State v. William H. Ashley
| Decision Date | 14 June 2000 |
| Docket Number | 00-LW-2908,99 CA 2514 |
| Parties | STATE OF OHIO, Plaintiff-Appellee v. WILLIAM H. ASHLEY, Defendant-Appellant Case |
| Court | Ohio Court of Appeals |
COUNSEL FOR APPELLANT: William H. Ashley, Reg. No. 62379-061, P.O Box 33, Terre Haute, Indiana 47808, Pro Se.
COUNSEL FOR APPELLEE: Larry E. Beal, Hocking County Prosecuting Attorney, 88 South Market, Street, Logan, Ohio 43138.
DECISION
This is an appeal from a judgment entered by the Ross County Common Pleas Court dismissing a postconviction relief petition filed by William H. Ashley, defendant below and appellant herein. The following errors are assigned for our review:
A brief summary of the facts pertinent to this appeal is as follows. On September 10, 1990, the Hocking County Grand Jury returned an indictment charging appellant with aggravated murder, in violation of R.C. 2903.01(A), with a firearm specification, in the death of Richard Timmons. Appellant pled "not guilty" and, after a change of venue, was brought to trial in August of 1991. The State's principal witness was Donald Stivison who testified that on March 21 1990, he and appellant were at Stivison's house trailer in Logan, Ohio, when Timmons drove up outside. Appellant had recently purchased marijuana from Timmons and appellant was dissatisfied with the transaction.[1] Appellant announced his intention to "plug" Timmons in retaliation, but Stivison did not believe appellant was serious.
Timmons entered the house trailer and began talking with Stivison. Appellant interrupted at one point and accused Timmons of "ripp[ing] [him] off on that pot." Appellant demanded that Timmons "make it right[,] right now." When Timmons explained that he was without any inventory, and did not "have nothing on [him] to make it right[J right now," appellant shot him three (3) times. He and Stivison then disposed of the body pursuant to instructions set out in a book entitled "The Hit Man." Appellant pierced the victim's lungs to prevent his body from rising to the surface and then buried him with lye to speed decomposition and lime to reduce the smell.
Subsequently, Stivison was arrested on other charges and he agreed to cooperate in this case in exchange for prosecutorial immunity. Stivison ultimately led authorities to the buried body.
Appellant presented no evidence in his own defense and the
jury returned a verdict finding him guilty. Judgment was entered
on August 23, 1991, sentencing him to an indeterminate life term
on the murder charge and an additional three (3) years actual
incarceration on the firearm specification. This Court affirmed
that judgment the following year. See State v. Ashley (Jun. 10, 1992), Ross App. No. 1810, unreported (hereinafter referred to as "Ashley I.").
Appellant commenced the action below on June 29, 1999, by filing his "motion to vacate conviction and sentence under O.R.C. Sec. 2953.21.11 Though lengthy, and written in a rambling and disjointed manner, the gist of his motion was that the prosecution had committed misconduct at the trial, that the prosecution failed to prove "an essential element" of the aggravated murder charge and that, (for various reasons), appellant was deprived of the effective assistance of counsel.
The prosecution filed nothing in response to appellant's petition but, on August 26, 1999, the trial court dismissed the motion and denied appellant postconviction relief. The court reasoned that the first two (2) prongs of appellant's motion (i.e. prosecutorial misconduct and failure to prove an essential element of the offense) had either been raised, or could have been raised, in Ashley I and, thus, were barred from further consideration by the doctrine of res judicata. With respect to the final prong of his motion, that appellant had been denied effective assistance of counsel, the court concluded that no evidence had been submitted in support of that claim except for appellant's own "self-serving" and "conclusory" affidavit. The trial court found that this evidence was insufficient to satisfy the initial evidentiary burden of R.C. 2953.21(C) and that no hearing need be granted. The trial court filed a nunc pro tunc entry less than a week later confirming the dismissal. Appellant then filed a "request for reconsideration" which the court overruled on September 14, 1999. This appeal followed.
thus, we have no basis for reversing the judgment below.
effective September 21, 1995, to require that requests for such
relief be filed no later than one hundred eighty (180) days after
the trial transcript is filed in the court of appeals on direct
appeal of the judgment or, if no appeal is taken, then no later
than one hundred eighty (180) days after expiration of the time
period for filing an appeal. See R.C. 2953.21(A)(2); also see
Am.Sub.S.B. No. 4, 146 Ohio Laws, Part IV, 7815, 7823-7824.
Obviously, appellant's motion below was well outside that time
limit. The Ohio General Assembly nevertheless provided for those
individuals sentenced before the amendment by stipulating that
they could file their requests either within the R.C.
2953.21(A)(2) time frame or within one (1), year from the
effective date of the new legislation. Am.Sub.S.B. No. 4, supra
at §3, 146 Ohio Laws, Part IV, at 7826. This gave appellant until September 20, 1996, to file his petition. See State v. Rogers (Feb. 17, 2000), Cuyahoga App. Nos. 76627 & 76628, unreported; State v. Brewer (Sep. 18, 1998), Highland App. No. 98CA5, unreported; also see State v. Pierce (1998), 127 Ohio App.3d 578, 584, 713 N.E.2d 498, 502; State v. Schulte (1997), 118 Ohio App.3d 184, 186, 692 N.E.2d 237, 238. Appellant missed that deadline as well. Thus, the lower court was prohibited by R.C. 2953.23(A) from considering appellant's request unless he made a showing of those circumstances enumerated in subsections (A)(1)-(2) of that provision. He did not and, thus, the trial court properly dismissed his motion.
Finally, even if the petition had been timely filed and properly before the court on its merits, we would still come to the same conclusion as the trial court and find that no substantive basis for relief exists. The Ohio Supreme Court has long held that the doctrine of res judicata will apply in determining whether postconviction relief should be afforded under R.C. 2953.21. See e.g. State v. Nichols (1984), 11 Ohio St.3d 40, 42, 463 N.E.2d 375, 377; State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104, at paragraph eight of the syllabus. This means that a movant cannot raise, for purposes of postconviction relief, any error which was raised or could have been raised on direct appeal. See Perry, supra at paragraph nine of the syllabus; also see State v. Lentz (1990), 70 Ohio St.3d 527, 529, 639 N.E.2d 784, 785; State v. Juliano (1970), 24 Ohio St.2d 117, 119, 265 N.E.2d 290, 292. Appellant raised the issue of prosecutorial misconduct in Ashley I. He did not raise the issue that the prosecution failed to prove an element of aggravated murder, but that issue could have been, and should have been, raised in the initial appeal as well. The trial court correctly determined that these points are now res judicata and are barred from further consideration.
That brings us to appellant's various claims of ineffective assistance of counsel.[2] In Ohio, a properly licensed attorney is presumed competent and the appellant bears the burden to establish counsel's ineffectiveness. State v Hamblin (1988), 37 Ohio St.3d 153, 524 N.E.2d 476, certiorari denied (1988), 488 U.S. 975, 109 S.Ct. 515, 102 L.Ed.2d 550; Vaughn v. Maxwell (1965), 2 Ohio St.2d 299, 209 N.E.2d 164. Appellant must show that counsel failed to function as the "counsel" contemplated by the Sixth Amendment. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. The Sixth Amendment right to counsel protects "the fundamental right to a fair trial." Id., 466 U.S. at 674, 104 S.Ct. 2063, 80 L:Ed.2d 674. "A fair trial is one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding." Id., 466 U.S. 674, ...
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