State v. Johnson
| Docket Number | 2022-0488 |
| Decision Date | 18 January 2024 |
| Citation | 2024 Ohio 134 |
| Parties | The State of Ohio, Appellee, v. Johnson, Appellant. |
| Court | Ohio Supreme Court |
1
2024-Ohio-134
The State of Ohio, Appellee,
v.
Johnson, Appellant.
No. 2022-0488
Supreme Court of Ohio
January 18, 2024
Submitted April 18, 2023
Appeal from the Court of Appeals for Cuyahoga County, No. 110347, 2022-Ohio-81.
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Gregory J. Ochocki and Tasha L. Forchione, Assistant Prosecuting Attorneys, for appellee.
Joseph V. Pagano, for appellant.
Dave Yost, Attorney General, Michael J. Hendershot, Chief Deputy Solicitor General, and Samuel C. Peterson and Jana M. Bosch, Deputy Solicitors General, urging affirmance for amicus curiae Ohio Attorney General Dave Yost.
Cullen Sweeney, Cuyahoga County Public Defender, and John T. Martin and Erika B. Cunliffe, Assistant Public Defenders, urging reversal for amicus curiae Cuyahoga County Public Defender.
Deters, J.
{¶ 1} Ohio law permits a person convicted of a criminal offense to petition the trial court to vacate his conviction when he believes "there was such a denial or infringement of [his] rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States." R.C. 2953.21(A)(1)(a)(i). But the statutory scheme governing such postconviction relief limits offenders to one petition and circumscribes the time for filing. R.C. 2953.23 and 2953.21(A)(2). A trial court generally has no jurisdiction to consider an untimely or successive petition. State v. Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, 121 N.E.3d 351, ¶ 35-36, 38. This jurisdictional bar, however, is not insurmountable. A petitioner can overcome the bar if he shows that he was "unavoidably prevented" from discovering the facts on which his claim relies and that but for constitutional error at trial, he would not have been convicted. R.C. 2953.23(A)(1); State v. Bethel, 167 Ohio St.3d 362, 2022-Ohio-783, 192 N.E.3d 470, ¶ 20.
{¶ 2} Years after a jury found appellant, Eric Johnson, guilty of attempted murder and various other offenses, he invoked the postconviction-relief statutes and petitioned the trial court in a bid to have his convictions vacated. His petition was untimely and successive. To satisfy the jurisdictional requirements, Johnson relied on an affidavit of the victim in which the victim called into question his identification of Johnson as the assailant soon after the attack and at trial. Was that evidence sufficient to rebut Ohio's general prohibition on untimely, successive postconviction petitions?
{¶ 3} The trial court and the Eighth District Court of Appeals said no. We agree. Based on the plain language of Ohio's postconviction statutes, Johnson bore the burden of proving not only that he was prevented, but that he was unavoidably
prevented, from timely discovering the victim's recantation. Reference to the date that such an affidavit was executed or provided does not, standing alone, satisfy his burden. Because Johnson provided no additional evidence as to why he could not timely obtain an affidavit from the witness, we affirm the Eighth District's judgment.
I. BACKGROUND
A. Johnson is convicted following a jury trial
{¶ 4} While walking in Cleveland during the early morning of August 26, 2012, James Keith was robbed and shot. As the Eighth District noted below, Keith told police that the shooter was an acquaintance that he knew as "E," though he did not know E's given name. 2022-Ohio-81, ¶ 2. Police obtained a photograph of the person known as "E" and prepared a photo array with him in it. Keith viewed the photo array and identified Johnson as E.
{¶ 5} Johnson was indicted on seven counts relating to the attack on Keith: one count of kidnapping, two counts of aggravated robbery, two counts of felonious assault, one count of attempted murder, and one count of petty theft. Following a jury trial during which Keith again identified Johnson as the assailant, the jury found Johnson guilty on all counts. He was sentenced to an aggregate prison term of 21 years. The Eighth District affirmed Johnson's convictions on direct appeal. State v. Johnson, 8th Dist. Cuyahoga No. 99822, 2014-Ohio-494, ¶ 1-2, 74.
B. Johnson's postconviction proceedings
{¶ 6} Johnson's efforts to obtain postconviction relief began while his direct appeal was pending. The trial court denied Johnson's first petition for postconviction relief, which alleged that he had received ineffective assistance of counsel. State v. Johnson, 8th Dist. Cuyahoga No. 101993, 2015-Ohio 1649, ¶ 5-6. The Eighth District affirmed. Id. at ¶ 25-26. In 2017, Johnson attempted to file a second petition for postconviction relief, alleging that his attempted-felony-murder offense was not a cognizable offense in Ohio. State v. Johnson, 8th Dist. Cuyahoga No. 106670, 2018-Ohio-3799, ¶ 6.
That petition was both untimely and successive, and the trial court denied Johnson's motion for leave to file the petition. Id. at ¶ 7. The Eighth District affirmed that judgment. Id. at ¶ 12-13.
{¶ 7} Johnson's third petition for postconviction relief, filed on November 13, 2020, is the subject of this appeal. This time, Johnson claimed that Keith had recanted his trial testimony identifying Johnson as his attacker. In a handwritten affidavit dated August 26, 2020, Keith distanced himself from his trial testimony. He stated in the affidavit that his "only recollection of [his] assailant [was] that [the assailant] was an African American man with gold teeth" and that he does not "have much of a memory of the night of the incident after being placed in the ambulance." Commenting on his trial testimony, he explained in the affidavit that he had "felt pressured by [a police detective] to * * * testify against Mr. Johnson even though [he] wasn't sure [Johnson] was the person who committed these crimes against [him]." And he revealed that he believes that he "identified the wrong person" as his attacker and that he has had doubts about his trial testimony for "the past seven years."
{¶ 8} The trial court denied Johnson's petition without a hearing, and the court of appeals affirmed that decision. 2022-Ohio-81 at ¶ 22-23. We accepted jurisdiction over Johnson's appeal to address the following proposition of law:
A defendant's rights to due process of law and a fair trial pursuant to the Fifth and Fourteenth Amendments to the United States Constitution and Section 16, Article I of the Ohio Constitution are violated when the trial court denies a defendant's petition for postconviction relief based on newly discovered evidence and is in contravention to the precedent recently established by this Court's recent decision in State v. Bethel, [167 Ohio St.3d 362,] 2022-Ohio-783[, 192 N.E.3d 470]
See 167 Ohio St.3d 1490, 2022-Ohio-2788, 193 N.E.3d 563.
II. ANALYSIS
A. Ohio's postconviction-petition scheme
{¶ 9} In Ohio, "[a]ny person who has been convicted of a criminal offense * * * and who claims that there was such a denial or infringement of the person's rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States" is permitted to "file a petition in the court that imposed [the] sentence, * * * asking the court to vacate or set aside the judgment or sentence." R.C. 2953.21(A)(1)(a). But a person has a limited time within which to do so. "Except as otherwise provided in [R.C. 2953.23], a petition * * * 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 * * *." R.C. 2953.21(A)(2)(a).[1]
{¶ 10} A trial court does not have subject-matter jurisdiction to adjudicate a postconviction petition that is untimely-i.e., filed outside the statutory deadline under R.C. 2953.21(A)(2)-or successive-i.e., a second or subsequent petition. See Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, 121 N.E.3d 351, at ¶ 36, 38. There are two exceptions to this jurisdictional bar. See R.C. 2953.23(A)(1) and (2). One is relevant here. A trial court may entertain an untimely or successive petition if "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 and "[t]he petitioner shows by clear and convincing evidence that, but for
constitutional error at trial, no reasonable factfinder would have found the petitioner guilty."[2] R.C. 2953.23(A)(1)(a) and (b).
{¶ 11} "We review de novo whether the trial court had subject-matter jurisdiction to entertain [a] petition [for postconviction relief]." Bethel, 167 Ohio St.3d 362, 2022-Ohio-783, 192 N.E.3d 470, at ¶ 20, citing Apanovitch at ¶ 24.
B. Johnson's petition did not satisfy R.C. 2953.23(A)(1)
{¶ 12} The petition for postconviction relief at issue was untimely and successive under R.C. 2953.21(A): it was Johnson's third petition for postconviction relief under R.C. 2953.21, and it was filed outside the statutory deadline following the filing of the trial-court transcript in Johnson's direct appeal of his convictions. Accordingly, the trial court had no jurisdiction to consider the petition unless (1) Johnson established that he was unavoidably prevented from discovering Keith's recantation before the statutory deadline and (2) he showed "by clear and convincing evidence that, but for constitutional error at trial," he would not have been convicted, R.C. 2953.23(A)(1). A petitioner like Johnson must satisfy both of those requirements before the trial court may entertain his petition; Johnson satisfied neither.
C. The burden is on Johnson to establish that he was unavoidably prevented from discovering Keith's recantation before the deadline
{¶ 13} R.C. 2953.23 puts the onus on the petitioner to show that he was unavoidably prevented from discovering the facts on which his petition relies. R.C. 2953.23(A)(1)(a). But...
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