State v. Baker , 2024 Ohio 4448 ( 2024 )

[Cite as State v. Baker, 2024-Ohio-4448.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
CASE NO. 1-23-59
PLAINTIFF-APPELLEE,
v.
WILLIAM BAKER, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR 2017 0118
Judgment Affirmed
Date of Decision: September 9, 2024
APPEARANCES:
William H. Baker, Appellant
John R. Willamowski, Jr., for Appellee
Case No. 1-23-59
ZIMMERMAN, J.
{¶1} Defendant-appellant, William Baker (“Baker”), appeals the August 15,
2023 judgment entry of the Allen County Court of Common Pleas denying his
petition for post-conviction relief. For the reasons set forth below, we affirm.
{¶2} On May 11, 2017, the Allen County Grand Jury indicted Baker on
Count One of rape in violation of R.C. 2907.02(A)(2), (B), a first-degree felony;
Count Two of sexual battery in violation of R.C. 2907.03(A)(5), (B), a third-degree
felony; Count Three of unlawful sexual conduct with a minor in violation of R.C.
2907.04(A), (B)(3), a third-degree felony; Count Four of rape in violation of R.C.
2907.02(A)(2), (B), a first-degree felony; Count Five of sexual battery in violation
of R.C. 2907.03(A)(5), (B), a third-degree felony; Count Six of unlawful sexual
conduct with a minor in violation of R.C. 2907.04(A), (B)(3), a third-degree felony;
Count Seven of gross sexual imposition in violation of R.C. 2907.05(A)(1), (C)(1),
a fourth-degree felony; and Count Eight of gross sexual imposition in violation of
R.C. 2907.05(A)(1), (C)(1), a fourth-degree felony. On May 19, 2017, Baker
appeared for arraignment and entered pleas of not guilty.
{¶3} The case proceeded to jury trial on October 17-19, 2017. On October
19, 2017, the jury found Baker guilty of all counts of the indictment.
{¶4} On December 18, 2017, the trial court sentenced Baker to nine years in
prison on Counts One and Four, respectively, and to 12 months in prison on Counts
-2-
Case No. 1-23-59
Seven and Eight, respectively. For purposes of sentencing, the trial court merged
Counts One, Two, and Three, and also merged Counts Four, Five, and Six. The
prison terms imposed as to Counts One, Four, Seven, and Eight were ordered to be
served consecutively for an aggregate sentence of 20 years.
{¶5} On December 22, 2017, Baker appealed the trial court’s judgment of
conviction.1 State v. Baker, 2018-Ohio-3431, ¶ 4 (3d Dist.). In that direct appeal,
we affirmed the judgment of the trial court. Baker at ¶ 23.
{¶6} On August 4, 2023, Baker filed a petition for post-conviction relief
under R.C. 2953.21. On August 15, 2023, the trial court denied Baker’s petition as
being untimely and found that it was without jurisdiction to hear the petition. The
trial court further found that, even if timely, the claims raised in the petition were
barred by res judicata and that an ineffective-assistance-of-appellate-counsel claim
is not cognizable under R.C. 2953.21.
{¶7} On September 8, 2023, Baker filed his notice of appeal and raises three
assignments of error for our review. We will address the assignments of error
together.
First Assignment of Error
The judge misconstrued the issue of Ineffective Assistance of
Counsel (IAC) in the Appellant’s August 2023 Petition to Vacate
or set Aside Sentence. The judge sought to argue IAC of
Appella[te] Counsel instead of the actual issue of IAC of trial
counsel. The petition presented was for trial counsel. Trial
1
In Baker’s direct appeal, this court recited much of the factual and procedural background of this case, and
we will not duplicate those efforts here.
-3-
Case No. 1-23-59
Counsel violated Appellant’s Sixth and Fourteenth Amendment
rights under the United States Constitution and Article I § 10 of
the Ohio Constitution.
Second Assignment of Error
Because the trial court failed to address this issue of Prosecutorial
Misconduct in the Appellant’s August 2023 Petition to Vacate or
Set Aside Sentence, the judge[’s] abuse of discretion and abuse of
process connotes more than an error of law or judgment, it
implies that the court’s attitude is unreasonable, arbitrary, and/or
unconscionable. This violated Appellant’s right to Due Process
under the Fourteenth Amendment to the United States
Constitution and Article I, Section 16 of the Ohio Constitution.
Third Assignment of Error
Because the trial court failed to address this issue of “Actual
Innocence”/Miscarriage of Justice in the Appellant’s August 2023
Petition to Vacate or Set Aside Sentence, the judge[’s] abuse of
discretion and abuse of process connotes more than an error of
law or judgment, it implies that the court’s attitude is
unreasonable, arbitrary, and/or unconscionable. This violated
Appellant’s right to Due Process under the Fourteenth
Amendment to the United States Constitution and Article I,
Section 16 of the Ohio Constitution.
{¶8} In his first assignment of error, Baker argues that the trial court erred
by denying his petition because it misconstrued his ineffective-assistance-of-trial-
counsel claim. In his second assignment of error, Baker argues that the trial court
erred by denying his petition because it failed to address his prosecutorial-
misconduct claim. In his third assignment of error, Baker argues that the trial court
erred by denying his petition because it failed to address his “actual innocence” and
miscarriage-of-justice claim. In particular, Baker argues that many “constitutional
-4-
Case No. 1-23-59
errors” took place at trial such that, but for these errors, “no reasonable juror would
have found him guilty.” (Appellant’s Brief at 22).
Standard of Review
{¶9} Typically, we review a trial court’s decision granting or denying a
petition for post-conviction relief for an abuse of discretion. State v. Gondor, 2006-
Ohio-6679, ¶ 58. However, whether a trial court possesses subject-matter
jurisdiction to entertain an untimely petition for post-conviction relief is a question
of law, which we review de novo. State v. Apanovitch, 2018-Ohio-4744, ¶ 24.
{¶10} “[A] postconviction proceeding is not an appeal of a criminal
conviction but, rather, a collateral civil attack on the judgment.” State v. Calhoun,
86 Ohio St.3d 279, 281 (1999). A trial court lacks jurisdiction over an untimely
petition for post-conviction relief unless the petition satisfies the criteria set forth
under R.C. 2953.23(A). Apanovitch at ¶ 36.
Analysis
{¶11} R.C. 2953.21 governs petitions for post-conviction relief. The version
of R.C. 2953.21 in effect at the time of Baker’s judgment of conviction mandates
that a petition “shall be filed no later than three hundred sixty-five days after the
date on which the trial transcript is filed in the court of appeals in the direct appeal
of the judgment of conviction or adjudication.” R.C. 2953.21(A)(2) (2017) (current
version at R.C. 2953.21(A)(2)(a) (2021)). Importantly, a trial court lacks
jurisdiction to entertain an untimely petition for post-conviction relief unless the
-5-
Case No. 1-23-59
petitioner demonstrates that one of the R.C. 2953.23(A) exceptions applies.
Apanovitch at ¶ 36 (“[A] petitioner’s failure to satisfy R.C. 2953.23(A) deprives a
trial court of jurisdiction to adjudicate the merits of an untimely or successive
postconviction petition.”).
{¶12} The first exception to considering an untimely petition for post-
conviction relief is set forth at R.C. 2953.23(A)(1). Specifically, the petitioner must
show either that he was unavoidably prevented from discovering the facts necessary
to present his claim for relief, or that the United States Supreme Court has
recognized a new federal or state right that applies retroactively to persons in the
petitioner’s situation. R.C. 2953.23(A)(1)(a). If the petitioner is able to show that
one of these threshold conditions applies, then he must further show “by clear and
convincing evidence that, but for constitutional error at trial, no reasonable
factfinder would have found [him] guilty.” R.C. 2953.23(A)(1)(b).
{¶13} The second exception to considering an untimely petition for post-
conviction relief is set forth at R.C. 2953.23(A)(2). In particular, this exception
applies to offenders for whom DNA testing was performed under specific statutes
“and the results of the DNA testing establish, by clear and convincing evidence,
actual innocence of that felony offense.” R.C. 2953.23(A)(2).
{¶14} In this case, Baker was required to file his petition for post-conviction
relief no later than 365 days after the date the trial transcripts were filed in his direct
appeal. The trial transcripts in Baker’s direct appeal were filed on April 2, 2018.
-6-
Case No. 1-23-59
However, Baker did not file his petition for post-conviction relief until August 4,
2023—many years after the 365-day deadline. Thus, Baker’s petition for post-
conviction relief is untimely.
{¶15} Because Baker’s petition for post-conviction relief is untimely, he
must establish that he is entitled to file a delayed petition under one of the exceptions
in R.C. 2953.23(A). Here, Baker does not argue that the United States Supreme
Court has recognized a new federal or state right which would retroactively apply
to his situation. Instead, Baker argues that he has been unavoidably prevented from
discovering facts necessary to assert his claims for relief. Specifically, Baker argues
that his trial counsel was ineffective for failing to attack the victim’s credibility with
inconsistent statements. Baker further argues that his appellate counsel was
ineffective for failing to communicate with him during the direct appeal.
{¶16} A review of Baker’s petition shows that the facts underlying his
inconsistent-statements argument were available to Baker at the time of trial. See
State v. Settles, 2017-Ohio-8353, ¶ 18 (3d Dist.) (noting that a petitioner is
“unavoidably prevented” from discovering necessary facts when the petitioner was
unaware of those facts and was unable to learn of them through reasonable
diligence). Further, Baker does not allege that he was unaware of those facts or
unable to learn of them through reasonable diligence. Because those facts were
available to Baker at the time of trial, he could have raised this issue as part of his
-7-
Case No. 1-23-59
ineffective-assistance-of-trial-counsel argument in his direct appeal, but he did not.
See Baker, 2018-Ohio-3431, at ¶ 18-22 (3d Dist.).
{¶17} Moreover, Baker’s claim of ineffective-assistance-of-appellate-
counsel is not cognizable in post-conviction proceedings under R.C. 2953.21. State
v. Murnahan, 63 Ohio St.3d 60, 65 (1992) (“[W]e hold that claims of ineffective
assistance of appellate counsel are not cognizable in post-conviction proceedings
pursuant to R.C. 2953.21.”). Therefore, Baker has failed to satisfy the threshold
conditions of R.C. 2953.23(A)(1).
{¶18} As to the exception set forth in R.C. 2953.23(A)(2), Baker has failed
to point to any evidence where DNA testing was performed under specific statutes
and the results of the DNA testing “establish, by clear and convincing evidence,”
Baker’s “actual innocence.” See Apanovitch, 2018-Ohio-4744, at ¶ 29 (holding that
R.C. 2953.23(A)(2) confers jurisdiction only over a select class of offenders who
applied for DNA testing under R.C. 2953.71 to 2953.81 or under former R.C.
2953.82).
{¶19} Accordingly, because Baker has failed to establish that he is entitled
to file a delayed petition for post-conviction relief under one of the exceptions in
R.C. 2953.23(A), the trial court was without jurisdiction to consider Baker’s
untimely petition for post-conviction relief. See State v. Lee, 2018-Ohio-3715, ¶ 13
(3d Dist.) (concluding that the trial court lacked jurisdiction to consider an untimely
petition for post-conviction relief).
-8-
Case No. 1-23-59
{¶20} Furthermore, even if Baker’s petition for post-conviction relief was
timely filed, his arguments concerning prosecutorial misconduct and ineffective
assistance of trial counsel are barred by the doctrine of res judicata.
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
the judgment of conviction, or on an appeal from that judgment.
State v. Perry, 10 Ohio St.2d 175 (1967), paragraph nine of the syllabus. See also
State v. Stewart, 2021-Ohio-2294, ¶ 15 (3d Dist.). Here, Baker could have raised
these arguments in his direct appeal, but he failed to do so. See Baker, 2018-Ohio-
3431 (3d Dist.). Thus, Baker is barred by the doctrine of res judicata from raising
these issues in a petition for post-conviction relief. See Stewart at ¶ 15.
{¶21} Baker’s assignments of error are overruled.
{¶22} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
MILLER and BALDWIN, J.J., concur.
**Judge Craig R. Baldwin of the Fifth District Court of Appeals, sitting by
Assignment of the Chief Justice of the Supreme Court of Ohio.
-9-