State v. Apanovitch (Slip Opinion)
121 N.E.3d 351
| Ohio | 2018Background
- In 1984 Anthony Apanovitch was convicted of aggravated murder, aggravated burglary, and two counts of rape for the beating, strangulation, and sexual assault of Mary Anne Flynn; he was sentenced to death and appeals were unsuccessful.
- Biological slides (oral and vaginal) were created at autopsy; DNA testing was unavailable at trial. Slides were later located and subjected to various tests over decades, producing mixed results (partial male profile from an oral slide in 2006–2007; contested vaginal-slide testing in 2000).
- Apanovitch filed a fourth postconviction petition in 2012 based on DNA testing of the vaginal slide; at an evidentiary hearing the defense expert concluded Apanovitch was excluded as a contributor to the vaginal sample, and the trial court acquitted him of vaginal rape, dismissed the duplicate rape count, and granted a new trial on murder and burglary counts.
- The state appealed; the Eighth District affirmed. The Ohio Supreme Court accepted review and sua sponte raised whether the trial court had jurisdiction to entertain an untimely, successive postconviction petition under R.C. 2953.23(A).
- The court held Apanovitch’s petition did not fit either statutory gateway: it did not rely on a new constitutional right (R.C. 2953.23(A)(1)(b) requires constitutional error) and the DNA testing was not performed under Ohio’s statutory DNA-testing scheme (R.C. 2953.71–.81 or former .82), so R.C. 2953.23(A)(2) did not apply.
- Because R.C. 2953.23(A) bars courts from entertaining untimely or successive petitions unless an exception applies, the trial court lacked subject-matter jurisdiction; the Supreme Court vacated the trial court and appellate judgments and remanded for limited proceedings consistent with its opinion.
Issues
| Issue | Apanovitch's Argument | State's Argument | Held |
|---|---|---|---|
| Whether petition fits R.C. 2953.23(A)(1) (new right/unavoidable discovery plus constitutional error) | He asserted actual innocence of rape based on DNA and relied on unavoidable discovery/new evidence | The State argued no constitutional-error claim; actual-innocence alone is not a constitutional claim | Denied: Apanovitch failed R.C. 2953.23(A)(1)(b) because actual innocence is not a constitutional error under Herrera v. Collins |
| Whether petition fits R.C. 2953.23(A)(2) (DNA testing exception) | He argued any postconviction DNA testing should qualify, citing R.C. 2953.84 (statutory testing not exclusive) and equitable concerns | The State argued the statute permits the exception only when testing was performed under R.C. 2953.71–.81 or former .82; here testing was at the State’s request, not under that scheme | Denied: R.C. 2953.23(A)(2) is limited to testing performed pursuant to the statutory DNA-testing scheme; Apanovitch’s testing did not qualify |
| Whether failure to meet R.C. 2953.23(A) is jurisdictional and waivable | Apanovitch argued trial courts generally have jurisdiction over postconviction petitions and the State waived the defense | The State argued R.C. 2953.23(A) precludes courts from entertaining untimely/successive petitions absent an exception, so jurisdiction is lacking | Held: The statute is jurisdictional; failure to satisfy it deprived the trial court of subject-matter jurisdiction and is not waivable |
| Remedy and next steps (vacatur/remand; Crim.R. 33 role) | Argued trial court properly relied on Crim.R. 33 (parties stipulated) and equitable relief warranted | State initially litigated Crim.R. 33 but later argued no Crim.R. 33 motion was filed and remand unnecessary | Court vacated trial-court and appellate judgments for lack of jurisdiction; remanded for limited proceedings for trial court to determine whether any further action (e.g., under Crim.R. 33) is appropriate given procedural posture |
Key Cases Cited
- State v. Apanovitch, 33 Ohio St.3d 19 (Ohio 1987) (direct-appeal opinion upholding convictions and sentence)
- State v. Calhoun, 86 Ohio St.3d 279 (Ohio 1999) (postconviction proceedings are statutory collateral attacks; relief is limited to what statute provides)
- Herrera v. Collins, 506 U.S. 390 (U.S. 1993) (actual-innocence claim alone is not a constitutional claim)
- State v. Broom, 146 Ohio St.3d 60 (Ohio 2016) (postconviction relief is a statutory right)
- Patton v. Diemer, 35 Ohio St.3d 68 (Ohio 1988) (judgment rendered by a court lacking subject-matter jurisdiction is void ab initio)
- Van DeRyt v. Van DeRyt, 6 Ohio St.2d 31 (Ohio 1966) (court may vacate a void judgment as it was always a nullity)
- State v. Davis, 131 Ohio St.3d 1 (Ohio 2011) (subject-matter jurisdiction cannot be waived)