State v. Kirklin, 2014 Ohio 4301

In 1989 Kirklin pled guilty to aggravated murder (life with parole after 20 years), kidnapping (5–25 years, consecutive), and a consecutive 3-year gun specification; the state agreed not to seek death. Kirklin did not file a direct appeal.
More than 20 years later Kirklin, pro se, filed a motion to vacate his sentence claiming a Johnson violation (allied-offenses-of-similar-import test) and a Fifth Amendment double-jeopardy violation.
The trial court denied the motion; the court of appeals treated it as a petition for post-conviction relief under R.C. 2953.21 because it was filed after the time for direct appeal and sought relief based on constitutional claims.
R.C. 2953.23 requires post-conviction petitions to be filed within 180 days after the time for filing a direct appeal when no appeal was taken; that 180-day window had long expired here.
Statutory exceptions to the 180-day limit apply only if the petitioner was unavoidably prevented from discovering the facts or a new federal/state right applies retroactively and the petitioner shows by clear and convincing evidence that but for constitutional error no reasonable factfinder would find guilt; Kirklin’s claim did not satisfy these exceptions and was not based on DNA testing.
The court also noted that Johnson has been held nonretroactive by several Ohio appellate courts, so even if a retroactivity-based exception were available it would not help Kirklin.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness / Jurisdiction to hear post-conviction challenge	State: trial court lacks authority to entertain petition filed well after 180-day limit	Kirklin: seeks vacation of sentence under Johnson and Fifth Amendment; argues Johnson should apply retroactively	Court: petition untimely under R.C. 2953.23; no applicable statutory exception, so trial court properly dismissed
Retroactivity of State v. Johnson	State: Johnson is not retroactive and cannot revive untimely petitions	Kirklin: Johnson’s allied-offense test invalidates his consecutive sentences and should apply to his case	Court: follows appellate precedent that Johnson is not retroactive; even if considered, petitioner failed statutory-showing required for untimely relief

State v. Johnson, 128 Ohio St.3d 153, 942 N.E.2d 1061 (Ohio 2010) (adopted allied-offenses-of-similar-import test)
State v. Reynolds, 79 Ohio St.3d 158, 680 N.E.2d 1136 (Ohio 1997) (motion to vacate treated as petition for post-conviction relief when filed after direct appeal and seeking vacation on constitutional grounds)