State v. Vinson

[Cite as State v. Vinson, 2021-Ohio-836.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, :
No. 20AP-356
v. : (C.P.C. No. 07CR-6859)

Ella B. Vinson, : (ACCELERATED CALENDAR)

Defendant-Appellant. :

D E C I S I O N

Rendered on March 18, 2021

On brief: Gary Tyack, Prosecuting Attorney, and
Kimberly M. Bond, for appellee.

On brief: Ella B. Vinson, pro se. Argued: Ella B. Vinson.

APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Defendant-appellant, Ella B. Vinson, appeals from a judgment of the
Franklin County Court of Common Pleas, denying her petition for postconviction relief.
For the reasons that follow we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On September 11, 2007, appellant was involved in an altercation with the
victim in front of appellant's residence. In the course of the altercation, appellant stabbed
and/or slashed the victim's arm with a paring knife. State v. Vinson, 10th Dist. No. 08AP-
381, 2008-Ohio-6430. Appellant was taken into custody and the apartment secured until
police could obtain a search warrant. Appellant was arrested on September 11, 2007 and
No. 20AP-356 2

her residence was searched. As a result of the search, police recovered the paring knife
appellant used to injure the victim.
{¶ 3} The subsequent procedural history of the case is set forth in State v. Vinson,
10th Dist. No. 09AP-163, 2009-Ohio-3751:
On September 20, 2007, appellant was indicted on one count
of felonious assault, in violation of R.C. 2903.11. Appellant
waived her right to a jury trial, and the case was tried to the
bench. On February 29, 2008, the trial court found appellant
guilty of the charge of felonious assault.
Represented by new counsel, appellant appealed the
judgment, arguing that her conviction was against the
manifest weight of the evidence, and that she received
ineffective assistance of counsel. In State v. Vinson, 10th Dist.
No. 08AP-381, 2008-Ohio-6430, this court overruled
appellant's assignments of error and affirmed the judgment of
the trial court.
On December 15, 2008, appellant filed a petition, pursuant to
R.C. 2953.21, to vacate or set aside her judgment of conviction
or sentence. The trial court denied appellant's petition by
entry filed January 16, 2009.
Id. at ¶ 2-4.1
{¶ 4} Appellant appealed to this court from the December 15, 2008 judgment
denying her petition for postconviction relief. Id. at ¶ 5. On July 30, 2009, this court
affirmed the trial court. Id. at ¶ 15, discretionary appeal not allowed, State v. Vinson,
123 Ohio St.3d 1497, 2009-Ohio-6015.
{¶ 5} On June 12, 2020, appellant filed her second petition for postconviction relief
and on June 15, 2020, appellant filed a substantially similar petition with additional
exhibits. Appellant's primary claim for postconviction relief is an alleged error by her trial
counsel in failing to file a motion to suppress evidence recovered by police in the search
of her residence.
{¶ 6} Appellee filed a combined memorandum in opposition to the petition and a
motion to dismiss the petition on June 17, 2020. On June 22, 2020, the trial court issued

1 On May 7, 2009, this court issued a memorandum decision denying appellant's motion to reopen her

original appeal in State v. Vinson, 10th No. 08AP-381 (May 7, 2009) (memorandum decision),
discretionary appeal not allowed, State v. Vinson, 121 Ohio St.3d 1453, 2009-Ohio-1820.
No. 20AP-356 3

an entry denying appellant's motions for postconviction relief. The trial court made the
following ruling:
All of Ms. Vinson's claims have been considered and rejected
on direct appeal, or under her first Petition for Post-
Conviction relief (which received full appellate review.) By
submitting repetitive papers and re-packaging arguments
already made, or that could have been made, Ms. Vinson gains
no additional rights. Indeed, her repetitive filings are now
simply frivolous.
(June 22, 2020 Journal Entry at 2.)
{¶ 7} Appellant timely appealed to this court from the June 22, 2020 judgment.
II. ASSIGNMENT OF ERROR
{¶ 8} Appellant assigns the following as trial court error:
DID THE TRIER OF FACT ERR WHEN HE ALLOWED THE
PROSECUTION TO SUBMIT APPELLANTS' [sic] SEIZED
PROPERTY AS EVIDENCE IN THE STATES [sic] CASE
WITHOUT A SEARCH WARRANT AND AFFIDAVIT OF
RECORD?
III. STANDARD OF REVIEW
{¶ 9} Ordinarily, the " 'standard for reviewing a trial court's decision to dismiss a
petition for postconviction relief, without an evidentiary hearing, involves a mixed
question of law and fact.' " State v. Kane, 10th Dist. No. 16AP-781, 2017-Ohio-7838, ¶ 9,
quoting State v. Lacking, 10th Dist. No. 14AP-691, 2015-Ohio-1715, ¶ 8, citing State v.
Tucker, 10th Dist. No. 12AP-158, 2012-Ohio-3477, ¶ 9. "This court must apply a manifest
weight standard in reviewing a trial court's findings on factual issues underlying the
substantive grounds for relief, but we must review the trial court's legal conclusions de
novo." Kane at ¶ 9, citing Lacking at ¶ 9. However, R.C. 2953.23 provides a court "may
not entertain" an untimely or successive postconviction relief petition unless the
requirements of R.C. 2953.23(A)(1) or (2) are met. "The Supreme Court of Ohio has held
that unless the requirements of R.C. 2953.23(A)(1) or (2) are satisfied, a court lacks
jurisdiction over a successive postconviction relief petition." State v. Stewart, 10th Dist.
No. 19AP-458, 2020-Ohio-4709, ¶ 12, citing State v. Apanovitch, 155 Ohio St.3d 358,
2018-Ohio-4744, ¶ 38. " '[T]he question whether a court of common pleas possesses
subject-matter jurisdiction to entertain an untimely petition for postconviction relief is a
No. 20AP-356 4

question of law, which appellate courts review de novo.' " Apanovitch at ¶ 24, quoting
Kane at ¶ 9.
IV. LEGAL ANALYSIS
{¶ 10} In her sole assignment of error, appellant contends that the trial court
erred in denying her petition for postconviction relief because, during appellant's
prosecution, the trial court erroneously permitted the prosecution to admit evidence
obtained as a result of search of her residence pursuant to a defective search warrant.
Appellant summarized her claim as follows:
The record shows I was deprived of counsel (enclosed) at the
onset of this case lacking in probable cause. Evidence seized in
this illegal search was used in the State's case at trial without a
valid search warrant and affidavit of record - because a valid
search warrant and affidavit does not exist for this case. Hence
till this day, this Error of Law/or use of appellant's ill seized
property without a valid search warrant and affidavit of record
still exists - because probable cause never existed in this case.

(Emphasis sic.) (June 25, 2020 Memo. in Opp. at 2.) 2
{¶ 11} Appellant claims that the search warrant issued by a municipal court judge
authorizing the search of her residence was constitutionally infirm because the search
warrant was signed and issued by the judge on September 11, 2007, but the search warrant
and the search warrant affidavit, evidencing probable cause, were not filed in the municipal
court until September 17, 2007. According to appellant, this means that the warrant was
issued without probable cause and that the evidence obtained in the search should have
been excluded had counsel filed a motion to suppress.
{¶ 12} Appellant has attached copies of the search warrant and search warrant
affidavit to her motion for postconviction relief. The search warrant affidavit is signed by a
police officer and dated September 11, 2007; the search warrant is signed by a municipal
court judge and dated September 11, 2007. The search warrant and search warrant affidavit
bear a date stamp indicating that the documents were filed with the municipal court clerk
on September 17, 2007.

2 Because the trial court ruled
on appellee's combined memorandum in opposition and motion to dismiss only
five days after the motion was filed, and because our standard of review on appeal is de novo, we will consider
appellant's June 25, 2020 memorandum in this appeal even though it was filed after the trial court judgment.
No. 20AP-356 5

{¶ 13} Appellee argues that the trial court did not have jurisdiction of appellant's
petition because it was a successive petition for postconviction relief and appellant failed to
satisfy either of the exceptions in R.C. 2953.23(A)(1) or (2). We agree with appellee.
{¶ 14} R.C. 2953.23(A) provides in relevant part as follows:
(A) Whether a hearing is or is not held on a petition filed
pursuant to section 2953.21 of the Revised Code, a court may
not entertain a * * * second petition or successive petitions for
similar relief on behalf of a petitioner unless division (A)(1) or
(2) of this section applies:
(1) Both of the following apply:
(a) Either the petitioner shows that the petitioner was
unavoidably prevented from discovery of the facts upon which
the petitioner must rely to present the claim for relief * * *.
(b) The petitioner shows by clear and convincing evidence
that, but for constitutional error at trial, no reasonable
factfinder would have found the petitioner guilty of the
offense of which the petitioner was convicted * * *.
(Emphasis added.)3
{¶ 15} Appellant's postconviction petition in this case is subject to the requirements
of R.C. 2953.23 because it was appellant's second petition for postconviction relief.
{¶ 16} "Th[e] exception in R.C. 2953.23(A)(1)(a) involves newly discovered
evidence." State v. Turner, 10th Dist. No. 06AP-876, 2007-Ohio-1468, ¶ 11, citing State v.
Taylor, 4th Dist. No. 06CA20, 2007-Ohio-1185, ¶ 8. "The phrase 'unavoidably prevented'
in R.C. 2953.23(A)(1)(a) means that a defendant was unaware of those facts and was unable
to learn of them through reasonable diligence." Turner at ¶ 11, citing State v. McDonald,
6th Dist. No. E-04-009, 2005-Ohio-798, ¶ 19. "The 'facts' contemplated by R.C.
2953.23(A)(1)(a) are the historical facts of the case, which occurred up to and including the
time of conviction." Turner at ¶ 11, citing State v. Czaplicki, 2nd Dist. No. 16589 (May 29,
1998).
{¶ 17} Appellant acknowledges that she was arrested at her residence and that her
residence was subsequently searched pursuant to the search warrant. Appellant admits
that the search warrant and affidavit were both filed in the Franklin County Municipal
Court on September 17, 2007. The facts supporting appellant's claim that the search

3 Appellant does not allege actual innocence under R.C. 2953.23(A)(2).
No. 20AP-356 6

warrant was defective were, therefore, readily available to appellant prior to her
prosecution and throughout the criminal proceedings. Nevertheless, in appellant's June 5,
2020 memorandum in opposition to appellee's motion to dismiss her petition, appellant
alleges the following:
Petitioner asserts that per Statute she was unavoidably
prevented from the discovery of facts; denial of all my counsel
(3)- the one that "withdrew", trial and appellate counsel due
to collusion in my prosecution without probable cause.
(June 25, 2020 Memo. in Opp. at 1.)
{¶ 18} Appellant claims that she was unavoidably prevented from discovering the
alleged defect in the search warrant because of errors by her trial and appellate counsel.
There is no merit to appellant's claim.
{¶ 19} This court has consistently rejected the contention that a postconviction
petitioner is unavoidably prevented from discovery of the facts upon which the petition
relies when petitioner cannot not explain why neither they nor their trial counsel could not
have discovered those facts in the exercise of reasonable diligence. State v. Howard, 10th
Dist. No. 15AP-161, 2016-Ohio-504, ¶ 34, discretionary appeal not allowed, 147 Ohio St.3d
1413, 2016-Ohio-7455, citing State v. Anderson, 10th Dist. No. 12AP-133, 2012-Ohio-4733,
¶ 14; State v. Golden, 10th Dist. No. 09AP-1004, 2010-Ohio-4438, ¶ 13. When a petitioner
blames the failure to discover the necessary facts on his trial counsel's ineffectiveness, the
petitioner essentially concedes that such evidence could have been obtained either by the
petitioner or counsel in the exercise of reasonable diligence. Id. at ¶ 33. When a trial court
is faced with such a claim, "it [is] impossible for the trial court to consider appellant's claim
of being 'unavoidably prevented' without concurrently considering whether counsel was
ineffective." State v. Waddy, 10th Dist. No. 15AP-397, 2016-Ohio-4911, ¶ 31.
{¶ 20} In Howard, the petitioner claimed that the victim's medical records would
have bolstered his claim that the victim died by suicide, and not at his hands. In petitioner's
untimely petition for postconviction relief, petitioner blamed his trial counsel for the failure
to obtain the medical records within the time required to file a timely petition for
postconviction relief. In support of petitioner's claim that he was unavoidably prevented
from discovering the medical record, petitioner produced medical records documenting the
victim's serious mental health condition and her two prior suicide attempts; the affidavits
No. 20AP-356 7

of his trial counsel who admitted that they never sought the records; the affidavit of the
criminal investigator for the public defender's office assigned to his case who admitted that
he never visited the medical provider seeking the victim's records; and the affidavit of a
social worker at the public defender's office who admitted petitioner encouraged her to
obtain the medical records, it was her normal practice to make recommendations to
attorneys on evidence they should obtain, and the decision whether or not to pursue certain
evidence was left to counsel.
{¶ 21} In light of the evidence presented by petitioner, the Howard court held that
petitioner had established that he was unavoidably prevented, due to counsel's
ineffectiveness, from discovering the medical records upon which his petition relied. Id. at
¶ 23.4
{¶ 22} Here, appellant did not allege any facts or produce any evidence in the trial
court to support her unsworn assertion that errors by her trial and appellate counsel
prevented her from discovering the facts upon which a potentially meritorious motion to
suppress could have been filed. Appellant knew at the time of her arrest that a search
warrant had issued for her premises. Appellant admits that the facts upon which she now
relies in support of her petition were available in the public record of the Franklin County
Municipal Court on September 17, 2007. Appellant failed to provide the trial court with an
affidavit from any of her former counsel or any other affiant evidencing the fact that a
motion to suppress was discussed or considered. Appellant did not even provide her own
affidavit in support of the petition.
{¶ 23} Based on the foregoing, we find that appellant has not demonstrated she met
the requirements of R.C. 2953.23(A)(1).
{¶ 24} Moreover, even if we were to accept appellant's vague and unsworn allegation
that she was unavoidably prevented from discovering the alleged defects in the search
warrant because of her counsel's errors, appellant has failed to produce clear and
convincing evidence that, but for constitutional error at trial, no reasonable factfinder
would have found the petitioner guilty of the offense of which the petitioner was convicted.

4 Petitioner in Howard also presented affidavits supporting a finding that counsel either did not inquire as to
the whereabouts of the detective who initially interviewed petitioner or the prosecutor withheld the
information. Id. at ¶ 31.
No. 20AP-356 8

{¶ 25} "The Fourth Amendment to the United States Constitution, applied to the
states through the Fourteenth Amendment, provides that 'no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.' The Ohio Constitution contains
a nearly identical provision. Ohio Constitution, Article I, Section 14." State v. Harrington,
10th Dist. No. 14AP-571, 2015-Ohio-2492, ¶ 7; State v. Williams, 57 Ohio St.3d 24 (1991).
{¶ 26} There is no question that evidence seized pursuant to a search warrant that
is not signed by a judge prior to the search is subject to suppression. Harrington at ¶ 7,
citing Williams at paragraph one of the syllabus. See also State v. Carpenter, 12th Dist. No.
CA2005-11-494, 2007-Ohio-5790. Here, however, appellant's argument is not that the
warrant was unsigned but that the search warrant documents were not filed with the clerk
until days after the warrant was issued.
{¶ 27} Search warrants are issued pursuant to the authority found in R.C. 2933.21
through 2933.25 and former Crim.R. 41. Harrington at ¶ 7. The only filing requirement in
Crim.R. 41 is contained in Crim.R. 41(E) which provides:
(E)Return of papers to clerk.
The law enforcement officer shall attach to the warrant a copy
of the return, inventory, and all other papers in connection
therewith and shall file them with the clerk or the judge, if the
warrant so requires.5
{¶ 28} The filing requirement in Crim.R. 41(E) clearly contemplates issuance,
service and execution of a search warrant prior to the filing of the return, inventory, and all
other papers in connection with the search. Crim.R. 41(D) merely requires the return of
papers to the clerk be made "promptly" following execution. Appellant's evidence
demonstrates that the search warrant affidavit was signed by affiant on September 11, 2007
and that the warrant was signed and issued by the judge of the same date. The fact that the
return and the accompanying search warrant documents were not filed until September 17,
2007 had no impact on the validity of the warrant. Moreover, any error with regard to the
return would have been non-constitutional in nature. See State v. Downs, 51 Ohio St.2d
47, 64-65 (1977), vacated on other grounds, Downs v. Ohio, 438 U.S. 909 (1978)

5 In 2007, Crim.R. 41(E) provided: "The judge before whom the warrant is returned shall attach to the

warrant a copy of the return, inventory, and all other papers in connection therewith and shall file them with
the clerk." (Emphasis added.)
No. 20AP-356 9

(noncompliance with Crim.R. 41 with respect to the return of a search warrant is merely an
administrative error, and is not an error of constitutional magnitude); Columbus v. Wright,
48 Ohio App.3d 107 (10th Dist.1988) (Failure to comply with the requirements of Crim.R.
41 with respect to filings connected with the execution of a search warrant does not make
the search warrant invalid in the absence of evidence that the papers did not exist or that
sufficient cause was not demonstrated by affidavit or oral testimony to justify the issuance
of the search warrant.). Id. at 113.
{¶ 29} Finally, though appellant does not identify the evidence she would have
sought to exclude from the bench trial, the record and the search warrant documents filed
in the municipal court identify the knife appellant used to stab the victim as the primary
piece of physical evidence found in the residence and admitted into evidence. Given
appellant's defense at trial that she stabbed the victim in self-defense, the exclusion of the
knife as evidence in her criminal trial would not have benefitted appellant's defense in any
meaningful way. State v. Poole, 33 Ohio St.2d 18, 19 (1973) (A claim of self-defense admits
the facts claimed by the prosecution and then relies on independent facts or circumstances
which the defendant claims exempt him from liability.).
{¶ 30} For the foregoing reasons, we find that appellant has not demonstrated that
she met the requirements of R.C. 2953.23(A)(1)(b).
{¶ 31} Because appellant's petition is a successive petition for postconviction relief,
and because appellant failed to produce evidence to support a finding that any of the R.C.
2953.23(A)(1) exceptions applied, the trial court lacked jurisdiction to entertain appellant's
petition. Apanovitch at ¶ 24; Kane at ¶ 9. Furthermore, "[b]ecause the trial court lacked
jurisdiction to consider appellant's petition, the trial court was not required to hold an
evidentiary hearing." Kane at ¶ 20, citing State v. Melhado, 10th Dist. No. 05AP-272,
2006-Ohio-641, ¶ 24, citing State v. Russell, 10th Dist. No. 05AP-391, 2006-Ohio-383, ¶ 10,
citing State v. Burke, 10th Dist. No. 02AP-677, 2002-Ohio-6840, ¶ 19. Accordingly, we
overrule appellant's sole assignment of error. 6
{¶ 32} "This court has previously advised that trial courts should dismiss a petition
for postconviction relief when jurisdiction is lacking rather than denying the petition on

6 To the extent that appellant's petition for postconviction relief rehashes arguments that were considered and

rejected by this court in connection with her previously filed petition for postconviction relief, appellant
cannot possibly meet the jurisdictional requirements of R.C. 2953.23(A)(1).
No. 20AP-356 10

some other grounds." State v. Jones, 10th Dist. No. 18AP-578, 2019-Ohio-1014, ¶ 17,
quoting State v. Banks, 10th Dist. No. 12AP-96, 2012-Ohio-3770, ¶ 11 (" 'the trial court did
not err in denying appellant's petition, though technically the petition should have been
dismissed for lack of jurisdiction' "); State v. Mangus, 10th Dist. No. 06AP-1105, 2009-
Ohio-6563, ¶ 13 (affirming denial of postconviction petition as untimely filed even though
trial court should have dismissed the petition for lack of jurisdiction); State v. Russell, 10th
Dist. No. 05AP-391, 2006-Ohio-383, ¶ 10 (the trial court did not err in denying appellant's
petition on the merits, though technically the petition should have been dismissed for lack
of jurisdiction); State v. Elkins, 10th Dist. No. 10AP-6, 2010-Ohio-4605, ¶ 17 (though the
untimely postconviction petition should have been dismissed for lack of jurisdiction, the
trial court did not err by denying the petition on the merits). We nevertheless conclude that
the trial court did not err in its disposition of appellant's petition, and we affirm the trial
court's judgment, albeit for different reasons than the trial court. Banks at ¶ 11; Mangus at
¶ 13; Russell at ¶ 10; Elkins at ¶ 17.
V. CONCLUSION
{¶ 33} Having overruled appellant's sole assignment of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.

DORRIAN, P.J., and LUPER SCHUSTER, J., concur.
_____________