2019 Ohio 2824
Ohio Ct. App.2019Background
- John Cody (aka Bobby Thompson) was convicted in 2013 of multiple counts including engaging in a pattern of corrupt activity, money laundering, tampering with records, and identity fraud arising from an alleged $2 million sham charity scheme; he received a 28-year sentence.
- On direct appeal this court vacated 11 identity-fraud convictions (Counts 13–23) for lack of Ohio jurisdiction and struck a Veterans Day solitary-confinement sentence provision; other convictions were affirmed.
- Cody filed multiple collateral challenges and related motions over several years (postconviction petitions, motions to correct the record, motions for new trial, delayed appeals, App.R. 26 reopening), many of which were denied as untimely or barred.
- In 2018 Cody filed motions to correct the record and petitions to vacate his conviction/sentence and for leave to file a delayed new-trial motion, claiming sentencing/jurisdictional defects and newly discovered evidence (including FOIA/CIA materials and affidavits).
- The trial court denied his motions; the court of appeals (consolidating three appeals) affirmed, holding Cody’s claims were barred by law-of-the-case and res judicata, and that his Crim.R. 33 and postconviction filings were untimely and failed to meet the clear-and-convincing/unavoidably-prevented standards.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Cody) | Held |
|---|---|---|---|
| Jurisdiction / validity of sentence on Count 1 (pattern of corrupt activity) | Trial court and state argue claims already litigated/appealed; conviction and sentence stand | Cody argues the trial court lacked jurisdiction over Count 1 and his sentence is void and must be vacated | Denied: claim barred by law-of-the-case and res judicata; appeal not well taken |
| Motion to correct record / successive identical motions | State argues successive, substantively identical motions are improper and untimely | Cody seeks to correct record and vacate conviction based on same arguments previously rejected | Denied: repetitive filings prohibited; previous adverse rulings control under Nolan law-of-the-case principle |
| Motion for new trial (Crim.R. 33) — newly discovered evidence | State contends Cody failed to show he was unavoidably prevented from discovering evidence within Crim.R. 33(B) and did not meet criteria for a new trial | Cody claims material new evidence (CIA/FOIA materials, affidavits, transcripts) that would change outcome | Denied: motion untimely; Cody did not clearly and convincingly show unavoidable prevention nor satisfy Smith/Barnes factors for newly discovered evidence |
| Postconviction petition timeliness under R.C. 2953.21/.23 | State: petition is untimely and does not satisfy the statutory exceptions requiring unavoidable prevention or a new retroactive right; no clear-and-convincing proof of innocence | Cody relies on purported new evidence and FOIA responses to excuse delay and to challenge conviction | Denied: petition untimely; Cody failed to show unavoidable prevention or meet clear-and-convincing standard; trial court’s denial not an abuse of discretion |
Key Cases Cited
- Nolan v. Nolan, 11 Ohio St.3d 1 (law-of-the-case doctrine explained)
- State v. Schiebel, 55 Ohio St.3d 71 (standard for reviewing Crim.R. 33 rulings)
- State v. Darmond, 135 Ohio St.3d 343 (abuse-of-discretion definition)
- State v. Perry, 10 Ohio St.2d 175 (res judicata bar for claims that could have been raised on direct appeal)
- State v. Gondor, 112 Ohio St.3d 377 (standard of review for postconviction petitions)