -- Failure to raise on direct appeal noncompliance with Crim. R. 11 at the time a guilty plea was entered constitutes waiver, preventing that issue being litigated in a post-conviction action.

State v. Zorns (1997), 120 Ohio App. 3d 360 -- (1) Res judicata bars claims of vindictive prosecution and ineffective assistance of counsel which could have been asserted on appeal. (2) Postconviction is not available to attack probation revocation proceedings as irregularities is such proceedings do not affect the validity of the original judgment of conviction.

State v. Phillips (1993), 88 Ohio App. 3d 409 -- Doctrine of res judicata applied to bar litigation in postconviction action of issue of proof of operability of firearm previously raised on direct appeal. Also see State v. Coombs (1994), 100 Ohio App. 3d 90. (Numerous issues in a death penalty case barred.)

State v. Castro (1979), 67 Ohio App. 2d 20 -- Headnote 1: "The doctrine of res judicata is applicable to consecutive postconviction proceedings; therefore, an issue raised in a prior postconviction proceeding is res judicata for the purpose of subsequent postconviction proceedings." Compare State v. Coleman (1978), 59 Ohio App. 2d 295.

State v. Bolds (1994), 96 Ohio App. 3d 483, 485 -- "Where a defendant fails to raise questions about the constitutionality of a statute or ordinance, and such questions are subsequently decided in a case brought by another individual, the defendant is barred by the doctrine of res judicata from raising such questions in a postconviction proceeding."

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Representation

State v. Hill, 160 Ohio App. 3d 324, 2005-Ohio-1501, ¶6-16 -- Counsel was advised of appointment to handle appeal but did nothing. No effort was made to file a delayed appeal. Postconviction was not the appropriate remedy as appellate rights had not been exhausted. State v. Gover (1995), distinguished as there an effort had been made to pursue a delayed appeal. Gover remedy was use of postconviction as a means for vacating, then reentering judgment, permitting a now timely appeal.

State v. Crowder (1991), 60 Ohio St. 3d 151 -- Paragraph one of the syllabus: "Although an indigent petitioner does not have a state or federal constitutional right to representation by an attorney in a post-conviction proceeding, the petitioner, pursuant to R.C. 120.16(A)(1) and (D), is entitled to representation by a public defender at such a proceeding if the public defender concludes that the issues raised by the petitioner have arguable merit." Also see State v. Hitt (November 23, 1993), Franklin Co. App. No. 93AP-724, unreported (1993 Opinions 4965); State v. Buchanan (June 10, 1997), Franklin Co. App. No. 96APA11-1527, unreported (1997 Opinions 2340).

State ex rel. Peeples v. Wilford (1995), 72 Ohio St. 3d 407 -- Mandamus does not lie to compel appellate counsel to file a postconviction petition.

State, ex rel. McMinn, v. Ohio Public Defender (1985), 26 Ohio App. 3d 16 -- Mandamus does not lie to compel the Ohio Public Defender to provide representation in a post-conviction action where, pursuant to R.C. 120.06(B), the public defender has determined that the case lacks arguable merit. Also see State, ex rel. Pierce, v. Court of Common Pleas (1986), 25 Ohio St. 3d 27.

State v. Hall (1968), 14 Ohio St. 2d 226 -- Where the post-conviction petition alleged that the waiver of right to counsel was not voluntarily and intelligently made, the court should appoint counsel to represent petitioner and proceed to conduct an evidentiary hearing.

State v. Gover (1995), 71 Ohio App. 3d 577 -- Counsel appointed to handle appeal was never notified by the trial court. Ten months later the defendant unsuccessfully sought a delayed appeal. Following this, the state Public Defender entered the case and sought delayed reconsideration pursuant to App.R. 26. (1) App.R. 26 is not available in these circumstances. (2) Postconviction is the proper remedy and relief almost certainly should be granted. The trial court should reenter its judgment, thus permitting an appeal as of right to be filed. (3) Court of appeals denial of delayed appeal was "doubtful at best."

State v. Scudder (1998), 131 Ohio App. 3d 470 -- Because postconviction actions are civil in nature, the Sixth Amendment right to the effective assistance of counsel does not apply. Death penalty case. Compare In re Travis Children (1992), 80 Ohio App. 3d 620, holding that a parent in proceedings to permanently terminate parental rights has the right to effective assistance of counsel.

Cincinnati Bar Association v. Smith (1993), 67 Ohio St. 3d 71 -- Attorney disciplined for abandoning postconviction cases without refund of unearned fees, where cases had been referred by a disbarred lawyer and doubts had developed as to probity of the claims advanced.

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Disposition

State ex rel. Whiteside v. Fais 91 Ohio St. 3d 463, 2001-Ohio-97 -- Mandamus properly dismissed after respondent judge had taken the action sought in the petition. No error in refusal to convert action to one in prohibition. No error in refusal to grant motion to proceed in forma pauperis since defendant failed to comply with local court rule concerning supporting affidavit.

State v. McNeil (2000), 137 Ohio App. 3d 34 -- A trial court may summarily dismiss claims in a postconviction petition that are baseless, such as claims barred by res judicata. However, it may not dismiss claims based on matters beyond the record without a review of the actual record. When the record is in the possession of an appellate court, the trial court must wait until the record is returned before determining whether such claims may disposed of without a hearing.

State v. Pless (1993), 91 Ohio App. 3d 197 -- It was error to sustain the prosecutor's motion for summary judgment without allowing the defendant fourteen days to respond, as required by local rules of court.

State v. Riggins (1993), 91 Ohio App. 3d 350 -- "Findings of fact and conclusions of law are mandatory under R.C. 2953.21 if the trial court dismisses the petition." Also see State v. Brown (1974), 41 Ohio App. 2d 181, 185.

State v. Clemmons (1989), 58 Ohio App. 3d 45 -- When dismissing a post-conviction action without a hearing the judge must make findings of fact and conclusions of law sufficient to permit appellate review of the basis for the judgment.

State v. Mapson (1982), 1 Ohio St. 3d 217 -- A court must prepare findings of fact and conclusions of law even when summarily dismissing a post-conviction action. A judgment is not final until such findings are made. Thus, when no findings have been made, a notice of appeal is not untimely, though filed more than thirty days after the action is dismissed. Also see State v. Perkins (1982), 5 Ohio App. 3d 182.

State v. Wilson (1996), 110 Ohio App. 3d 178 -- Court erroneously dismissed petition on summary judgment motions without addressing the most significant of the defendant's claims in its findings.

State, ex rel. Ferrell, v. Clark (1984), 13 Ohio St. 3d 3 -- Mandamus lies to compel judge to issue findings of fact and conclusions of law in a post-conviction case. Also see State, ex rel. Brown, v. Court (1986), 23 Ohio St. 3d 46; State, ex rel. Carrion, v. Harris (1988), 40 Ohio St. 3d 19.

State v. Cannady (October 8, 1991), Franklin Co. App. No. 91AP-474, unreported (1991 Opinions 4869) -- Petitioner had not been brought to trial within the 180 day period required under the Interstate Agreement on Detainers. Speedy trial claim was not raised by trial counsel and was held waived for purposes of direct appeal. Issue was raised in post conviction. Held that petitioner was entitled to summary judgment.

State v. Walker (1995), 101 Ohio App. 3d 433 -- Rape victim recanted prior testimony, now saying acts occurred but were consensual. No abuse of discretion denying new trial or postconviction relief as defendant's testimony at trial had been that acts never took place.

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Successive petitions; Late filing

State v. Smith, 180 Ohio St. 3d 684, 2009-Ohio-335 – Defendants wanted to get back into court for resentencing in order to press a claim based on Kimbrough v. United States (2007), 552 U.S. 85, that the differential treatment of crack and powder cocaine in sentencing statutes is unjust. A previous effort based on Foster had been unsuccessful. This time they claimed their sentences were void according to State v. Simpkins, 117 Ohio St. 3d 420, 2008-Ohio-1197. Court distinguishes Simpkins on the basis that the defendant had already been through direct appeal, and construes their motions as untimely motions for postconviction relief. Also see State v. Price, Wayne App. No. 07CA0025, 2008-Ohio-1774. Furthermore, the court is not receptive to a Kimborough claim.

State v. Clayton, 179 Ohio App. 3d 55, 2008-Ohio-5481 – In the 1970‘s the defendant‘s death sentence was changed to life following the decision in Lockett v. Ohio. A post conviction action filed in 1979 was dismissed. In 2007 he filed a successive petition. This time the court conducted a hearing and resentenced the defendant to life without a parole – a sentence not available in the 70‘s. Defendant appealed. Court sidesteps issue by finding the trial court erred in entertaining the second petition.

State v. Buhrman, 180 Ohio App. 3d 790, 2009-Ohio-689 – Defendant filed a motion to dismiss a successive postconviction petition without prejudice, then indicated during a teleconference that he wished to go on with the action in the event he was denied parole. Error for the court to later dismiss the action without addressing timeliness and the merits.

State v. Williams, 157 Ohio App. 3d 374, 2004-Ohio-2857 -- Post conviction petition mailed from prison arrived one day late. Cuyahoga County declines to apply the mailbox rule, which in the federal courts treats a document as filed on the date it is handed over to prison authorities for mailing. State ex rel. Tyler v. Alexander (1990), 52 Ohio St. 3d 84 followed. Compare Houston v. Lack (1988), 487 U.S. 266, 270. Case does not fall within exceptions allowing for consideration of late filings.

State v. Lordi, 149 Ohio App. 3d 627, 2002-Ohio-5517 -- Petitioner did not demonstrate that he was unavoidably prevented from discovering matters forming the basis for an untimely postconviction petition and a related motion for a new trial. Consequently he did not have standing to challenge the postconviction statute on constitutional grounds. Claim was that R.C. 2953.23(A)(2) violates the Supremacy Clause.

State v. Martin, Montgomery App. No. 20024, 2004-Ohio-73 -- Trial court erroneously dismissed petition as time-barred. Though the defendant knew of counsel's ineffectiveness by the conclusion of the trial, he lost track of alibi witness and was not able to obtain their affidavits in support of the petition until after the filing deadline.

State v. Cejas, 147 Ohio App. 3d 263, 2002-Ohio-126 -- Petitioner unsuccessfully claims Apprendi v. New Jersey (2000), 530 U.S. 466 recognized a new federal or state right that applies retroactively, thus satisfying one of the conditions for late filing of a postconviction petition. Court holds petition was properly dismissed as weight of the drugs involved was always a matter for the jury to determine.

State ex rel Carroll v. Corrigan, 91 Ohio St. 3d 331, 2001-Ohio-54 -- Mandamus does not lie to compel issuance of findings of fact and conclusions of law in a successive postconviction action.

State v. Byrd (2001), 145 Ohio App. 3d 318 -- Effort to raise an actual innocence claim in a successive petition fails.

State v. Dean, 149 Ohio App. 3d 93, 2002-Ohio-4203 -- Inmate doing life for rape fails in effort to use discovery in a postconviction action in furtherance of having DNA testing performed.

State v. Fields (1999), 136 Ohio App. 3d 393 -- The requirement that a postconviction petition be filed within six months of the time for filing the transcript in a direct appeal is based on the time limit applicable to direct appeals as of right. There is no exception applicable to delayed appeals. See concurring opinion. Also see State v. Johnson (2001), 144 Ohio App. 3d 222; State v. Macias, Lucas App. No. L-01-1391, 2003-Ohio-684.

State v. Laws, Franklin App. No. 04AP-283, 2004-Ohio-6446 -- In a case with multiple appeals, the time for filing a postconviction action runs from the filing of the transcript in the first appeal. Petitioner failed meet the criteria for consideration of an untimely petition spelled out in R.C. 2953.23(A).

State v. Bird (2000), 138 Ohio App. 3d 400 -- The term "direct appeal" does not universally include delayed appeals. Thus the time for filing a postconviction action runs from the date of conviction and not the time the transcript is filed in a delayed appeal. Holding the defendant to this schedule denies neither due process nor equal protection.

State v. Fuller, 171 Ohio App. 3d 260, 2007-Ohio-2018 -- The statutory requirement that a postconviction petition be filed within 180 days after the date the transcript is filed in the court of appeals applies to reopened appeals. The court finds State v. Bird (2000), 138 Ohio App. 3d 400 and its progeny unpersuasive and would extend the rule to delayed appeals as well.

State v. Perdue (1981), 2 Ohio App. 3d 285 -- Headnotes: "(1) It lies within the sound discretion of the trial court whether to entertain a second or successive petition for post-conviction relief. (2) When a trial judge, upon the filing of an affidavit of prejudice against him, withdraws from the determination of a petition for post-conviction relief alleging misconduct of the trial judge, the newly assigned judge must either determine the issues raised de novo or proceed to a determination of whether the original judge was in fact biased or prejudiced and if so, whether such bias or prejudice influenced the determinations previously made by the original judge."

State v. Spirko (1998), 127 Ohio App. 3d 421 -- (1) Second postconviction action was properly dismissed where petitioner failed to establish constitutional error arising from materials obtained under the federal Freedom of Information Act. (2) No error found in denial of discovery or a hearing. Also see State v. Beuke (1998), 130 Ohio App. 3d 633.

State v. Rikard (1997), 122 Ohio App. 3d 185 -- A hearing on a second or successive petition was not required unless petitioner satisfied both of the conditions set forth in former R.C. 2953.23(A). Also see State v. Owens (1997), 121 Ohio App. 3d 34; State v. Beaver (1998), 131 Ohio App. 3d 458, 462.

State ex rel Fuller v. Sutula (1999), 86 Ohio St. 3d 301 -- The trial judge is under no obligation to issue findings of fact and conclusions of law on a second motion for postconviction relief.

State, ex rel. Workman, v. McGrath (1988), 40 Ohio St. 3d 91 -- Mandamus does not lie to compel a judge to make findings of fact and conclusions of law in dismissing a successive petition alleging the same grounds as earlier petitions. Also see State ex rel Jennings v. Nurre (1995), 72 Ohio St. 3d 596.

State v. Beaver (198), 131 Ohio App. 3d 458 -- Findings of fact and conclusions of law are not required when a court dismissed a time-barred petition for postconviction relief.

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Other issues

Danforth v. Minnesota (2008), 128 S.Ct. 1029 – The Teague v. Lane, 489 U.S. 288 rule on retroactivity applies only in federal habeas. State courts may allow broader remedies. At issue was a Crawford claim raised in state postconviction after Crawford had been decided.

State v. Gondor, 112 Ohio St. 3d 377, 2006-Ohio-6679 -- Abuse of discretion is the standard for appellate review in a postconviction case involving ineffective assistance of counsel claims. While ordinarily such claims are reviews by an appellate court de novo, in postconvictions there has been a prior determination by a trial court judge. That determination is due deference since the trial court judge is likely to have presides at trial as well.

State v. Harrington, 172 Ohio App. 3d 595, 2007-Ohio-3796 -- In cases where the trial court has not conducted a hearing on a postconviction petition, mixed question of fact and law analysis applies upon appellate review. An affidavit requires some sort of jurat. Actual innocence is not an issue that may be litigated in a post conviction action.

State ex rel. Bunting v. Haas, 102 Ohio St. 3d 161, 2004-Ohio-2055 -- Procedendo is the appropriate remedy when a trial court has not ruled on a petition for postconviction relief within the prescribed 180 days. Complaint was improperly dismissed where claim appeared to have merit.

State ex rel. Madsen v. Foley Jones, 106 Ohio St. 3d 178, 2005-Ohio-4381 -- The 180 days within which a judge "shall" rule on a postconviction petition is not jurisdictional. Shall is directory.

Bunkley v. Florida (2003), 123 S.Ct. 2020 -- Florida has had a common pocketknife exception to the definition of deadly weapon since 1901, but it was not until 1997 that it was judicially interpreted to exclude blades under four inches. The defendant was convicted of armed burglary in 1987 based on his possession of a pocket knife with a blade under three inches. Applying Fiore v. White (2001), 531 U.S. 225, remanded for determination whether the knife was not a deadly weapon under state law at the time of conviction.

State v. Davis (1999), 133 Ohio App. 3d 511 -- Petitioner's claims in part were said to be supported by events at the sentencing hearing. Trial court reviewed transcript of plea hearing, but did not review a transcript of the sentencing hearing before denying petition without a hearing. Reversed. Also suggested that petitioner may wish to initiate a delayed appeal.

State v. Brooks (1999), 133 Ohio App. 3d 521 -- Inmate brought a declaratory judgment action in an effort to revisit the propriety of his probation four years earlier. (1) There was no justiciable controversy between the parties. A declaratory judgment action cannot be used as a substitute for appeal or as a subterfuge for revisiting issues already determined. (2) Relief sought was in the nature of postconviction relief. Action was untimely.

State v. Bush, 96 Ohio St. 3d 235, 2002-Ohio-3993 -- Syllabus: "R.C. 2953.21 and 2953.23 do not govern a Crim. R. 32.1 postsentence motion to withdraw a guilty plea." Thus motions do not have to be filed within the time limits for commencing a postconviction action.

State v. Turner, 171 Ohio App. 3d 82, 2007-Ohio-1346, ¶25-27 -- Counsel rendered faulty advice regarding the availability of self-defense. Motions to withdraw guilty pleas and postconviction are alternative remedies for ineffective assistance of counsel claims. Hearing was required.

State v. Williams, Franklin App. No. 06AP-842, 2006-Ohio-5415 -- Because postconviction actions are civil in nature, delayed appeal is not available. But in this case a timely appeal remains a possibility as the court did not serve the parties with the judgment entry in accordance with Civil Rule 58(B).

State v. Hill (1998), 129 Ohio App. 3d 658 -- If filed after the time allowed for direct appeal, a motion to withdraw a guilty plea, if premised upon violation of constitutional rights, will be construed as a petition seeking postconviction relief, and is subject to the time limits for filing postconviction actions. Also see State v. Walters (2000), 138 Ohio App. 3d 715.

State v. Aldridge (1997), 120 Ohio App. 3d 122 -- (1) At 136: Postconviction actions are civil in nature. Petitioner's burden of proof is by a preponderance of the evidence. (2) Suppression of Brady material, including overzealous investigatory methods warranted relief.

State v. Walden (1984), 19 Ohio App. 3d 141 -- Headnote 4: "If the prosecution, prior to or during trial, knows of the existence of exculpatory evidence and fails to provide it to defense counsel despite a request for production of all exculpatory evidence, this prosecutorial misconduct amounts to a denial of due process sufficient to support an R.C. 2953.21 petition for relief after judgment."

State v. Fuller (1990), 64 Ohio App. 3d 349 -- Post-conviction relief granted where defendant who wished to raise ineffective assistance of trial counsel was not appointed new counsel for his appeal.

State v. Reese (1982), 8 Ohio App. 3d 202 -- To obtain relief on a claim that defense counsel failed to subpoena witnesses, petitioner must demonstrate the relevancy of the testimony they would have provided. Also see State v. Hunt (1984), 20 Ohio App. 3d 310.

State v. Little; State v. Jones (November 13, 1979), Franklin Co. App. Nos. 79AP-286, 287, 369, 370, unreported (1979 Opinions 3372, 3387-3390) -- Determination whether representation by father and son practicing together presented a conflict of interest and deprived defendants of effective assistance of counsel cannot be determined from the present record and calls for a post-conviction action. Situation not aided by same, though different, lawyer representing codefendants on appeal. For additional cases where record on direct appeal did not allow determination of similar claims see State v. Cooperrider (1983), 4 Ohio St. 3d 226; State v. Cooperrider (April 22, 1982), Franklin Co. App. No. 81AP-939, unreported (1982 Opinions 1145); State v. Steele (1982), 8 Ohio App. 3d 137; State v. Booker (1989), 63 Ohio App. 3d 459; State v. Gibson (1980), 69 Ohio App. 2d 91.

State v. Apanovich (1991), 70 Ohio App. 3d 758 -- Court concludes defendant may not raise serological issues in a postconviction action after failing to raise those issues at trial or in the direct appeal.

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