State v. Perkins
2011 Ohio 5070
Ohio Ct. App.2011Background
- Perkins convicted in August 2008 by jury of three counts of felonious assault with a deadly weapon and two counts resulting in serious physical harm; aggregate eight-year term, to be served concurrently; convictions arise from Belmont Billiards altercation causing severe head injuries.
- Postconviction-related filings: Perkins filed a June 25, 2009 petition for postconviction relief and a June 29, 2009 motion for leave to file a motion for new trial, along with multiple related motions.
- Trial court denied relief in a single judgment entry, granting summary judgment to the State on the postconviction petition and related motions; Perkins appeals.
- The appellate court reviews timeliness under R.C. 2953.21, corrected by State v. Everette (2011) holding that only a certified written transcript counts for accrual of the 180-day period; written transcript filed January 8, 2009, making Perkins’ petition timely.
- Perkins asserted seven grounds for relief, but the court applied res judicata to bar many claims and used an abuse-of-discretion standard to evaluate the petition and the accompanying affidavits and exhibits.
- The court ultimately affirmed the trial court’s denial of postconviction relief and the motion for a new trial, including denial based on lack of strong probability of different outcome and waiver due to timing and prior appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of postconviction relief petition | Perkins argues timely under Everette | State contends untimely due to 180-day clock | Timely; written transcript filed January 8, 2009 (Everette corrected rule). |
| Evidentiary hearing on postconviction relief | Affidavits and exhibits establish grounds for hearing | No substantive grounds shown; no automatic hearing | No error; no abuse of discretion; no mandatory hearing. |
| Juror misconduct claims | Two misconduct instances affected rights | No demonstrated prejudice; not shown to affect outcome | Without merit; no strong probability of different result. |
| Ineffective assistance of counsel | Counsel failed to pursue newly discovered exculpatory evidence | Evidence known to Perkins; not ineffective assistance; res judicata bars | Without merit; no prejudice; barred by res judicata. |
| Newly discovered evidence and Crim.R. 33 motion for new trial | Eleven grounds show strong probability of different outcome | Evidence hearsay, not newly discovered with strong probability | No abuse of discretion; no strong probability of different outcome; motion denied. |
Key Cases Cited
- State v. Calhoun, 86 Ohio St.3d 279 (1999-Ohio-102) (postconviction relief standards; evidentiary considerations)
- State v. Cole, 2 Ohio St.3d 112 (1982) (when to grant an evidentiary hearing; standard of review)
- State v. Jackson, 64 Ohio St.2d 107 (1980) (substance of grounds for relief and court's discretion)
- State v. Perry, (1967) 10 Ohio St.2d 175 (1967) (bar to raising issues on postconviction that could have been raised on direct appeal)
- State v. Bradley, 42 Ohio St.3d 136 (1989) (ineffective assistance test; prejudice inquiry may dispose claim)