[Cite as State v. Burns, 2019-Ohio-1130.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. John W. Wise, P. J. Plaintiff-Appellee Hon. Patricia A. Delaney, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 18 CA 88 ROBERT L. BURNS, JR.
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 12 CR 116
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 27, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
BILL HAYES ROBERT L. BURNS, JR., PRO SE PROSECUTING ATTORNEY CHILLICOTHE CORR. INSTITUTION NATHANIEL H. HURST P. O. BOX 5500 ASSISTANT PROSECUTOR Chillicothe, Ohio 45601 20 South 2nd Street Newark, Ohio 43055 Licking County, Case No. 18 CA 88 2
Wise, John, P. J.
{¶1} Appellant Robert L. Burns, Jr. appeals the decision of the Court of Common
Pleas, Licking County, which denied his pro se post-conviction relief (“PCR”) petition.
Appellee is the State of Ohio. The relevant facts leading to this appeal are as follows.
{¶2} In March 2012, appellant was charged with three counts of illegal use of a
minor in a nudity-oriented performance, three counts of corruption of a minor, and two
counts of corruption of a minor with drugs. Following a jury trial in the Licking County
Court of Common Pleas, appellant was convicted on all but one count of corruption of a
minor with drugs. The trial court sentenced him to a total prison term of thirteen years and
three months, with the terms to run consecutively. Additionally, appellant was classified
as a sexually oriented offender, with an annual registration requirement for ten years.
{¶3} Appellant then filed a direct appeal to this Court, arguing in his sole
assigned error that his due process rights were violated when the State read portions of
his son's prior testimony from a juvenile proceeding, for purposes of refreshing the son's
recollection. On October 9, 2012, we overruled the assigned error and affirmed
appellant's convictions. See State v. Burns, 5th Dist. Licking No. 2012–CA–37, 2012–
Ohio–4706.
{¶4} On October 22, 2015, more than three years after his trial, appellant filed a
pro se petition for post-conviction relief (“PCR”). Via a judgment entry issued on
November 25, 2015, the trial court denied appellant's petition for post-conviction relief as
untimely. On July 6, 2016, we affirmed. See State v. Burns, 5th Dist. Licking No. 15–CA–
98, 2016–Ohio–4833. Appellant's attempts to have the decision reviewed by the Ohio
Supreme Court and the United States Supreme Court were unsuccessful. See State v. Licking County, Case No. 18 CA 88 3
Burns, 147 Ohio St.3d 1506, 2017–Ohio–261, 67 N.E.3d 824; Burns v. Ohio, 138 S.Ct.
73, 199 L.Ed.2d 50 (2017).
{¶5} In addition, on February 23, 2015, prior to his aforesaid PCR petition,
appellant had filed a post-conviction “motion for production of Brady material.” Then, on
June 22, 2017, appellant filed a “motion to compel disclosure of exculpatory material and
information.”
{¶6} On August 8, 2017, the trial court denied appellant's motion to compel
disclosure via a judgment entry. Appellant then appealed that decision to this Court. On
January 8, 2018, we overruled his sole assigned error and affirmed. See State v. Burns,
5th Dist. Licking No. 17 CA 0069, 2018-Ohio-81. Appellant thereafter unsuccessfully
sought a certification of conflict (App.R. 25). Appellant otherwise did not pursue an appeal
to the Ohio Supreme Court.
{¶7} On August 31, 2018, appellant filed another petition for post-conviction relief
in the trial court, captioned as a “petition to vacate or set aside judgment of conviction or
sentence.”
{¶8} On September 6, 2018, the trial court, via judgment entry, denied the
successive PCR petition without conducting a hearing.1
{¶9} On October 2, 2018, appellant filed a notice of appeal. He herein raises the
following two Assignments of Error:
1 Appellant has failed to include or attach with his brief a copy of the judgment entry under appeal. See Loc.App.R. 9(A). We have nonetheless reviewed the original document in the record. Licking County, Case No. 18 CA 88 4
{¶10} “I. THE TRIAL COURT ERRED OR ABUSED ITS DISCRETION
DISMISSING A POST-CONVICTION PETITION BASED UPON FRAUD UPON THE
COURT.
{¶11} “II. THE TRIAL COURT ERRED OR ABUSED ITS DISCRETION
DISMISSING A POST-CONVICTION PETITION WITHOUT GIVING FINDINGS OF
FACT AND CONCLUSIONS OF LAW.”
I.
{¶12} In his First Assignment of Error, appellant argues that the trial court erred
and/or abused its discretion in denying his August 31, 2018 post-conviction petition. We
disagree.
{¶13} The requirements for second or successive PCR petitions, as pertinent to
the case sub judice, are detailed in R.C. 2953.23(A)(1), as follows:
(A) Whether a hearing is or is not held on a petition filed pursuant to
section 2953.21 of the Revised Code, a court may not entertain * * * a
second petition or successive petitions for similar relief on behalf of a
petitioner unless division (A)(1) or (2) of this section applies:
(1) Both of the following apply:
(a) Either 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, or, subsequent to the period prescribed in
division (A)(2) of section 2953.21 of the Revised Code or to the filing of an
earlier petition, the United States Supreme Court recognized a new federal Licking County, Case No. 18 CA 88 5
or state right that applies retroactively to persons in the petitioner's situation,
and the petition asserts a claim based on that right.
(b) The petitioner shows by clear and convincing evidence that, but
for constitutional error at trial, no reasonable factfinder would have found
the petitioner guilty of the offense of which the petitioner was convicted or,
if the claim challenges a sentence of death that, but for constitutional error
at the sentencing hearing, no reasonable factfinder would have found the
petitioner eligible for the death sentence.
* * *.
{¶14} Furthermore, “[r]es judicata applies to bar raising piecemeal claims in
successive postconviction relief petitions or motions to withdraw a guilty plea that could
have been raised, but were not, in the first postconviction relief petition or motion to
withdraw a guilty plea.” State v. Kent, 4th Dist. Jackson No. 02CA21, 2003–Ohio–6156,
¶ 6. The applicability of res judicata is a question of law, which an appellate court reviews
de novo. State v. Godfrey, 5th Dist. Licking No. 14 CA 39, 2014-Ohio-4720, ¶ 23.
{¶15} Appellant in the case sub judice, in his present brief and reply brief, fails to
demonstrate compliance with R.C. 2953.23(A)(1), supra, or adequately explain why res
judicata would not defeat his successive PCR attempt. Instead, much of his argument is
devoted to a generalized claim that his trial counsel, and to a lesser extent the trial
prosecutor, committed a “fraud upon the court” for purposes of Civ.R. 60(B).
{¶16} Certainly, a motion for relief from judgment may be treated as a petition for
post-conviction relief even when the motion is presented as a Civ.R. 60(B) motion. State
v. Reynolds, 5th Dist. Richland No. 09-CA-13, 2009-Ohio-3998, ¶ 15, citing State v. Licking County, Case No. 18 CA 88 6
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[Cite as State v. Burns, 2019-Ohio-1130.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. John W. Wise, P. J. Plaintiff-Appellee Hon. Patricia A. Delaney, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 18 CA 88 ROBERT L. BURNS, JR.
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 12 CR 116
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 27, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
BILL HAYES ROBERT L. BURNS, JR., PRO SE PROSECUTING ATTORNEY CHILLICOTHE CORR. INSTITUTION NATHANIEL H. HURST P. O. BOX 5500 ASSISTANT PROSECUTOR Chillicothe, Ohio 45601 20 South 2nd Street Newark, Ohio 43055 Licking County, Case No. 18 CA 88 2
Wise, John, P. J.
{¶1} Appellant Robert L. Burns, Jr. appeals the decision of the Court of Common
Pleas, Licking County, which denied his pro se post-conviction relief (“PCR”) petition.
Appellee is the State of Ohio. The relevant facts leading to this appeal are as follows.
{¶2} In March 2012, appellant was charged with three counts of illegal use of a
minor in a nudity-oriented performance, three counts of corruption of a minor, and two
counts of corruption of a minor with drugs. Following a jury trial in the Licking County
Court of Common Pleas, appellant was convicted on all but one count of corruption of a
minor with drugs. The trial court sentenced him to a total prison term of thirteen years and
three months, with the terms to run consecutively. Additionally, appellant was classified
as a sexually oriented offender, with an annual registration requirement for ten years.
{¶3} Appellant then filed a direct appeal to this Court, arguing in his sole
assigned error that his due process rights were violated when the State read portions of
his son's prior testimony from a juvenile proceeding, for purposes of refreshing the son's
recollection. On October 9, 2012, we overruled the assigned error and affirmed
appellant's convictions. See State v. Burns, 5th Dist. Licking No. 2012–CA–37, 2012–
Ohio–4706.
{¶4} On October 22, 2015, more than three years after his trial, appellant filed a
pro se petition for post-conviction relief (“PCR”). Via a judgment entry issued on
November 25, 2015, the trial court denied appellant's petition for post-conviction relief as
untimely. On July 6, 2016, we affirmed. See State v. Burns, 5th Dist. Licking No. 15–CA–
98, 2016–Ohio–4833. Appellant's attempts to have the decision reviewed by the Ohio
Supreme Court and the United States Supreme Court were unsuccessful. See State v. Licking County, Case No. 18 CA 88 3
Burns, 147 Ohio St.3d 1506, 2017–Ohio–261, 67 N.E.3d 824; Burns v. Ohio, 138 S.Ct.
73, 199 L.Ed.2d 50 (2017).
{¶5} In addition, on February 23, 2015, prior to his aforesaid PCR petition,
appellant had filed a post-conviction “motion for production of Brady material.” Then, on
June 22, 2017, appellant filed a “motion to compel disclosure of exculpatory material and
information.”
{¶6} On August 8, 2017, the trial court denied appellant's motion to compel
disclosure via a judgment entry. Appellant then appealed that decision to this Court. On
January 8, 2018, we overruled his sole assigned error and affirmed. See State v. Burns,
5th Dist. Licking No. 17 CA 0069, 2018-Ohio-81. Appellant thereafter unsuccessfully
sought a certification of conflict (App.R. 25). Appellant otherwise did not pursue an appeal
to the Ohio Supreme Court.
{¶7} On August 31, 2018, appellant filed another petition for post-conviction relief
in the trial court, captioned as a “petition to vacate or set aside judgment of conviction or
sentence.”
{¶8} On September 6, 2018, the trial court, via judgment entry, denied the
successive PCR petition without conducting a hearing.1
{¶9} On October 2, 2018, appellant filed a notice of appeal. He herein raises the
following two Assignments of Error:
1 Appellant has failed to include or attach with his brief a copy of the judgment entry under appeal. See Loc.App.R. 9(A). We have nonetheless reviewed the original document in the record. Licking County, Case No. 18 CA 88 4
{¶10} “I. THE TRIAL COURT ERRED OR ABUSED ITS DISCRETION
DISMISSING A POST-CONVICTION PETITION BASED UPON FRAUD UPON THE
COURT.
{¶11} “II. THE TRIAL COURT ERRED OR ABUSED ITS DISCRETION
DISMISSING A POST-CONVICTION PETITION WITHOUT GIVING FINDINGS OF
FACT AND CONCLUSIONS OF LAW.”
I.
{¶12} In his First Assignment of Error, appellant argues that the trial court erred
and/or abused its discretion in denying his August 31, 2018 post-conviction petition. We
disagree.
{¶13} The requirements for second or successive PCR petitions, as pertinent to
the case sub judice, are detailed in R.C. 2953.23(A)(1), as follows:
(A) Whether a hearing is or is not held on a petition filed pursuant to
section 2953.21 of the Revised Code, a court may not entertain * * * a
second petition or successive petitions for similar relief on behalf of a
petitioner unless division (A)(1) or (2) of this section applies:
(1) Both of the following apply:
(a) Either 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, or, subsequent to the period prescribed in
division (A)(2) of section 2953.21 of the Revised Code or to the filing of an
earlier petition, the United States Supreme Court recognized a new federal Licking County, Case No. 18 CA 88 5
or state right that applies retroactively to persons in the petitioner's situation,
and the petition asserts a claim based on that right.
(b) The petitioner shows by clear and convincing evidence that, but
for constitutional error at trial, no reasonable factfinder would have found
the petitioner guilty of the offense of which the petitioner was convicted or,
if the claim challenges a sentence of death that, but for constitutional error
at the sentencing hearing, no reasonable factfinder would have found the
petitioner eligible for the death sentence.
* * *.
{¶14} Furthermore, “[r]es judicata applies to bar raising piecemeal claims in
successive postconviction relief petitions or motions to withdraw a guilty plea that could
have been raised, but were not, in the first postconviction relief petition or motion to
withdraw a guilty plea.” State v. Kent, 4th Dist. Jackson No. 02CA21, 2003–Ohio–6156,
¶ 6. The applicability of res judicata is a question of law, which an appellate court reviews
de novo. State v. Godfrey, 5th Dist. Licking No. 14 CA 39, 2014-Ohio-4720, ¶ 23.
{¶15} Appellant in the case sub judice, in his present brief and reply brief, fails to
demonstrate compliance with R.C. 2953.23(A)(1), supra, or adequately explain why res
judicata would not defeat his successive PCR attempt. Instead, much of his argument is
devoted to a generalized claim that his trial counsel, and to a lesser extent the trial
prosecutor, committed a “fraud upon the court” for purposes of Civ.R. 60(B).
{¶16} Certainly, a motion for relief from judgment may be treated as a petition for
post-conviction relief even when the motion is presented as a Civ.R. 60(B) motion. State
v. Reynolds, 5th Dist. Richland No. 09-CA-13, 2009-Ohio-3998, ¶ 15, citing State v. Licking County, Case No. 18 CA 88 6
Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431. However, the review
standards regarding a motion for post-conviction relief, not Civ.R. 60(B), will apply. State
v. Sneed, 8th Dist. Cuyahoga No. 93194, 2009-Ohio-5241, ¶ 15, citing Schlee at ¶ 12.
{¶17} Accordingly, appellant's First Assignment of Error is overruled.
II.
{¶18} In his Second Assignment of Error, appellant contends the trial court erred
and/or abused its discretion in dismissing his post-conviction petition without providing
findings of fact and conclusions of law. We disagree.
{¶19} Generally, pursuant to R.C. 2953.21, if a trial court dismisses a petition for
post-conviction relief without a hearing, it must provide findings of fact and conclusions of
law as to why the petition was dismissed. State v. Staats, 5th Dist. Stark No.
2015CA00207, 2016–Ohio–2921, ¶ 19, citing State v. Lester, 41 Ohio St.2d 51, 322
N.E.2d 656 (1975), paragraph two of the syllabus. However, no findings of fact or
conclusions of law are necessary in denying untimely or successive petitions for post-
conviction relief. State v. Tanner, 5th Dist. Muskingum No. CT2005-0022, 2005-Ohio-
5377, f.n. 3, citing State ex rel. Carroll v. Corrigan, 84 Ohio St.3d 529, 1999–Ohio–367,
705 N.E.2d 1226. Licking County, Case No. 18 CA 88 7
{¶20} Appellant's Second Assignment of Error is therefore overruled.
{¶21} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Licking County, Ohio, is hereby affirmed.
By: Wise, John, P. J.
Delaney, J., and
Wise, Earle, J., concur.
JWW/d 0313