2011 Ohio 4529
Ohio Ct. App.2011Background
- King was convicted on 61 counts of pandering obscenity involving a minor after a 2005 jury trial; one count dismissed.
- In 2006, the court classified King as a sexual predator and habitual offender and sentenced him to 36½ years.
- King pursued multiple post-conviction and related appeals, including petitions denied by trial court and affirmed by this court.
- On November 2, 2010, King filed a successive petition to vacate or set aside judgment; the trial court denied January 20, 2011.
- This court reviews whether the successive petition was timely and whether grounds for relief exist under RC 2953.23.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial counsel was ineffective for not objecting to testimonial evidence | King argues Melendez-Diaz requires confrontation of the report’s author. | King contends the report is testimonial and without the author, violating Crawford/Melendez-Diaz. | First assignment overruled; petition untimely/without jurisdiction to consider. |
| Whether the petition was timely under RC 2953.23 and not barred by res judicata | King asserts timely filing under new federal/right retroactive to petition. | State asserts untimely petition and res judicata bars relief. | Second assignment overruled; petition barred by timing and res judicata; judgment affirmed. |
Key Cases Cited
- Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (U.S. 2009) (testimonial reports require confrontation)
- Crawford v. Washington, 541 U.S. 36 (U.S. 2004) (Confrontation Clause protects cross-examination for out-of-court statements)
- State v. Perry, 5 Ohio St.3d 134 (Ohio 1988) (timeliness and procedure for postconviction relief)
- State v. Szefcyk, 77 Ohio St.3d 93 (Ohio 1996) (res judicata applies to postconviction relief)
- State v. Reynolds, 79 Ohio St.3d 158 (Ohio 1997) (issues that could have been raised on direct appeal are barred)
- State v. Cole, 2 Ohio St.3d 112 (Ohio 1982) (ineffective assistance claims must be raised on direct appeal or postconviction)
- State v. Murphy, Dec. 26, 2000, Franklin App. No. 00AP-233 (Ohio 2000) (postconviction relief purposes narrow use)
- State v. Jackson, 64 Ohio St.2d 107 (Ohio 1980) (standards for collateral attack on convictions)
- State v. Lewis, 2008-Ohio-3113 (Ohio) (policy on second petitions and res judicata)