State v. Workman

[Cite as State v. Workman, 2019-Ohio-5379.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
AUGLAIZE COUNTY
STATE OF OHIO,
CASE NO. 2-19-09
PLAINTIFF-APPELLEE,
v.
TIMOTHY SCOTT WORKMAN, OPINION
DEFENDANT-APPELLANT.
Appeal from Auglaize County Common Pleas Court
Trial Court No. 2014-CR-75
Judgment Affirmed
Date of Decision: December 30, 2019
APPEARANCES:
Timothy Workman Appellant
Benjamin R. Elder for Appellee
Case No. 2-19-07
WILLAMOWSKI, J.
{¶1} Although originally placed on our accelerated calendar, we have elected
pursuant to Loc.R. 12(5) to issue a full opinion in lieu of a summary judgment entry.
Defendant-appellant Timothy S. Workman (“Workman”) appeals the judgment of
the Auglaize County Court of Common Pleas, alleging that the trial court erred in
dismissing his petition for post-conviction relief without an evidentiary hearing. For
the reasons set forth below, the judgment of the trial court is affirmed.
Facts and Procedural History
{¶2} On October 3, 2014, Workman was found guilty of thirty-nine counts
of illegal use of a minor in nudity-oriented material in violation of R.C.
2907.323(A)(1), thirty-nine counts of illegal use of a minor in nudity-oriented
material in violation of R.C. 2907.323(A)(3), and one count of tampering with
evidence in violation of R.C. 2921.12(A)(1). Doc. 202-280. Workman was
sentenced to an aggregate forty-year prison term. Doc. 368. He filed his direct
appeal on March 9, 2015. Doc. 381. On December 7, 2015, this Court affirmed his
conviction. Doc. 424. State v. Workman, 3d Dist. Auglaize No. 2-15-05, 2015-
Ohio-5049.
{¶3} Since his conviction was affirmed by this Court, Workman has filed
numerous motions relative to his conviction with the trial court. Workman filed a
motion for a Franks hearing on April 8, 2015 and February 16, 2016. Doc. 394,
446. The trial court subsequently denied both of these motions. Doc. 402, 448. He
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appealed the denial of one of these motions. Doc. 479. This Court then affirmed
the decision of the trial court. Doc. 502.
{¶4} Workman has filed a motion for a new trial on August 12, 2016;
December 12, 2016; November 3, 2017; and February 22, 2018. Doc. 512, 533,
577, 599. On March 18, 2018, Workman filed a motion for leave to file a motion
for a new trial. Doc. 603. The trial court subsequently denied each of these motions.
Doc. 530, 549, 585, 600, 607. Workman then appealed the denial of two of these
motions. Doc. 588, 610. In both of these appeals, this Court affirmed the decision
of the trial court. Doc. 606, 646.
{¶5} Workman has also filed a petition for postconviction relief on
September 16, 2015; on April 10, 2017; on May 17, 2018; on September 24, 2018;
and on June 20, 2019. Doc. 414, 553, 618, 648, 672. The trial court subsequently
dismissed or denied each of these petitions. Doc. 441, 558, 627, 653, 681.
Workman then appealed the trial court’s disposition of each of these petitions. Doc.
463, 561, 630, 657, 684. This Court has, on appeal, affirmed the trial court’s
decision regarding each of the prior petitions. Doc. 502, 575, 665, 667, State v.
Workman, 3d Dist. Auglaize No. 2-19-07, unreported judgment entry (Dec. 16,
2019).
{¶6} On August 12, 2019, Workman filed a successive petition for
postconviction relief that requested an evidentiary hearing. Doc. 690. The trial
court dismissed Workman’s petition on August 12, 2019, concluding that it lacked
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jurisdiction to entertain Workman’s petition. Doc. 695. The appellant filed his
notice of appeal on August 22, 2019. Docket 2: 1. On appeal, Workman raises the
following assignments of error:
First Assignment of Error
The trial court abused its discretion when it dismissed
Workman’s Petition for Post Conviction [Relief], when the record
shows that Workman was unavoidably prevented from discovery
of the facts which he relies.
Second Assignment of Error
The trial court abused its discretion when it failed to hold an
evidentiary hearing on Workman’s Petition for Post Conviction
Relief [because] Workman meets the statutory requirements that
allow this Court to entertain this successive Petition for Post
Conviction Relief.
We will consider both of these assignments of error in one analysis.
First and Second Assignments of Error
{¶7} In his successive petition for postconviction relief, Workman alleges
that he received documents after his conviction that had not been provided to him
before or during his trial. He argues, based on this alleged newly discovered
evidence, that he is entitled to an evidentiary hearing regarding the matters in his
petition.
Legal Standard
{¶8} “R.C. 2953.21, Ohio’s postconviction-relief statute, provides ‘a remedy
for a collateral attack upon judgments of conviction claimed to be void or voidable
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under the United States or the Ohio Constitution.’” State v. Keith, 176 Ohio App.3d
260, 2008-Ohio-741, 891 N.E.2d 1191, ¶ 24 (3d Dist.), quoting State v. Scott-
Hoover, 3d Dist. Crawford No. 3-04-11, 2004-Ohio-4804, ¶ 10. “Postconviction
review is not a constitutional right, but is a collateral civil attack on a judgment that
is governed solely by R.C. 2953.21.” Keith at ¶ 26. A petition for postconviction
relief is timely filed if the petition is submitted “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.” R.C. 2953.21(A)(2).
{¶9} “A trial court lacks jurisdiction to entertain an untimely or successive
petition for postconviction relief unless the petitioner establishes that one of the
exceptions in R.C. 2953.23(A) applies.” State v. Cunningham, 2016-Ohio-3106, 65
N.E.3d 307, ¶ 13 (3d Dist.), quoting State v. Chavis, 10th Dist. Franklin No. 15AP-
557, 2015-Ohio-5549, ¶ 14. R.C. 2953.23(A) reads, in its relevant part, as follows:
(A) * * *[A] court may not entertain a petition filed after the
expiration of the period prescribed in [R.C. 2953.21(A)] of that
section or a second petition or successive petitions for similar
relief on behalf of a petitioner unless * * *:
(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.
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(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.
R.C. 2953.23(A)(1). “Thus, unless the defendant alleges a new federal or state right
has been recognized, the defendant must prove (1) that he was unavoidably
prevented from discovery of facts upon which his successive petition for
postconviction relief rests and (2) that he would not have been convicted at trial by
a reasonable factfinder but for the constitutional error.” State v. Workman, 3d Dist.
Auglaize No. 2-17-12, 2017-Ohio-7364, ¶ 18.
{¶10} “However, ‘[t]he filing of a petition for postconviction relief does not
automatically entitle the petitioner to an evidentiary hearing.’” State v. Lewis, 3d
Dist. Logan No. 8-19-08, 2019-Ohio-3031, ¶ 12 quoting State v. Andrews, 3d Dist.
Allen No. 1-11-42, 2011-Ohio-6106, ¶ 11. Rather, “[a] hearing on a petition for
post-conviction relief is not necessary unless the trial court finds that the petition
sets forth substantive grounds for relief.” State v. Brown, 3d Dist. Allen No. 1-11-
68, 2012-Ohio-2126, ¶ 6, citing State v. Calhoun, 86 Ohio St.3d 279, 282-83, 714
N.E.2d 905 (1999). To determine whether there are substantive grounds for relief,
the court shall consider, in addition to the petition, the supporting
affidavits, and the documentary evidence, all the files and records
pertaining to the proceedings against the petitioner, including,
but not limited to, the indictment, the court’s journal entries, the
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journalized records of the clerk of the court, and the court
reporter’s transcript.
R.C. 2953.21(C). “Therefore, before a hearing is granted, the petitioner bears the
initial burden to submit evidentiary documents containing sufficient operative facts
to demonstrate the errors alleged in the petition for postconviction relief.” Scott-
Hoover, supra, at ¶ 12.
{¶11} Further, the doctrine of “[r]es judicata applies to any claim that was
raised or could have been raised in a prior petition for postconviction relief.” State
v. Clemmons, 2d Dist. Montgomery No. 28085, 2019-Ohio-2997, ¶ 25. See Coulson
v. Coulson, 5 Ohio St.3d 12, 13, 448 N.E.2d 809 (1983) (holding that “[p]rinciples
of res judicata prevent relief on successive, similar motions raising issues which
were or could have been raised originally.”). “‘Res judicata’ means that a final
decision has previously been made * * * [and] serves to preclude a party who had
his or her day in court from seeking a second hearing on the same issue.” Clemmons
at ¶ 25. Thus, res judicata operates to “bar raising piecemeal claims in successive
postconviction relief petitions * * *.” State v. Lawson, 12th Dist. Clermont No.
CA2013-12-093, 2014-Ohio-3554, ¶ 53, quoting State v. Johnson, 5th Dist.
Guernsey No. 12 CA 19, 2013-Ohio-1398, ¶ 47.
{¶12} “[I]f the court determines that there are no substantive grounds for
relief, it may dismiss the petition without an evidentiary hearing.” State v. Driskill,
3d Dist. Mercer Nos. 10-07-03 and 10-07-04, 2008-Ohio-827, ¶ 13, quoting State v.
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Jones, 3d Dist. Defiance No. 4-07-02, 2007-Ohio-5624, ¶ 14. “The decision to grant
the petitioner an evidentiary hearing is left to the sound discretion of the trial court.”
Andrews at ¶ 11, citing Calhoun at 284. Thus, we review a trial court’s dismissal
of an untimely or successive petition for post-conviction relief without a hearing for
an abuse of discretion. State v. Baker, 3d Dist. Auglaize No. 2-16-07, 2016-Ohio-
5669, ¶ 10.
{¶13} “An abuse of discretion is not merely an error of judgment.” State v.
Sullivan, 2017-Ohio-8937, 102 N.E.3d 86, ¶ 20 (3d Dist.). “Rather, an abuse of
discretion is present where the trial court’s decision was arbitrary, unreasonable, or
capricious.” State v. Kleman, 3d Dist. Hardin No. 6-19-01, 2019-Ohio-4404, ¶ 18,
quoting State v. Howton, 3d Dist. Allen No. 1-16-35, 2017-Ohio-4349, ¶ 23. When
the abuse of discretion standard applies, an appellate court is not to substitute its
judgment for that of the trial court. State v. Thompson, 2017-Ohio-792, 85 N.E.3d
1108, ¶ 11 (3d Dist.).
Legal Analysis
{¶14} Since Workman’s direct appeal occurred in 2015, this successive
petition for postconviction relief was not filed within the time limit prescribed in
R.C. 2953.21(A)(2). Thus, unless one of the exceptions in R.C. 2953.23(A) applies,
the trial court did not have jurisdiction to consider Workman’s petition for
postconviction relief. In this case, Workman argues that he was unavoidably
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prevented from discovering the evidence that forms the basis of his petition and that,
but for this constitutional error, he would not have been found guilty.
{¶15} In his petition, Workman claims that he did not, at the time of his trial,
have access to an incident report that documented the investigative activities of the
police on September 30, 2013 (“Incident Report”). Doc. 690. One page of this
incident report is attached to Workman’s petition and forms the basis of his
arguments. Doc. 690. However, the State, in its response to Workman’s petition,
represents that this Incident Report was provided to Workman on January 6, 2014
as part of the State’s initial discovery disclosure to the Defense. Doc. 698. For this
reason, the State argues that the evidence that forms the basis of Workman’s petition
was available to him at the time of his trial and during his direct appeal. Doc. 698.
Thus, the State argued that Workman’s petition was barred by res judicata. Doc.
698.
{¶16} Even if the State did not provide Workman with this Incident Report
during discovery, this petition is still barred by res judicata because Workman
submitted this exact same page of the Incident Report with a prior petition for
postconviction relief on May 17, 2018. Doc. 618, 690. See State v. McKelton, 2016-
Ohio-3216, 55 N.E.3d 26, ¶ 15 (12th Dist.). This earlier petition was dismissed by
the trial court on May 23, 2018. Doc. 627. After Workman appealed the dismissal
of his petition, this Court affirmed the decision of the trial court. Doc. 630, 665.
The fact that he had this document at the time he filed his previous petition for
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postconviction relief means he could have raised this exact issue in his prior petition.
Further, beyond the Incident Report, the remaining facts and arguments raised in
this successive petition have been raised previously in Workman’s prior petitions
for postconviction relief. Thus, res judicata bars the claims raised in his petition.
{¶17} Workman has not demonstrated that one of the exceptions in R.C.
2953.23(A) applies to this case. After reviewing the evidence in the record, we
conclude that the trial court did not abuse its discretion in dismissing Workman’s
untimely, successive petition for postconviction relief without an evidentiary
hearing. Thus, the appellant’s first and second assignments are overruled.
Conclusion
{¶18} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgment of the Auglaize County Court of Common Pleas
is affirmed.
Judgment Affirmed
ZIMMERMAN, P.J. and SHAW, J., concur.
/hls
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