State v. Bender
2021 Ohio 1931
Ohio Ct. App.2021Background:
- Jason G. Bender was indicted on multiple felonies (felonious assault, kidnapping, rape, weapon under disability) and convicted by a jury on April 24, 2019.
- Trial transcript was filed in the court of appeals on September 9, 2019; sentencing occurred May 29, 2019; direct appeal affirmed this Court on March 2, 2020.
- Bender filed a pro se petition for post-conviction relief on December 1, 2020 asserting ineffective assistance of counsel and prosecutorial misconduct, relying on a recorded interview disclosed in discovery.
- The trial court dismissed the petition without a hearing as untimely under R.C. 2953.21; Bender appealed, arguing COVID-19 tolling made the filing timely.
- The court applied Ohio Supreme Court guidance on H.B. 197 tolling (tolling only deadlines that fell within March 9–July 30, 2020) and concluded Bender’s deadline (Sept. 9, 2020) was after the emergency period so tolling did not apply.
- The court also held Bender’s substantive claims were barred by res judicata because they could have been raised on direct appeal, and rejected his judicial-bias claim for lack of statutory procedure and supporting evidence.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of post-conviction petition | Petition untimely: filed >365 days after transcript; no tolling | Tolling under Am.Sub.H.B. 197/Supreme Court order for COVID-19 extended deadline | Untimely: tolling applies only to deadlines expiring during Mar 9–Jul 30, 2020; Sept. 9 deadline not tolled |
| Preclusion/res judicata of claims | Claims could have been raised at trial or on direct appeal and are therefore barred | Claims arise from disclosed video and are new; ineffective-assistance not adequately raised on appeal | Barred by res judicata: evidence was available before/directly related to trial; ineffective-assistance was raised on direct appeal and counsel on appeal differed but claim was litigated |
| Judicial bias / due process | No bias; dismissal alone insufficient and statutory disqualification procedure not invoked | Trial judge was biased; petition denied due to bias | No merit: plaintiff did not use R.C. 2701.03 procedure and provided no evidence of bias; judicial rulings alone do not establish bias |
Key Cases Cited
- State v. Keith, 891 N.E.2d 1191 (defining postconviction review as collateral relief)
- State v. Cunningham, 65 N.E.3d 307 (trial court lacks jurisdiction over untimely petitions absent R.C. 2953.23 exceptions)
- In re Tolling of Time Requirements Imposed by Rules Promulgated by Supreme Court & Use of Technology, 141 N.E.3d 974 (Ohio 2020) (tolling legislation applies only to deadlines that expired during the emergency period)
- State v. Perry, 226 N.E.2d 104 (res judicata bars claims that were or could have been raised on direct appeal)
- Liteky v. United States, 510 U.S. 540 (judicial rulings alone almost never constitute bias)
- State ex rel. Pratt v. Weygandt, 132 N.E.2d 191 (definition of judicial bias)
- State v. Corchado, 93 N.E.3d 150 (due-process/judicial-bias standards in postconviction context)
- State v. Sullivan, 102 N.E.3d 86 (abuse-of-discretion standard for trial-court decisions)