State v. Byrd
| Decision Date | 21 August 2001 |
| Docket Number | No. C-010379.,C-010379. |
| Citation | 762 NE 2d 1043 |
| Parties | The STATE of Ohio, Appellee, v. BYRD, Appellant. |
| Court | Ohio Court of Appeals |
Michael K. Allen, Hamilton County Prosecuting Attorney, and William E. Breyer, Assistant Prosecuting Attorney; Betty D. Montgomery, Attorney General, David M. Gormley, State Solicitor, and James V. Canepa, Assistant Attorney General, for appellee.
David H. Bodiker, Ohio Public Defender, Jane P. Perry, Randall L. Porter and Kathryn L. Sandford, Assistant Ohio Public Defenders, for appellant.
Petitioner-appellant John Byrd, Jr., who is presently facing execution of the death sentence on September 12, 2001, appeals from the trial court's entry dismissing his successive postconviction petition. Byrd's appeal, filed on June 6, 2001, advances eight assignments of error, none of which we find to be well taken. Therefore, we affirm the judgment of the trial court.
In May 1983, Byrd was charged in an indictment with one count of aggravated murder with death-penalty specifications and three counts of aggravated robbery in connection with the stabbing death of Monte Tewksbury, a convenience store clerk. One count of aggravated robbery was severed prior to trial. The remaining charges were tried to a jury, which found Byrd guilty as charged. Following a mitigation hearing, the jury recommended, and the trial court imposed, the death sentence for aggravated murder. The court imposed consecutive sentences of seven-to-twenty-five years' incarceration for the two counts of aggravated robbery.
Byrd's convictions and sentences were subsequently upheld on direct appeal to this court1 and to the Ohio Supreme Court.2 The United States Supreme Court denied Byrd's petition for a writ of certiorari3 and his petition for rehearing.4
In December 1983, Byrd filed a motion for a new trial, which the trial court denied in September 1989. This court upheld the trial court's judgment,5 and the Ohio Supreme Court subsequently declined jurisdiction.6
In the interim, Byrd had, in October 1988, filed his first petition for post-conviction relief, in which he raised fifteen claims for relief. The trial court, upon the state's motion, entered summary judgment for the state on Byrd's petition. But, in February 1991, this court reversed the trial court's decision and remanded the case for further proceedings.7 In April 1991, the trial court on remand again entered summary judgment in favor of the state on the petition, and Byrd appealed. This court affirmed the trial court's grant of summary judgment,8 and the Ohio Supreme Court declined jurisdiction.9
Shortly thereafter, Byrd filed an App.R. 26(B) application for reconsideration with this court. We denied the application in October 1992,10 and the Ohio Supreme Court affirmed our decision.11 In October 1993, the Ohio Supreme Court denied Byrd's S.Ct.Prac.R. XI (2) motion for delayed reconsideration. In June 1994, the United States Supreme Court denied Byrd's petition for certiorari.12
In March 1994, Byrd filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of Ohio. On December 28, 1995, the district court denied the petition. The United States Court of Appeals for the Sixth Circuit affirmed in April 2000.13 The United States Supreme Court denied certiorari on January 8, 2001,14 and it denied Byrd's subsequent petition for rehearing on February 20, 2001.15
On January 26, 2001, the district court lifted the stay of execution the Sixth Circuit had granted in June 1994, prompting Byrd to file, on that same day, a pleading in the Ohio Supreme Court captioned "Motion for Stay of Execution to Permit John Byrd, Jr. to Litigate the Issue of His Actual Innocence of the Death Penalty." Attached to the pleading was a proposed "Successive Petition to Vacate/Motion for New Trial." Byrd contemporaneously asked the Supreme Court to issue a stay of execution. The Supreme Court on February 9, 2001, denied Byrd's request for a stay on the ground that it was premature.16 On February 20, 2001, the state filed a motion asking the Ohio Supreme Court to set an execution date, and on March 20, 2001, pursuant to the state's request, the Supreme Court set an execution date of September 12, 2001. At the same time, it remanded Byrd's case to the common pleas court for a hearing on Byrd's "actual innocence" claim.17
On April 9, 2001, Byrd filed a successive postconviction petition with the trial court, in which he presented three claims for relief. In his first and second claims for relief, he advanced claims of "actual innocence." His first claim was predicated on the theory that co-defendant John Brewer had actually killed
Tewksbury, and his second claim was based on his assertion that the trial testimony of state's witness Ronald Armstead and the grand-jury testimony of state's witness Virgil Jordan were not credible. In his third claim for relief, Byrd contended that Ohio courts were without jurisdiction to entertain his direct appeals and initial postconviction petition because the judgment of conviction omitted any reference to his pleas to the charges, as required by former Crim.R. 32(B) (now Crim.R. 32C).
Byrd also filed, on April 9, a motion requesting that the trial court hold R.C. 2953.23(A), which governs successive petitions for postconviction relief, "unconstitutional or non-retroactive" to his petition, a motion to set a scheduling order for discovery and an evidentiary hearing, and a motion for funds to employ a medical expert. On April 16, 2001, the court denied his motions for discovery, an evidentiary hearing, and a medical expert and granted the state's motion to quash discovery subpoenas to the records custodians for the state department of corrections, the Ohio State University Hospital, the Ohio Highway Patrol, the Hamilton County Sheriff's Office, the Hamilton County Prosecutor's Office, and Mercy Franciscan Hospital. The court also set a hearing date of May 4, 2001, for the successive postconviction petition and for the motion to hold R.C. 2953.23(A) unconstitutional.
The state moved to dismiss Byrd's successive postconviction petition on April 20, 2001. On May 4, 2001, after oral argument on the petition and the motion to hold R.C. 2953.23(A) unconstitutional, Byrd's attorneys filed a motion to amend the petition to add a fourth claim for relief. By entry dated May 25, 2001, the trial court denied Byrd's motion to amend and dismissed the petition.
From that judgment, Byrd has taken the instant appeal in which he presents eight assignments of error.
We address first Byrd's sixth assignment of error, in which he contends that the trial court erred when it denied his motion to hold R.C. 2953.23(A) "unconstitutional or non-retroactive" to his postconviction petition. He argues that the application of current R.C. 2953.23(A) to his petition violated the due-process provisions of the Fifth and Fourteenth Amendments to the United States Constitution because it effectively precluded him from litigating the merits of his "actual innocence" claim. He asserts that, had the trial court applied to his successive petition the version of R.C. 2953.23(A) that was in effect at the times of his trial, his direct appeal, and his initial postconviction petition, it would have had jurisdiction to entertain his "actual innocence" claim. We disagree.
R.C. 2953.21 through 2953.23 set forth the means by which a convicted defendant may seek to have the trial court's judgment or sentence vacated or set aside. Postconviction relief allows a petitioner to make a collateral civil attack on his criminal conviction by filing a petition to set aside the judgment.18 The relief afforded under the statutes is applicable, however, only where the petitioner's rights in the proceedings that resulted in his conviction were denied to such an extent the conviction is rendered void or voidable under the Ohio or the United States Constitution.19
R.C. 2953.21 was amended by Am.Sub.S.B. No. 4 ("Senate Bill 4") on September 21, 1995. While former R.C. 2953.21 provided that a postconviction petition could be filed "at any time" after the petitioner's conviction, amended R.C. 2953.21(A)(2) provides that the petition must be filed within one hundred eighty days from the filing of the trial transcripts in the petitioner's direct appeal or, if a direct appeal was not pursued, one hundred eighty days after the expiration of the time in which a direct appeal could have been filed. A defendant who had been convicted prior to the amendment of R.C. 2953.21 was given one year from Senate Bill 4's effective date, September 21, 1995, in which to file a post-conviction petition, if that was later than the amended deadline.20
A trial court has jurisdiction to entertain an untimely or successive post-conviction petition under the limited circumstances set forth in R.C. 2953.23. Prior to Senate Bill 4, R.C. 2953.23(A) provided that "the court may, in its discretion and for good cause shown, entertain a second petition or successive petitions for similar relief on behalf of the petitioner based upon the same facts or on newly discovered evidence." Under the current version of the statute, the phrases "in its discretion and for good cause shown" and "upon the same facts" have been replaced by a two-pronged test. R.C. 2953.23(A) now provides as follows:
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