State v. KingState v. King
For Appellant: RICHARD KING (#489-103), Chillicothe Correctional Institution, P.O. Box 5500, Chillicothe, OH 45601
For Appellee: D. MICHAEL HADDOX, MUSKINGUM COUNTY PROSECUTOR; ROBERT L. SMITH 0039297, Assistant Prosecuting Attorney, 27 N. Fifth Street, Zanesville, OH 43701
Delaney, J.
OPINION
{¶1} Defendant-Appellant Richard King appeals the January 20, 2011 decision of the Muskingum County Court of Common Pleas to deny Appellant‘s Successive Petition to Vacate or Set Aside Judgment of Conviction of Sentence. Plaintiff-Appellee is the State of Ohio.
{¶2} Appellant was indicted on one count of pandering obscenity involving a minor, a felony of the second degree, in violation of
{¶3} A jury trial was held. On January 27, 2005, the jury found Appellant guilty on sixty-one counts of the indictment. The remaining count was dismissed.
{¶4} On February 28, 2005, the trial court conducted a classification hearing finding Appellant to be a sexual predator and a habitual sex offender. The trial court sentenced Appellant to 36 1/2 years in prison.
{¶5} Appellant timely appealed his conviction, sexual predator classification, and sentence. Appellant was represented by new counsel on appeal.
{¶6} By Judgment Entry and Opinion dated January 19, 2006, this Court affirmed the trial court‘s actions as to the errors raised in assignments I, II and III but remanded with instructions as to assignment of error IV that alleged error in sentencing. State v. King, 5th Dist. No. CT05-17, 2006-Ohio-226. Appellant filed a timely appeal of
{¶7} On February 6, 2006, Appellant was brought before the trial court for resentencing pursuant to our remand in State v. King, 5th Dist. No. CT05-17, 2006-Ohio-226. The trial court resentenced Appellant to a sentence of an aggregate of 36 1/2 years in the Ohio Department of Corrections. The trial court did not journalize the resentencing conducted on February 6, 2006, due to the issuance of State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470, 2006-Ohio-856 on February 27, 2006. The trial court held a resentencing hearing on March 6, 2006 pursuant to our remand and the requirements of State v. Foster, supra. The trial court resentenced Appellant to a sentence of an aggregate of 36 1/2 years in the Ohio Department of Corrections. The resentencing entry was journalized and filed on March 8, 2006.
{¶8} Appellant appealed the March 8, 2006 resentencing. On November 13, 2006, this Court affirmed Appellant‘s sentence. State v. King, 5th Dist. No. 06-20, 2006-Ohio-6566. The Ohio Supreme Court declined to accept Appellant‘s appeal of that decision. State v. King (2007), 114 Ohio St.3d 1508, 2007-Ohio-4285.
{¶9} Additionally, on October 20, 2005, Appellant filed a petition for post-conviction relief in the trial court. On March 6, 2006, the trial court denied Appellant‘s post-conviction petition. Represented by new counsel, Appellant filed a timely appeal of the trial court‘s decision to this Court. On May 30, 2007, this Court affirmed the trial court‘s decision dismissing Appellant‘s petition for post-conviction relief. State v. King, 5th Dist. No. CT2006-0021, 2007-Ohio-2810.
{¶11} On August 15, 2006, Appellant filed a Motion for a New Trial claiming newly discovered evidence. On January 9, 2007, the trial court denied Appellant‘s motion. On September 28, 2007, this Court affirmed the trial court‘s decision denying Appellant‘s motion for new trial. State v. King, 5th Dist. No. CT2007-0004, 2007-Ohio-5297.
{¶12} On October 8, 2008, Appellant filed a “Motion For Relief From Judgment” pursuant to
{¶13} Appellant then filed a “Petition to Vacate or Set Aside Judgment of Conviction or Sentence” on March 13, 2009. On April 8, 2009, the trial court issued an entry denying Appellant‘s motion. Appellant continued to file papers in this matter, filing a “Motion to Correct Record and Reconsideration” on April 23, 2009, and a “Reply to State‘s Response to Defendant‘s Motion to Correct Record and Reconsideration.” On April 27, 2009, the trial court denied Appellant‘s motion. Appellant appealed the April 8, 2009 judgment entry denying his post-conviction petition.
{¶14} On July 30, 2009, this Court affirmed the decision of the trial court in State v. King, 5th Dist. No. CT2009-0022, 2009-Ohio-3854. Appellant filed a motion for
{¶15} On September 15, 2009, Appellant filed a Motion to Correct Sentence/Re-Sentence Defendant with the trial court. The trial court issued its decision on October 14, 2009 denying Appellant‘s motion. Appellant filed an appeal of the trial court‘s decision and this Court affirmed the decision of the trial court in State v. King, 5th Dist. No. CT2009-0047, 2010-Ohio-798.
{¶16} On November 2, 2010, Appellant filed the instant Successive Petition to Vacate or Set Aside Judgment of Conviction of Sentence. The trial court denied Appellant‘s petition on January 20, 2011. It is from this decision Appellant now appeals.
ASSIGNMENTS OF ERROR
{¶17} Appellant raises two Assignments of Error:
{¶18} “I. THE APPELLANT‘S UNITED STATES SIXTH AMENDMENT RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED WHEN COUNSEL FAILED TO OBJECT TO THE PRESENTATION OF AN ANALYSIST [SIC] REPORT AT TRIAL WITHOUT THE ANALYSIST [SIC] BEING PRESENT AT TRIAL TYO [SIC] CROSS EXAMINE THEREBY VIOLATING THE APPELLANT‘S RIGHTS TO CONFRONT WITNESSES AGAINST HIM.
{¶19} “II. THE APPELLANT‘S SIXTH AMENDMENT RIGHT [SIC] EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED WHEN TRIAL COUNSEL FAILED TO OBJECT TO THE AMENDING OF THE INDICTMENT THE DAY THE TRIAL STARTED.”
{¶21} Pursuant to
{¶22} “A petition for postconviction relief is a means to reach constitutional issues that would otherwise be impossible to reach because the evidence supporting those issues is not contained in the record of the petitioner‘s criminal conviction.” State v. Perry, 5th Dist. No. 2010CA00185, 2011-Ohio-274, ¶ 12, citing State v. Murphy (Dec. 26, 2000), Franklin App. No. 00AP-233. “Although designed to address claimed constitutional violations, the post-conviction relief process is a civil collateral attack on a criminal judgment, not an appeal of that judgment.” Id., citing State v. Calhoun (1999), 86 Ohio St.3d 279, 281, 714 N.E.2d 905, 1999-Ohio-102; State v. Steffen (1994), 70
{¶23} As an initial matter, we must examine the trial court‘s ability to review the Appellant‘s petition for postconviction relief.
{¶24} Appellant filed a direct appeal of his conviction and sentence. Appellant has also previously filed a petition for postconviction relief. It is undisputed that Appellant‘s second petition for postconviction relief was filed beyond the time requirement in
{¶25} The statute provides, in pertinent part:
{¶26} “* * * [A] court may not entertain a petition filed after the expiration of the period prescribed in division (A) of that section or a second petition or successive petitions for similar relief on behalf of a petitioner unless division (A)(1) or (2) of this section applies:
{¶27} “(1) Both of the following apply:
{¶29} “(b) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable fact finder would have found the petitioner guilty of the offense of which the petitioner was convicted or, if the claim challenges a sentence of death that, but for constitutional error at the sentencing hearing, no reasonable fact finder would have found the petitioner eligible for the death sentence.”
{¶30} We now examine Appellant‘s Assignments of Error as to his petition to determine whether it was timely filed under
I.
{¶31} Appellant argues in his first Assignment of Error that his trial counsel was ineffective because he failed to object to police officer testimony referring to a report from the National Center for Missing and Exploited Children regarding the identity and ages of the minors depicted in the images found on Appellant‘s computer. Appellant contends that his Sixth Amendment right to confront witnesses was violated when the officers testified regarding the report when the preparer of the report was not made available as a witness.
{¶32} Appellant relies upon the United States Supreme Court‘s decision in Melendez-Diaz v. Massachusetts (2009), -- U.S. -- 129 S.Ct. 2527, 174 L.Ed.2d 314, to
{¶33} In Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177, the Supreme Court held that, under the Confrontation Clause of the Sixth Amendment, testimonial statements made out of court cannot be admitted unless the witness is available for cross examination. Later, in Melendez-Diaz, the Court clarified Crawford to include that laboratory reports prepared for trial are testimonial and that admission of such reports into evidence without the testimony of the lab analyst presents a Confrontation Clause violation.
{¶34} The State argues that the holding in Melendez-Diaz is not a new federal right, but the application of a right already established by Crawford at the time of Appellant‘s original trial in 2005. Further, the report at issue in Melendez-Diaz was a laboratory report. The report in the present case was the examination of images by the National Center for Missing and Exploited Children.
{¶36} We find the Appellant‘s utilization of Melendez-Diaz to argue that his petition for postconviction for relief is timely filed under
{¶37} Appellant‘s first Assignment of Error is overruled.
II.
{¶38} We next address Appellant‘s second Assignment of Error to determine whether the petition for postconviction relief was timely filed under the statutory rules or is otherwise procedurally barred. Appellant states in his second Assignment of Error that he received ineffective assistance of counsel when his counsel failed to object when the trial court permitted the State to amend the indictment on the day of trial.
{¶40} We further find the doctrine of res judicata bars Appellant‘s argument. Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding, except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on an appeal from that judgment. State v. Szefcyk (1996), 77 Ohio St.3d 93, 671 N.E.2d 233, syllabus, approving and following State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104, paragraph nine of the syllabus. It is well settled that, “pursuant to res judicata, a defendant cannot raise an issue in a [petition] for post conviction relief if he or she could have raised the issue on direct appeal.” State v. Reynolds (1997), 79 Ohio St.3d 158, 161, 679 N.E.2d 1131. Similarly, regarding claims of ineffective assistance of trial counsel in post conviction proceedings, the Ohio Supreme Court has stated that where a defendant, represented by different counsel on direct appeal, “fails to raise [in the direct appeal] the issue of competent trial counsel and said issue could fairly have been determined without resort to evidence dehors the record, res judicata is a proper basis for dismissing defendant‘s petition for post conviction relief.” State v. Cole (1982), 2 Ohio St.3d 112, 443 N.E.2d 169, syllabus; see, also, Lentz, 70 Ohio St.3d at 530, 639 N.E.2d 784.
{¶41} Appellant in this case made a direct appeal of his conviction and sentence. Appellant was represented by different counsel on direct appeal. There
{¶42} Appellant‘s second Assignment of Error is overruled.
{¶43} The judgment of the Muskingum County Court of Common Pleas is affirmed.
By: Delaney, J. Gwin, P.J. and Wise, J. concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. JOHN W. WISE
For the reasons stated in our accompanying Opinion on file, the judgment of the Muskingum County Court of Common Pleas is affirmed. Costs assessed to Appellant.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. JOHN W. WISE