2019 Ohio 2997
Ohio Ct. App.2019Background
- In April 2008 Gregory Clemmons was convicted by a jury of rape of a child under ten, sentenced to 15 years-to-life, and designated a Tier III sex offender; conviction was affirmed on direct appeal.
- Clemmons filed a timely postconviction petition in February 2009 raising ineffective assistance (alibi witnesses not called, failure to file notice of alibi) and related claims; that petition was denied.
- He later sought and was denied postconviction DNA testing and other collateral relief; multiple filings followed over the years.
- In 2017 the trial court held a limited resentencing hearing only to advise Clemmons of post-release control; an amended judgment was entered reflecting that advisement.
- In March 2018 Clemmons filed a second/postconviction petition challenging trial counsel effectiveness and other trial issues, asserting timeliness based on the 2017 amended judgment; the State moved to dismiss as successive and untimely.
- The trial court dismissed the 2018 petition as successive and untimely and barred by res judicata; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of 2018 petition | 2018 petition filed long after statutory deadline; transcripts filed in 2008–2009 so petition is untimely | 2017 amended judgment/resentencing restarted the one-year filing period | Petition untimely; resentencing on post-release control does not restart the postconviction clock |
| Successive-petition bars / R.C. 2953.23 | 2018 filing is a second postconviction petition and Clemmons failed to show extraordinary circumstances or unavoidable prevention | Clemmons contends claims are timely/reopened by amended judgment and present new facts | Petition is successive; no extraordinary circumstances shown to permit consideration |
| Res judicata | Claims here were raised or could have been raised earlier (direct appeal or 2009 petition) | Clemmons argues some allegations (e.g., fountains start date, expert consultation) are newly discovered or were not previously litigated | All claims barred by res judicata because they were known or could have been raised in earlier proceedings |
| Entitlement to evidentiary hearing | No sufficient operative facts showing a constitutional violation that would require a hearing | Clemmons sought an evidentiary hearing to develop factual claims (alibi witnesses, fountain dates, expert) | No hearing required; petitioner failed to provide materials showing denial of constitutional rights or that but for error no reasonable factfinder would convict |
Key Cases Cited
- State v. Fischer, 942 N.E.2d 332 (Ohio 2010) (resentencing limited to post-release control does not reset the postconviction filing period)
- State v. Calhoun, 714 N.E.2d 905 (Ohio 1999) (postconviction petition is a collateral civil attack; hearing not automatic; petitioner must present sufficient operative facts)
- State v. Saxon, 846 N.E.2d 824 (Ohio 2006) (res judicata bars relitigation of issues that were or could have been raised earlier)
- Grava v. Parkman Twp., 653 N.E.2d 226 (Ohio 1995) (res judicata precludes reopening matters decided by a final judgment)