State v. William H. Ashley, 00-LW-2908

• Court: United States Court of Appeals (Ohio)
• Writing for the Court: ABELE, J.
• Parties: STATE OF OHIO, Plaintiff-Appellee v. WILLIAM H. ASHLEY, Defendant-Appellant Case
• Decision Date: 14 June 2000
• Docket Number: 00-LW-2908,99 CA 2514

STATE OF OHIO, Plaintiff-Appellee
v.
WILLIAM H. ASHLEY, Defendant-Appellant

No. 99 CA 2514.

00-LW-2908 (4th)

Court of Appeals of Ohio, Fourth District, Ross

June 14, 2000

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

ABELE, J.

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:

FIRST ASSIGNMENT OF ERROR:

"PROSECUTORIAL MISCONDUCT IN VOUCHING FOR THE CREDIBILITY OF WITNESSES, AND COMMENTS ON EVIDENCE NOT IN THE RECORD."

SECOND ASSIGNMENT OF ERROR:

"FAILURE OF THE STATE TO PROVE AN ESSENTIAL ELEMENT OF THE CHARGED CRIME."

THIRD ASSIGNMENT OF ERROR:

"COUNSEL[']S FAILURE TO CALL APPELLANT AS A DEFENSE WITNESS CONSTITUTES INEFFECTIVE ASSISTANCE OF COUNSEL."

FOURTH ASSIGNMENT OF ERROR:

"COUNSEL[']S FAILURE TO CONDUCT INVESTIGATION OR FORENSIC TESTS OR CALL ANY WITNESSES CONSTITUTES INEFFECTIVE ASSISTANCE OF COUNSEL."

FIFTH ASSIGNMENT OF ERROR:

"COUNSEL[']S ENTERING INTO STIPULATIONS THAT REMOVE ESSENTIAL ELEMENTS FROM THE JURY[']S CONSIDERATION CONSTITUTES INEFFECTIVE ASSISTANCE OF COUNSEL."

SIXTH ASSIGNMENT OF ERROR:

"COUNSEL[']S FAILURE TO FILE A MOTION TO SUPPRESS KEY WITNESS TESTIMONY CONSTITUTES INEFFECTIVE ASSISTANCE OF COUNSEL."

SEVENTH ASSIGNMENT OF ERROR:

"THE CUMULATIVE EFFECT OF ERRORS DEPRIVED APPELLANT OF DUE PROCESS."

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.

We readily affirm the trial court's judgment of dismissal

for the following reasons. First, every error assigned by

appellant in this appeal goes to alleged improprieties that

occurred at trial almost nine (9) years ago. The sole issue

before us now, however, is whether the court erred in dismissing

the motion for postconviction relief. Appellant does not

specifically address this issue in any assignment of error and,

thus, we have no basis for reversing the judgment below.

Second, appellant filed his postconviction relief petition

beyond the applicable time limits. The postconviction relief

provisions set forth in R.C. 2953.21 et seq. were amended,

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,...