State v. Wiles
| Decision Date | 14 April 1998 |
| Docket Number | No. 97-P-0028,97-P-0028 |
| Citation | 126 Ohio App.3d 71,709 N.E.2d 898 |
| Parties | The STATE of Ohio, Appellee, v. WILES, Appellant. |
| Court | Ohio Court of Appeals |
Victor V. Vigluicci, Portage County Prosecuting Attorney, and Thomas R. Buchanan, Assistant Prosecuting Attorney, Ravenna, for appellee.
David H. Bodiker, Ohio Public Defender, Laurence E. Komp and William S. Lazarow, Assistant Public Defenders, Columbus, for appellant.
This is an appeal from the judgment of the Portage County Court of Common Pleas dismissing a petition for postconviction relief without an evidentiary hearing.
Defendant-appellant, Mark Wayne Wiles, was convicted of felony murder by a three-judge panel of the Portage County Court of Common Pleas and was subsequently sentenced to death. We affirmed the conviction and sentence in State v. Wiles (June 3, 1988), Portage App. No. 1675, unreported, 1988 WL 59838. Upon further review as of right, the Supreme Court of Ohio affirmed our judgment, State v. Wiles (1991), 59 Ohio St.3d 71, 571 N.E.2d 97, and the Supreme Court of the United States denied certiorari, Wiles v. Ohio (1992), 506 U.S. 832, 113 S.Ct. 99, 121 L.Ed.2d 59.
On September 20, 1996, appellant filed a petition for postconviction relief pursuant to R.C. 2953.21, asserting twenty-two claims that his constitutional rights had been violated. The petition was supported by numerous affidavits and exhibits. Appellant argued, inter alia, that his trial counsel were ineffective (fourth, fifth, ninth, tenth, eleventh, and sixteenth claims), that his appellate counsel were ineffective before the Supreme Court (thirteenth claim), that the Portage County Prosecutor's Office interfered with his attempts under R.C. 149.43 to gather information necessary to support this petition (third claim), and that there was a conflict of interest when one of his defense attorneys, James Aylward, went to work for the prosecutor's office in 1989 while his case was on direct review in the Supreme Court, and that said conflict of interest raises an appearance of impropriety in the direct appeal that entitles appellant to a new trial (second claim).
Each claim contained a separate request that the court allow discovery to more fully develop the merits.
On December 10, 1996, eighty-one days later, the state filed a motion for a ruling under R.C. 2953.21(C) and/or, in the alternative, a motion for summary judgment under R.C. 2953.21(D).
On January 13, 1997, appellant filed a motion to strike the state's motion on procedural grounds. He argued that, according to R.C. 2953.21(D), the state had only ten days to respond to his petition by answer or motion and that the state's motion was filed seventy-one days out of rule. Also, appellant alleged that the copy of the December 10 motion he received was incomplete and asked the court to order the state to serve upon him a complete copy of the motion. Further, appellant requested a reasonable amount of time to respond to the December 10 motion if the court overruled his motion to strike.
Also on January 13, 1997, appellant filed a motion to disqualify the Portage County Prosecutor's Office from the present postconviction proceedings and a motion to appoint a special prosecutor to handle the postconviction matter. This motion asserted the same alleged conflict of interest that was raised in the second claim for relief in the petition--the conflict of interest in 1989. In the motion, however, appellant requested a different remedy. He asked the trial court to disqualify the prosecutor's office from the postconviction proceedings in 1997, even though by that time attorney Aylward had left the state's employ and had returned to work for the Portage County Public Defender.
On January 29, 1997, the state filed various motions. First, it filed a motion to supplement its December 10 filing with two pages of briefing allegedly omitted due to a copying error. Second, it moved for leave to file instanter a complete copy of its earlier motion for a ruling or for summary judgment. Third, the state resubmitted its December 10 motion, supposedly with the additional two pages of briefing. This mooted appellant's motion for an order to the state to serve him with a complete copy of its response. The assistant prosecutor wrongly served these motions on the Portage County Public Defender.
The assistant public defender in Columbus received a copy of the January 29 motions on February 3, 1997. On February 6, 1997, appellant filed a memorandum in opposition to the state's motion for leave to plead instanter, arguing that the motions of December 10 and January 29 were both filed late and should be stricken. Alternatively, appellant repeated his request for a reasonable time within which to respond to the motions if the court overruled his motions to strike.
The trial court issued a judgment entry on February 18, 1997, summarily dismissing the petition without an evidentiary hearing. The entry contains findings of fact describing the events leading up to the murder. Its conclusions of law state in full:
The entry does not expressly rule upon the following motions: (1) appellant's motions for discovery contained in the petition 1; (2) the state's December 10, 1996 motion for a ruling and/or for summary judgment; (3) appellant's January 13, 1997 motion to strike the state's response; (4) appellant's December 13, 1997 motion for an extension of time to reply to the state's response; (5) appellant's January 13, 1997 motion to disqualify the entire prosecutor's office and for the appointment of a special prosecutor; (6) the state's January 29, 1997 motion to plead instanter; (7) the state's January 29, 1997 motion to supplement the December 10 filing with the two additional pages of briefing; (8) appellant's memorandum in opposition to the state's motion for leave to plead instanter; (9) appellant's renewed motion to strike the state's untimely filings; or (10) appellant's renewed motion for an extension of time in which to reply. We presume that these were overruled. State v. Sinito (Aug. 29, 1997), Trumbull App. No. 96-T-5532, unreported, at 5, fn. 2.
Appellant timely appealed, asserting the following as error:
The fifth assignment has three parts argued within four subsections. In the first subsection and in most of the second subsection, appellant argues that "[t]he postconviction process in Ohio is a sham procedure." (The "first part" of the fifth assignment.) In the remaining portion of the second subsection, appellant argues that the trial court should have allowed him to conduct post-filing discovery. (The "second part" of the fifth assignment.) In the third and fourth subsections, appellant essentially challenges the court's application of res judicata to his claims. (The "third part" of the fifth assignment.)
The last two assignments of error state:
Several assignments of error deal with the court's treatment of the post-petition motions that were not expressly ruled upon. We will address these assignments first.
In the first assignment of error, appellant argues that the court should have granted his motion to strike the state's December 10 and/or January 29 response to his petition because these were filed beyond the ten-day limit set forth in R.C. 2953.21(D). That part of the argument relating to the January 29 motion is moot because the court impliedly overruled the state's motion to plead instanter. If the court considered any briefing by the state, it would have been the December 10 filing.
R.C. 2953.21(D) states:
"Within ten days after the docketing of the petition, or within any further time that the court may fix for good cause shown, the prosecuting attorney shall respond...
To continue reading
Request your trial
-
State v. Richardson
...that prevented the flow of information from the quarantined attorney to other members of the law firm.” State v. Wiles, 126 Ohio App.3d 71, 82, 709 N.E.2d 898 (11th Dist.1998), citing Kala v. Aluminum Smelting & Refining Co., Inc., 81 Ohio St.3d 1, 8–10, 688 N.E.2d 258 (1998). “In addition,......
-
State v. Mark Wayne Wiles, 01-LW-1652
...a corrective process. Appellant challenged the adequacy of Ohio's post-conviction procedure on appeal to this court in 1998. State v. Wiles, 126 Ohio App.3d 71, 84. This claim is now barred by res Additionally, the Supreme Court has held that arguments challenging the constitutionality of O......
-
State v. Kemp, 2005 Ohio 2115 (OH 4/29/2005)
...after Appellant's pro se brief. {¶20} In support of this argument, Appellant directs this Court's attention to State v. Wiles (1989), 126 Ohio App.3d 71, 77-78, 709 N.E.2d 898. Appellant argues that the state's brief should have been stricken since it was not filed within the ten-day time l......
-
In re Disqualification of Cirigliano
...attorney was neither notified nor given opportunity to be heard, appointment of special prosecutor was void); State v. Wiles (1998), 126 Ohio App.3d 71, 82, 83, 709 N.E.2d 898 (trial court should have held hearing and allowed the state to rebut criminal defendant's claim that entire prosecu......