State v. Wharton
48 N.E.3d 123
Ohio Ct. App.2015Background
- In 2005 James Wharton was indicted for murder, felony murder (based on felonious assault as the predicate), and felonious assault; murder count was later dismissed. A jury convicted him of felonious assault; a second jury later convicted him of felony murder. Sentences were ordered to run concurrently (15 years to life).
- Wharton appealed; this Court affirmed his convictions in 2007. He later sought resentencing in 2010 on post-release-control grounds; the State conceded error and the trial court held a de novo hearing.
- At the 2010 resentencing the court merged the felonious assault count into the felony murder count as allied offenses, but the resentencing entry was vacated on appeal because the trial court exceeded its authority beyond addressing only post-release control; remand was limited to correcting post-release-control only.
- Nearly three years after that remand Wharton filed a petition to vacate his judgment, claiming his double jeopardy rights were violated by the second prosecution and asserting ineffective assistance of counsel for failing to raise that double jeopardy claim earlier.
- The trial court denied the petition as untimely under the post-conviction statute and as barred by res judicata; Wharton appealed and the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument (Wharton) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether retrying Wharton on felony murder after an earlier trial violated double jeopardy | Second prosecution for felony murder (after felonious assault conviction) violated double jeopardy | Claim could have been raised earlier; not a timely post-conviction claim and barred by res judicata | Double jeopardy claim is barred by res judicata and untimely; petition denied |
| Whether counsel's failure to timely raise double jeopardy constitutes unavoidable prevention of filing and excuses statutory time bar | Prior counsel were ineffective and Wharton justifiably relied on them, so delay is excused | Reliance on counsel does not meet the statutory "unavoidably prevented" standard; issues were apparent from the record | Ineffective-assistance argument cannot overcome timeliness or res judicata; petition denied |
Key Cases Cited
- State v. Perry, 10 Ohio St.2d 175 (Ohio 1967) (establishes framework for post-conviction relief as statutory remedy)