State v. Burton
2017 Ohio 7588
| Ohio Ct. App. | 2017Background
- In Feb. 2010 Jessica Burton pled guilty to felony OVI (fourth degree) based on three prior misdemeanor OVI convictions (Akron 2004; Barberton 2007 & 2008). She was sentenced to 60 days jail and two years community control and did not appeal.
- In Oct. 2015 Burton faced a new felony OVI charge; review of her prior convictions prompted her to file a post-conviction petition in Apr. 2016 challenging the existence/validity of the 2004 Akron misdemeanor conviction (claiming possible identity theft by her twin sister and lack of counsel on the Akron record).
- Burton argued she was unavoidably prevented from discovering the Akron conviction (due to counsel’s failure and mental-health/medication issues) and asserted ineffective assistance of counsel in the 2009 proceeding.
- The trial court held a hearing, found Burton not credible on the identity-theft claim, concluded the Akron conviction was public since 2004 and thus discoverable, and denied the petition as untimely under R.C. 2953.21(A)(2) and not meeting the exceptions in R.C. 2953.23(A)(1).
- On appeal the Ninth District reviewed de novo the statutory-timeliness/legal issue, affirmed the trial court, held Burton failed to show she was unavoidably prevented from discovering the conviction, and held her claims were barred by res judicata because they could have been raised on direct appeal.
Issues
| Issue | Burton's Argument | State's Argument | Held |
|---|---|---|---|
| Whether Burton was "unavoidably prevented" from discovering the Akron 2004 conviction so as to excuse filing an untimely post-conviction petition | Burton: counsel in 2009 failed to investigate/prior convictions weren’t discussed; mental-health/medication issues and identity-theft by twin prevented discovery | State: Akron conviction was public record since 2004 and discoverable with reasonable diligence; lack of resources/ignorance not excusing timeliness | Held: Burton failed to show unavoidable prevention; petition untimely and properly denied |
| Whether Burton’s ineffective-assistance claim permits review despite untimeliness | Burton: counsel’s alleged failures meant a constitutional error that would meet R.C. 2953.23(A)(1)(b) | State: Ineffective-assistance allegations rest on facts apparent on the record and could have been raised on direct appeal; res judicata bars review | Held: Court did not reach merits (dispositive timeliness ruling); claims barred by res judicata and unavailable for untimely petition |
| Whether the trial court erred by not expressly resolving ineffective-assistance claim in its journal entry | Burton: Trial court should have addressed the IAC claim on the merits | State: Court lacked statutory authority to reach merits because petition untimely and exceptions not shown; no error in declining to reach merits | Held: Moot — appellate court declined to address remaining assignments because timeliness/res judicata resolution was dispositive |
Key Cases Cited
- State v. Gondor, 112 Ohio St.3d 377 (Ohio 2006) (trial-court fact findings after post-conviction hearing receive deference)
- State v. Reynolds, 79 Ohio St.3d 158 (Ohio 1997) (res judicata bars raising on post-conviction issues that could have been raised on direct appeal)