State v. Lowery
2011 Ohio 2827
Ohio Ct. App.2011Background
- Lowery was indicted on two aggravated robbery counts with firearm specifications, unlawful possession of a dangerous ordnance, and having weapons under a disability; gun charges severed, robbery convictions by jury, weapons under a disability pled guilty, dangerous ordnance dismissed; sentences totaled eleven years with consecutive terms for robberies and gun specs; direct appeal filed and affirmed; petition for post-conviction relief filed May 5, 2010 asserting indictment defects; petition denied as untimely and due to res judicata; issues raised include defects in counts 3 and 4, multiplicity, and lack of subject-matter jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of post-conviction petition under 2953.21(A)(2) | Lowery claims timely filing. | State contends untimely filing beyond 180 days. | Untimely; no qualifying exception proven. |
| Indictment defects in counts 3 and 4 affecting jurisdiction | Lowery argues lack of subject-matter jurisdiction due to defective indictment. | State contends defects could be challenged only on direct appeal; collateral attack barred by precedents. | Not reviewable in untimely petition; res judicata bars claims. |
| Multiplicity and double jeopardy from identical aggravated robbery counts | Lowery asserts two identical counts violate double jeopardy. | State defends validity; no improper multiplicity established. | Claims rejected; no jurisdictional flaw found for post-conviction relief. |
| Effect of direct-appeal pendency on filing period tolling | Lowery contends tolling during direct appeal. | State maintains no tolling rule applicable. | Tolled argument rejected; petition still untimely. |
Key Cases Cited
- Cimpritz v. State, 158 Ohio St. 490 (Ohio 1953) (indictment defective; void for lack of jurisdiction on direct collateral)
- State v. Wozniak, 172 Ohio St. 517 (Ohio 1961) (after conviction, collateral attack unavailable if jurisdiction exists)
- Midling v. Perrini, 14 Ohio St.2d 106 (Ohio 1968) (clarifies Cimpritz; collateral attack limitations)
- State v. D’Ambrosio, 73 Ohio St.3d 141 (Ohio 1995) (res judicata bars post-conviction claims that could have been raised earlier)
- State v. Perry, 10 Ohio St.2d 175 (Ohio 1967) (establishes res judicata doctrine for post-conviction)
- State v. Roberson, 2010-Ohio-3702 (Ohio App. 6th Dist. 2010) (tolling of time limits during direct appeal rejected for timely filing)