State v. Mobarak, 2020 Ohio 249

Background

In March–July 2012 undercover officers bought products ("bath salts"/a‑PVP and "spice") from stores owned by Soleiman Mobarak; indictments followed in Aug. and Oct. 2012 charging trafficking/possession involving controlled‑substance analogs (CSAs).
Mobarak was tried, convicted, and in June 2014 sentenced to consecutive mandatory terms totaling 35 years.
While his direct appeal was pending he filed a postconviction petition (Dec. 2014) arguing CSAs were not criminalized during the charged period (relying on State v. Smith); his direct appeal (Mobarak I) initially reversed on that basis and he was released pending further review.
The Ohio Supreme Court later held in State v. Shalash that CSAs were criminalized effective Oct. 2011; it accepted conflict and reversed this Court in State v. Mobarak (Mobarak II), remanding for consideration of remaining assignments; on remand this Court affirmed convictions (Mobarak III).
Mobarak sought to amend his postconviction petition to claim the trial court violated his due process/right to a prompt hearing on the petition; the trial court denied the original and amended petitions, granted the State’s motion to revoke bond and enforce sentence, and this appeal followed.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Mobarak)	Held
Whether the trial court's delay/refusal to promptly rule on the postconviction petition violated due process and entitled Mobarak to relief	No; the petition failed to state substantive grounds and was properly dismissed, so any delay did not deny due process	Delay in ruling on the petition denied due process and "cost" him his freedom; the court had statutory duty to proceed to a prompt hearing under R.C. 2953.21(F)	Denied. No due‑process violation: petition lacked substantive grounds and was barred or inappropriate, so dismissal was proper
Whether Mobarak's original postconviction claim (Smith issue) was barred by res judicata	Res judicata bars relitigation because the Smith issue was raised (or could have been raised) on direct appeal	The claim was meritorious because Smith said CSAs not criminalized during charged period	Original petition barred by res judicata; the Smith argument had been raised on direct appeal and was therefore not cognizable in postconviction proceedings
Whether the amended claim (that the court failed to hold a prompt hearing) is a cognizable claim under R.C. 2953.21	The amended claim is not a statutory ground for postconviction relief and cannot cure the petition’s defects	The denial of a prompt hearing is a proper postconviction claim; court’s inaction requires relief without mandamus/procedendo	Denied. A claim that the court failed to promptly rule is not one of the grounds for relief under R.C. 2953.21; the proper remedy for undue delay is an extraordinary writ (procedendo/mandamus), not postconviction relief
Whether filings in the closed companion case (12CR‑3864) affected the petition	State noted petitions were improperly filed in the closed case as well as the active case	Mobarak had filed in both case numbers; sought relief across both dockets	The petitions filed in the closed case (12CR‑3864) were improper; dismissal as to that case is affirmed

Key Cases Cited

State v. Shalash, 148 Ohio St.3d 611 (2016) (held controlled‑substance analogs were criminalized effective October 2011)
State v. Mobarak, 150 Ohio St.3d 26 (2016) (Supreme Court reversed the appellate court and remanded in light of Shalash)
State v. Szefcyk, 77 Ohio St.3d 93 (1996) (res judicata bars postconviction claims that were or could have been raised on direct appeal)
State v. Jackson, 64 Ohio St.2d 107 (1980) (no automatic right to an evidentiary hearing on postconviction petition)
State v. Calhoun, 86 Ohio St.3d 279 (1999) (postconviction petitions may be denied without a hearing when they fail to demonstrate substantive grounds)
State ex rel. Sherrills v. Common Pleas, 72 Ohio St.3d 461 (1995) (procedendo is the appropriate remedy when a court refuses or unduly delays entering judgment)