[Cite as State v. Johnson, 2019-Ohio-2409.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
v. : No. 18AP-821
(C.P.C. No. 96CR-3758)
Jose Johnson, :
(REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on June 18, 2019
On brief: Ron O'Brien, Prosecuting Attorney, and
Kimberly M. Bond, for appellee.
On brief: Jose Johnson, pro se.
APPEAL from the Franklin County Court of Common Pleas
BEATTY BLUNT, J.
{¶ 1} Defendant-appellant, Jose Johnson, appeals a decision and entry of the
Franklin County Court of Common Pleas entered on June 7, 2018 denying his motion to
vacate judgment of conviction, for appointment of counsel, and for expert assistance. We
affirm for the reason that follows.
{¶ 2} For ease of analysis, we incorporate our two previous decisions on this case
in their entirety herein. See State v. Johnson, 10th Dist. Franklin No. 97APA03-315, 1998
Ohio App. LEXIS 2069; see also State v. Johnson, 10th Dist. Franklin No. 16AP-843
(July 17, 2017).
No. 18AP-821 2
{¶ 3} Relevantly, after the later decision issued, Johnson filed a motion to vacate
his convictions. The trial court promptly denied that motion. Thereafter, on May 22, 2018,
Johnson lodged another motion to vacate his convictions. The trial court denied that
motion on June 7, 2018 based upon timeliness and res judiciata considerations. It is from
that decision that Johnson now appeals.
I. ASSIGNMENTS OF ERROR
{¶ 4} We provide verbatim Johnson's four assignments of error:
[A.] Abuse of Discretion by the Trial Court. The Trial Court did
abuse it's discretion in its denial of the Appellant's May 22nd,
2018 postconviction petition. Filed under The O.R.C.
2953.23(A)(!1 (a) & (b), & (A)(2). In which the Petitioner's
request for an evidentiary hearing, appointment of counsel,
expert witness, and the vacation of the Appellant's
conviction(s). Were denied as un-timely and barred by "Res
judicata." In violation of The Constitution of the United States
of America, Amendment(s) 6, & 14; and The Constitution of
The State of Ohio, Article I, sections 1, 10, & 16.
[B.] Prosecutorial Misconduct. The State, represented by The
Franklin County prosecutor's. Did knowingly withhold
exculpatory evidence from the Defendant-Appellant and the
Trial Court, in violation of the O.R.C. Crim. P. Rule 16. The
State also knowingly submitted falsified reports, to the Trial
Court. In which the State relied upon said report, as competent
and reliable confirmatory evidence. This evidence was used to
influence the Courts decision to deny the Appellant –
Defendant's postconviction petition. In doing so, the State did
knowingly violate scientific and Federal rules and guidelines.
As they relate to acceptable forensic DNA testing methods,
procedures, and specific outcome analysis results. In violation
of The Constitution of the United States of America,
Amendment(s) 6, & 14; and The Constitution of The State of
Ohio, Article I, sections 1, 10, & 16.
[C.] Insufficient Evidence. The State's misrepresented,
incomplete, and false report. Submitted to the Court(s), as
probative, competent, and reliable evidence. In confirmation of
the State's previous inconclusive forensic's DNA testing and
analysis results; of June 21st, 1996. Are in violation of
acceptable scientific and Federal standards of the SWGDAM
No. 18AP-821 3
guidelines 1, 2, 3, & 4; and the Q.A.S. guidelines 1, 2, 3, 5, 7, 78,
9 & 11, . Mandated by the forensic's community and, Federal
Rules and Statutes. In so doing, they also violate The O.R.C.
Rules of Evidence 101, 104(B), 702(B), 901(A) & (B)(3)(4)(9) &
(10). In violation of The Constitution of the United States of
America, Amendment(s) 6, & 14; and The Constitution of The
State of Ohio, Article I, sections 1, 10, & 16.
[D.] Ineffective Assistance of Counsel, and Appellate Counsel.
Appointed Defense Counsel, was ineffective in the defense of
the Appellant – Defendant, at the time of the Defendant(s) trial
proceedings. As appointed defense counsel, did receive funding
from the Court, and a continuance. To provide for forensic's
DNA testing and/or an expert witness, on the behalf of the
Defendant. Which the appointed Defense Counsel failed to do,
in both regards. Appellant's, appointed Appellate – Defense
Counsel, was also ineffective. As Appellate – Defense Counsel
failed to raise these issue's as assignment(s) of error, in the
Appellant's direct appeal. These violations by the Defense and
Appellate – Defense Counsel. Did cause prejudice, and did
deprive the Appellant of this constitutional right to a Fair Trial,
and the right to Redress from the Court, in violation of his
Constitutional right's of Due Process. In violation of The
Constitution of the United States of America, Amendment(s) 6,
& 14; and The Constitution of The State of Ohio, Article I,
sections 1, 10, & 16.
II. ANALYSIS
{¶ 5} Initially, Plaintiff-appellee, State of Ohio, argues the trial court correctly
concluded it lacked jurisdiction to entertain Johnson's motions to vacate. As grounds, the
State asserts Johnson's noted filings had to be dated on or before August 27, 1998 under
R.C. 2953.21(A)(1) and (2). Because Johnson's motions are time-stamped in January and
May 2018, the State urges us to affirm the trial court's denial of Johnson's post-petition
motions. Johnson bypasses replying to this contention.
{¶ 6} " 'We review a trial court's decision to deny a postconviction petition without
a hearing under an abuse of discretion standard.' " State v. Battin, 10th Dist. Franklin No.
17AP-911, 2018-Ohio-2533, ¶ 9, quoting State v. Boddie, 10th Dist. No. 12AP-811, 2013-
No. 18AP-821 4
Ohio-3925, ¶ 11, citing State v. Campbell, 10th Dist. No. 03AP-147, 2003-Ohio-6305, ¶ 14.
" 'An abuse of discretion connotes a decision that is unreasonable, arbitrary, or
unconscionable.' " Battin, 2018-Ohio-2533, ¶ 9, quoting Boddie at ¶ 11, citing Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 5 Ohio B. 481, 450 N.E.2d 1140 (1983).
{¶ 7} Pursuant to R.C. 2953.21(A)(2), a postconviction petition for relief "shall be
filed no later than three hundred sixty-five days after the date on which the trial transcript
is filed in the court of appeals in the direct appeal of the judgment of conviction or
adjudication * * *." Here, the trial transcript for Johnson's direct appeal was filed on
August 27, 1997, but he did not lodge his postconviction petitions until January and May
2018, well past the noted deadline.
"In general, a court lacks jurisdiction to entertain a petition filed after the time limits
of R.C. 2953.21(A)(2)." State v. Myers, 10th Dist. Franklin No. 05AP-228, 2005-Ohio-
5998, ¶ 28, 29, 34. Limited exceptions to this rule exist. Relevantly, the trial court in this
case could only entertain Johnson's untimely postconviction petition if he had established
both that (1) "[he] was unavoidably prevented from discovery of the facts upon which [he]
must rely to present the claim for relief * * *" and (2) "but for constitutional error at trial,
no reasonable factfinder would have found [him] guilty of the offense of which [he] was
convicted * * *" R.C. 2953.23(A)(1). He must prove the later determination by clear and
convincing evidence. Id.
{¶ 8} The record before us illustrates Johnson's failure to sustain his burden.
Specifically, he does not offer any excuse for his delay in filing his postconviction petitions,
and the record is devoid of any basis which prohibited him from filing his petition within
the deadline set forth in R.C. 2953.21(A)(2). Due to his failure to establish the first part of
his burden under R.C. 2953.23, we hold that the illuminated exception does not apply and
No. 18AP-821 5
that the trial court lacked jurisdiction to entertain Johnson's untimely January and May
2018 postconviction petitions. As our jurisdictional determination proves dispositive, we
refrain from addressing the parties' remaining contentions. Johnson's four assignments of
error are thus overruled, and the judgment of the Franklin County Court of Common Pleas
is affirmed.
Judgment affirmed.
BRUNNER and NELSON, JJ., concur.