State v. Ulmer
2016 Ohio 2873
Ohio Ct. App.2016Background
- In 2008 police, using a confidential informant, intercepted Donald Ulmer after she arranged delivery of oxycontin; officers smelled marijuana and found a blunt, scissors, baggie, and over 1,000 oxycontin tablets in Ulmer's vehicle.
- Ulmer was indicted on ten counts including possession and trafficking in drugs (major-drug-offender specifications), multiple criminal-tool counts, possession of marijuana, and tampering with evidence.
- Ulmer pled no contest to possession (first-degree), trafficking (first-degree), and tampering with evidence (third-degree). The court sentenced him to 10 years (possession) + 5 years consecutive (trafficking) and 5 years concurrent (tampering), total 15 years.
- Ulmer’s direct appeal and subsequent App.R. 26(B) reopening application were denied; the Ohio Supreme Court denied further review.
- Nearly six years after conviction Ulmer filed a motion titled "motion to merge allied offenses," which the trial court denied; the appellate court construed the filing as a petition for postconviction relief.
- The Fourth District reversed the trial court, holding the petition was untimely under R.C. 2953.21, the trial court lacked jurisdiction, and the petition must be dismissed for lack of jurisdiction.
Issues
| Issue | State's Argument | Ulmer's Argument | Held |
|---|---|---|---|
| Whether possession and trafficking convictions should have been merged as allied offenses | Res judicata bars relitigation; issues could have been raised on direct appeal | Possession and trafficking were allied offenses of similar import; merger required | The court did not reach the merger merits because Ulmer's filing was an untimely postconviction petition and the trial court lacked jurisdiction to decide it |
| Sufficiency/manifest weight of evidence for tampering with evidence | Evidence supported conviction (facts observed, conduct at scene) | No proof Ulmer intended to impair evidence availability; insufficient and against manifest weight | Court declined to review merits due to untimely petition; jurisdictional dismissal |
| Ineffective assistance of trial counsel for failing to preserve tampering objection | Res judicata would bar relitigation but exception exists when same counsel represented at trial and on appeal | Counsel ineffective for failing to preserve objection to tampering charge | Court noted exception to res judicata may apply but still dismissed petition as untimely; did not adjudicate ineffectiveness on merits |
| Timeliness and jurisdiction of postconviction petition | Petition barred by res judicata and untimely under R.C. 2953.21; trial court lacked jurisdiction | Petition should allow merger/relief despite delay | Petition filed far beyond 180-day limit and Ulmer failed to satisfy statutory exceptions; trial court lacked jurisdiction — petition dismissed |
Key Cases Cited
- State v. Calhoun, 86 Ohio St.3d 279 (1999) (postconviction relief is a narrow statutory collateral remedy)
- State v. Lentz, 70 Ohio St.3d 527 (1994) (res judicata exception for ineffective-assistance claims when same counsel represented at trial and on direct appeal)
- State v. Cole, 2 Ohio St.3d 112 (1982) (same principle regarding counsel continuity and postconviction claims)
- State v. Murnahan, 63 Ohio St.3d 60 (1992) (ineffective assistance of appellate counsel not cognizable in R.C. 2953.21 postconviction; App.R. 26(B) is proper avenue)
- State v. Perry, 10 Ohio St.2d 175 (1967) (res judicata bars claims raised or that could have been raised on direct appeal)