DocketNumber: No. 1-07-75.
Citation Numbers: 2008 Ohio 1787
Judges: SHAW, P.J.<page_number>Page 2</page_number>
Filed Date: 4/14/2008
Status: Precedential
Modified Date: 7/6/2016
{¶ 2} This Petition stems from Bortner's plea of no contest to three counts of Sexual Battery in violation of R.C.
{¶ 3} Bortner's appellate counsel filed a brief in his direct appeal pursuant to Anders v. California (1967),
{¶ 4} On October 17, 2007 Bortner filed a Petition for Post-Conviction Relief. On the same day, the trial court denied the Petition.
{¶ 5} Bortner now appeals, asserting five assignments of error.
THE APPELLANTS [SIC] PETITION FOR POST CONVICTION RELIEF WAS ERRONEOUSLY DISMISSED *Page 3 DUE TO IT BEING UNTIMELY WHEN THE DELAY IN FILING SAID PETITION WAS THE RESULT OF THE INACTIONS OF AN OFFICER OF THE COURT OR APPELLANTS [SIC] PREVIOUS APPELLATE COUNSEL.
THE TRIAL COURT ERRED IN APPLYING THE DOCTRINE OF RES JUDICATA TO THE APPELLANTS [SIC] POST CONVICTION PETITION DUE TO THE EVIDENCE SUPPORTING SAID PETITION NOT BEING ON THE RECORD.
THE APPELLANTS [SIC] RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY THESIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLEI §10 OF THE OHIO CONSTITUTION WERE VIOLATED WHEN COUNSEL FAILED TO MOVE THE COURT TO SUPPRESS EVIDENCE OBTAINED IN VIOLATION OF APPELLANTS [SIC] RIGHTS PROHIBITING WARRANTLESS SEARCHES GUARANTEED BY THEFOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLEI §14 OF THE OHIO CONSTITUTION.
THE APPELLANTS [SIC] RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY THE*Page 4SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLEI §10 OF THE OHIO CONSTITUTION WERE VIOLATED WHEN COUNSEL FAILED TO MOVE THE COURT TO SUPPRESS EVIDENCE THAT WAS SUPPRESSIBLE DUE TO THE EVIDENCE BEING OBTAINED THROUGH EVIDENCE THAT WAS OBTAINED BY AN ILLEGAL WARRANTLESS SEARCH THAT VIOLATED APPELLANTS [SIC] RIGHTS GUARANTEED BY THEFOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLEI §14 OF THE OHIO CONSTITUTION
THE APPELLANTS [SIC] RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY THESIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLEI §10 OF THE OHIO CONSTITUTION WERE VIOLATED WHEN COUNSEL FAILED TO PROPERLY REPRESENT APPELLANT DUE TO A CONFLICT OF INTEREST.
{¶ 6} For ease of discussion, Bortner's assignments of error will be addressed together. Specifically, Bortner contends in each of his assignments of error that the trial court erred in denying his Petition for Post-Conviction Relief.1 In denying Bortner's Petition for Post-Conviction Relief, the trial court relied on three separate grounds.
{¶ 7} First, the trial court found Bortner's Petition to be untimely pursuant to R.C.
Except as otherwise provided in section
2953.23 of the Revised Code, a petition under division (A)(1) of this section shall be filed no later than one hundred eighty 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 . . . (emphasis added)
This Court has previously recognized that a trial court is without jurisdiction to consider a petition for post-conviction relief that is filed outside of the statutory *Page 5
180 day time limit. State v. Osborn, 3rd Dist. No 9-06-44,
{¶ 8} In the present case, the trial transcript in the direct appeal was filed on April 6, 2007. Bortner's Petition was filed two weeks after the 180-day deadline articulated in R.C.
{¶ 9} Second, the trial court found that it was not required to hold a hearing before dismissing Bortner's Petition, holding that "a post conviction claim is subject to dismissal without a hearing when the petitioner fails to submit with his petition evidentiary material setting forth sufficient operative facts to demonstrate substantive grounds for relief." See R.C.
{¶ 10} We note that if Bortner's Petition satisfied the requirements of R.C.
(A) Whether a hearing is or is not held on a petition filed pursuant to section
2953.21 of the Revised Code, a court may not entertain a petition filed after the expiration of the period prescribed in division (A) of that section or a second petition or successive petitions for similar relief on behalf of a petitioner unless division (A)(1) or (2) of this section applies:(1) Both of the following apply:
(a) Either the petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief, or, subsequent to the period prescribed in division (A)(2) of section
2953.21 of the Revised Code or to the filing of an earlier petition, the United States Supreme Court recognized a new federal or state right that applies retroactively to persons in the petitioner's situation, and the petition asserts a claim based on that right.(b) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted or, if the claim challenges a sentence of death that, but for constitutional error at the sentencing hearing, no reasonable factfinder would have found the petitioner eligible for the death sentence.
In order to satisfy R.C.
{¶ 11} Moreover, Bortner contends that because some relationship existed between his trial counsel and ex-wife's boyfriend, a conflict of interest existed, affecting his representation. In support of this contention, Bortner attaches his ex-wife's boyfriend's criminal records from Lima Municipal Court. It appears that these records are attached to show that Bortner's trial counsel previously represented his ex-wife's boyfriend in his own criminal matter. We are, however, unclear as to how this evidences a conflict of interest in a criminal proceeding. More importantly, Bortner fails to allege that his trial counsel was even aware of the relationships that pose the potential conflict. Bortner's claims do not satisfy the requirements of R.C.
{¶ 12} Third, even if Bortner's Petition was not time barred, the trial court found that Bortner's claims, with the exception of his claim of ineffective assistance of counsel, were barred by res judicata and could have been raised on direct appeal. We note that the Supreme Court of Ohio has held that the doctrine of res judicata will bar a defendant from raising any defenses or constitutional claims in a post conviction appeal under R.C.
{¶ 13} The Supreme Court of Ohio has recognized exceptions to this general rule and has held that the doctrine of res judicata does not apply to claims of ineffective assistance where the issue was not heard on direct appeal. See State v. Hester (1976),
{¶ 14} In the present case, Bortner was represented by different counsel at trial, and on his direct appeal. Moreover, all of Bortner's claims are based on information that is either contained in the record, or was available to trial counsel at the time of trial. These claims are therefore, barred by res judicata.
{¶ 15} Bortner's petition was untimely, no exception under R.C.
Judgment affirmed. PRESTON and WILLAMOWSKI, J.J., concur.