State v. Shepherd
2014 Ohio 1736
Ohio Ct. App.2014Background
- Shepherd was convicted in 2002 of rape and attempted kidnapping, with sexually violent predator, repeat violent offender, and sexually motivated specs, and sentenced to 38 years to life.
- Trial evidence showed the victim had severe mental disabilities; expert placed her mental age around five; IQ approximately 33–34.
- The victim testified to a long relationship with Shepherd; officer and expert contradicted victim's capacity to consent.
- On appeal, this Court affirmed the convictions and sentence (citation from prior proceedings).
- In October 2013, Shepherd filed Civ.R. 60(B) motion for relief from judgment attaching an affidavit from the victim alleging no rape occurred; the court treated it as a postconviction petition and denied as untimely, striking the affidavit as improperly notarized.
- The court held the petition untimely under R.C. 2953.21 and declined to treat Civ.R. 60(B) as a vehicle for collateral attack absent timely filing or eligible exceptions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Civ.R. 60(B) motion can be treated as a postconviction petition despite timing | Shepherd argued he was entitled to relief; filing should be considered timely or with exceptions. | Court properly treated as untimely postconviction petition under R.C. 2953.21. | Untimely; no applicable exception shown. |
| Whether the affidavit attached to the petition should be considered despite notarization defects | Affidavit contains victim’s statements undermining the rape claim and should be considered. | Affidavit was not properly notarized and unreliable due to victim's alleged mental condition. | Affidavit properly not considered; notarization defect upheld. |
Key Cases Cited
- State v. Schlee, 117 Ohio St.3d 153 (2008-Ohio-545) (permits treating Civ.R. 60(B) motions as postconviction relief)
- State v. Calhoun, 86 Ohio St.3d 279 (1999-Ohio-) (time limits for postconviction relief and default rules)
- Cleveland v. Palik, 2011-Ohio-6082 (8th Dist. Cuyahoga No. 96760) (untimely postconviction relief and related standards)
- State v. Johns, 2010-Ohio-162 (8th Dist. Cuyahoga No. 93226) (jurisdictional time limits for postconviction relief)
- State v. Hutton, 2007-Ohio-5443 (8th Dist. Cuyahoga No. 80763) (limitations and hearing requirements for postconviction petitions)