State v. Barker
2017 Ohio 6994
| Ohio Ct. App. | 2017Background
- Kevin J. Barker was indicted (June 2012) on RICO (engaging in a pattern of corrupt activity), two counts of promoting prostitution, and three counts of possession of criminal tools; convicted after a jury trial (March 2013).
- Sentenced to an aggregate eight-year prison term, with fines and costs; convictions were affirmed on direct appeal.
- In March 2016 Barker filed a motion in the trial court under Crim.R. 36 and App.R. 9(E) to correct the trial record, alleging omissions: (1) the court’s position on whether two promoting-prostitution violations were alternative means or multiple acts, and (2) a ruling about whether a detective could testify about an audio recording after it was played.
- The trial court denied the motion as untimely, noting Barker’s direct appeal had been resolved and that App.R. 9(E) applies to pending appeals; it also alternatively treated the motion as an untimely post-conviction petition under R.C. 2953.21–.23.
- Barker appealed the denial; the appellate court addressed applicability of Crim.R. 36, App.R. 9(E), and the timeliness rules for post-conviction relief and affirmed the trial court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Crim.R. 36 permits correction of the alleged omissions in the trial record | Crim.R. 36 allows correction of clerical mistakes in the record | Barker argued omissions were errors/oversights needing correction | Held: Crim.R. 36 inapplicable because alleged omissions were not clerical mistakes |
| Whether App.R. 9(E) authorized correcting the record absent a pending appeal | Trial court: App.R. 9(E) applies to appellate procedure and requires an appeal to be pending | Barker sought correction under App.R. 9(E) even without a pending appeal | Held: App.R. 9(E) not applicable where no appeal was pending; trial court properly denied relief |
| If construed as a post-conviction petition, whether the filing was timely or excused | State: petition untimely; court lacks jurisdiction absent statutory excuse | Barker did not claim statutory grounds (new law or unavoidable prevention) to excuse delay | Held: Untimely under R.C. 2953.21; Barker failed to satisfy R.C. 2953.23(A) to excuse untimeliness |
| Whether the procedural disposition required addressing Barker’s substantive claims about omitted rulings | State: procedural defects are dispositive; no need to reach merits | Barker sought substantive corrections to preserve appeal rights | Held: Because denial on procedural grounds was proper, court declined to reach the merits |
Key Cases Cited
- State v. Gondor, 112 Ohio St.3d 377 (2006-Ohio-6679) (post-conviction relief is a collateral civil attack and not an appeal)
- State v. Steffen, 70 Ohio St.3d 399 (1994) (post-conviction proceedings provide only statutory rights conferred by the legislature)