State v. Moody

Opinion

[Cite as State v. Moody, 2026-Ohio-2743.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : C.A. No. 30693 Appellee : : Trial Court Case No. 2014 CR 03237 v. : : (Criminal Appeal from Common Pleas CURTIS ANTHONY MOODY : Court) : Appellant : FINAL JUDGMENT ENTRY & : OPINION

...........

Pursuant to the opinion of this court rendered on July 17, 2026, the judgment of the

trial court is affirmed.

Costs to be paid as stated in App.R. 24.

Pursuant to Ohio App.R. 30(A), the clerk of the court of appeals shall immediately

send a copy of the court’s ruling to each party and note that action on the docket.

Additionally, pursuant to App.R. 27, the clerk of the court of appeals shall send a certified

copy of this judgment, which constitutes a mandate, to the clerk of the trial court and note

the service on the appellate docket.

For the court,

RONALD C. LEWIS, PRESIDING JUDGE

EPLEY, J., and HANSEMAN, J., concur. OPINION MONTGOMERY C.A. No. 30693

CURTIS ANTHONY MOODY, Appellant, Pro Se ANDREW T. FRENCH, Attorney for Appellee

LEWIS, P.J.

{¶ 1} Appellant Curtis Anthony Moody appeals from the Montgomery County

Common Pleas Court’s order denying his January 22, 2025 petition for postconviction relief.

For the following reasons, we affirm the judgment of the trial court.

I. Course of Proceedings

{¶ 2} In November 2015, Moody was convicted, after a jury trial, of two counts of

murder (proximate result of felonious assault), two counts of felonious assault, and one

count of having weapons while under disability. Moody was sentenced to an aggregate

prison term of 21 years to life. Moody appealed. We overruled his six assignments of error

and affirmed his convictions. State v. Moody, 2016-Ohio-8366 (2d Dist.).

{¶ 3} On January 18, 2017, Moody filed his first petition for postconviction relief,

arguing that his trial counsel provided ineffective assistance because he did not investigate

alibi witnesses that would have proved Moody’s innocence. The trial court denied the

petition, finding it untimely and concluding that Moody had not made the showings necessary

to overcome the untimeliness. Moody appealed. We affirmed the trial court’s judgment

because Moody had failed to establish that he had been unavoidably prevented from timely

filing his petition and had failed to show by clear and convincing evidence that, but for a

constitutional error at trial, no reasonable factfinder would have found him guilty. State v.

Moody, 2018-Ohio-2561, ¶ 5-6 (2d Dist.).

2 {¶ 4} In 2021, Moody filed a motion for leave to file a motion for a new trial. In his

motion, Moody argued that an autopsy diagram of the chief medical coroner’s examination

report had been forged or falsified. He contended that his trial counsel had performed

deficiently by failing to fully investigate the facts and circumstances surrounding the autopsy

reports. The trial court denied the motion for leave. State v. Moody, 2024-Ohio-864, ¶ 5

(2d Dist.). Moody sought a delayed appeal of the trial court’s decision, but we denied his

request and dismissed the appeal. Id.

{¶ 5} On June 24, 2022, Moody filed a second petition for postconviction relief,

claiming that his trial counsel had rendered ineffective assistance of counsel by failing to

(1) impeach Moody’s mother, (2) file a motion for a continuance, and (3) investigate further

evidence. Id. at ¶ 6. The trial court concluded that Moody’s petition was untimely and

barred by res judicata. Id. at ¶ 7. On March 8, 2024, we affirmed the trial court’s judgment

on these same grounds. Regarding res judicata, we explained, “Moody’s present claims

were either raised in his prior appeal and overruled by this court, or could have been raised,

but were not, when he filed his direct appeal and/or prior petition for postconviction relief.”

Id. at ¶ 17.

{¶ 6} On January 22, 2025, Moody filed a motion to vacate his sentence due to plain

error “pursuant to Crim.R. 52(B).” According to Moody, his trial counsel’s performance was

deficient because he had failed to adequately investigate evidence identified in Dr. Lee

Lehman’s forensic pathologist reports and had failed to challenge the trial court’s decision

to allow Dr. Lehman to continue to testify beyond the scope of his written autopsy report.

Moody attached to his motion a short excerpt from the November 2015 trial transcript, a

purported copy of a September 2014 autopsy report signed by Dr. Lehman, a July 18, 2015

3 diagram labeled “Exhibit A” purportedly showing exit and entry wounds, and a September 8,

2014 toxicology lab report.

{¶ 7} On March 14, 2025, the trial court denied Moody’s January 22, 2025 motion.

The court explained that Moody’s motion was barred by res judicata because he was “again

alleging error surrounding the report, diagram, and testimony of Dr. Lehman that has already

been addressed and rejected by this Court and the Second District Court of Appeals on

more than one occasion.” On November 25, 2025, Moody filed an appeal from the trial

court’s judgment.

II. Jurisdictional Issue

{¶ 8} Before we resolve Moody’s assignment of error, we must consider whether we

have jurisdiction over this appeal, because the notice of appeal was not filed within 30 days

of the trial court’s final entry as required by App.R. 4(A)(1). To vest jurisdiction in an

appellate court, a party must file a timely notice of appeal. State v. Bray, 2017-Ohio-118,

¶ 9 (2d Dist.). We may raise jurisdictional issues on our own motion, because subject-

matter jurisdiction “‘may not be waived or bestowed upon a court by the parties to the case.’”

Care Risk Retention Group v. Martin, 2010-Ohio-6091, ¶ 97 (2d Dist.), quoting State ex rel.

White v. Cuyahoga Metro. Hous. Auth., 1997-Ohio-366, ¶ 6.

{¶ 9} “A postconviction proceeding is not an appeal of a criminal conviction, but,

rather, a collateral civil attack on the judgment.” State v. Steffen, 1994-Ohio-111, ¶ 60,

citing State v. Crowder, 60 Ohio St.3d 151 (1991). Consequently, courts have held that

“App.R. 4(A)(1) and (3) control appeals from the denial of a postconviction relief petition.”

State v. Brisco, 2020-Ohio-4582, ¶ 11 (10th Dist.). As noted, under App.R. 4(A)(1), notices

of appeal must be filed within 30 days after a final entry is filed.

4 {¶ 10} In civil cases, “if the clerk has not completed service of the judgment within the

three-day period prescribed in Civ.R. 58(B), the 30-day periods referenced in App.R. 4(A)(1)

and 4(A)(2) begin to run on the date when the clerk actually completes service.”

App.R. 4(A)(3). Thus, “‘the filing of a notice of appeal from the denial of a petition for post-

conviction relief under R.C. 2953.21 must be made within 30 days of the entry of judgment

where there is compliance with Civ.R. 58(B), or within 30 days of notice of the judgment and

its entry if service is not made within the three day period of Civ.R. 58(B).’” Brisco at ¶ 13,

quoting State v. Williams, 2006-Ohio-842, ¶ 6 (10th Dist.).

{¶ 11} Civ.R. 58(B) contains certain requirements, including that the court shall

endorse on its judgment a direction to the clerk to serve upon all parties notice of the

judgment and its date of entry upon the journal. “Within three days of entering the judgment

upon the journal, the clerk shall serve the parties in a manner prescribed by Civ. R. 5(B) and

note the service in the appearance docket.” Civ.R. 58(B). The rule further states, “Upon

serving the notice and notation of the service in the appearance docket, the service is

complete.”

{¶ 12} In the case before us, the trial court did not make the required endorsement

on the judgment entry, and the clerk did not make a notation in the appearance docket

concerning the fact that it had served the required notice. In this regard, we note that there

is no such notation in the docket sheet the clerk transmitted to us, nor is there any such

notation in the clerk’s online docket. As a result, although Moody’s notice of appeal was

not filed within 30 days of the March 14, 2025 judgment, Moody’s appeal of the trial court’s

decision was timely. Therefore, we have jurisdiction to address Moody’s assignment of

error.

5 III. The Trial Court Did Not Abuse Its Discretion by Denying Moody’s

Successive Petition for Postconviction Relief

{¶ 13} Moody’s assignment of error states:

DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF TRIAL

COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH

AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE 1, SECTION 10,

AND 16, OF THE OHIO CONSTITUTION.

{¶ 14} Although styled a motion under Crim.R. 52, Moody’s January 22, 2025 filing at

issue in this appeal is a petition for postconviction relief under R.C. 2953.21. Generally, we

review trial court’s decisions granting or denying petitions for postconviction relief under an

abuse-of-discretion standard. State v. Perkins, 2011-Ohio-5070, ¶ 16 (2d Dist.), citing

State v. Gondor, 2006-Ohio-6679, ¶ 45. However, whether the trial court possessed

subject-matter jurisdiction to entertain a petition for postconviction relief is a question of law

subject to de novo review. State v. Bethel, 2022-Ohio-783, ¶ 20, citing State v. Apanovitch,

2018-Ohio-4744, ¶ 24.

{¶ 15} Pursuant to R.C. 2953.21(A)(1)(a), “[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 . . . may file a petition in the court

that imposed sentence, stating the grounds for relief relied upon, and asking the court to

vacate or set aside the judgment or sentence or to grant other appropriate relief.” Moody’s

January 22, 2025 petition is a successive petition for postconviction relief. R.C. 2953.23(A)

precludes trial courts from entertaining successive petitions for postconviction relief unless

one of the exceptions in the statute applies. The only possible exception that could apply

in this matter is set forth in R.C. 2953.23(A)(1). That provision requires the petitioner to

6 establish that he was either: (1) unavoidably prevented from discovering the facts upon

which he relies to present his claim; or (2) subsequent to the period prescribed in

R.C. 2953.21(A)(2) or to the filing of an earlier petition, the United States Supreme Court

recognized a new federal or state right that applies retroactively to the petitioner’s situation

and the petition asserts a claim based on that right. R.C. 2953.23(A)(1)(a). “The petitioner

must also show by clear and convincing evidence that, if not for the constitutional error from

which he suffered, no reasonable factfinder could have found him guilty.” State v.

DeVaughns, 2017-Ohio-475, ¶ 26 (2d Dist.), citing R.C. 2953.23(A)(1)(b).

{¶ 16} Moody’s petition for postconviction relief did not establish that either exception

in R.C. 2953.23(A)(1)(a) applied. First, Moody did not demonstrate that he was

unavoidably prevented from discovering the facts upon which his postconviction claims

depended. Second, he did not allege that the United States Supreme Court had recognized

a new federal or state right that applied retroactively to his situation.

{¶ 17} Moody “bears the burden of showing that he was unavoidably prevented from

discovering the evidence on which the petition relies.” State v. Johnson, 2024-Ohio-134,

¶ 18. “A petitioner may make the required showing either by establishing a violation under

Brady [v. Maryland], 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 [(1963)], or by

demonstrating that he was previously unaware of the evidence on which the petition relies

and could not have discovered it by exercising reasonable diligence.” Id.

{¶ 18} In this case, Moody’s successive petition for postconviction relief did not

demonstrate that he was previously unaware of the evidence on which the petition relied

and could not have discovered it by exercising reasonable diligence. Instead, Moody

simply attached to his petition a copy of a short excerpt from the November 2015 trial

transcript, a copy of a September 2014 autopsy report signed by Dr. Lehman, a copy of a

7 July 18, 2015 diagram labeled “Exhibit A” purportedly showing exit and entry wounds, and

a copy of a September 8, 2014 toxicology lab report. All this evidence is dated prior to his

trial date. Moody did not explain in his January 22, 2025 petition how he was unavoidably

prevented from discovering the facts upon which his petition was based. And Moody failed

to attach any affidavits or evidence to his petition explaining why he was unavoidably

prevented from discovering the facts that he relied on in his petition.

{¶ 19} Moody also did not establish a Brady violation. To do so, Moody was required

to establish that the State suppressed the evidence on which he relied. While Moody

alleged in his petition that the State deviated from Crim.R. 16(K) by failing to disclose

Dr. Lehman’s expert report, Moody did not attach an affidavit from him or his trial counsel

establishing that they did not timely receive any evidence through the discovery process.

Further, Moody did not submit any affidavits or other evidence establishing that the State

had possessed alleged Brady material prior to Moody’s trial. Therefore, Moody did not

establish a Brady violation, and the trial court lacked subject-matter jurisdiction to entertain

his successive petition for postconviction relief.

{¶ 20} Finally, Moody’s petition was also barred by res judicata. “The doctrine of res

judicata can also apply to bar successive petitions for post-conviction relief.” State v.

Weber, 2020-Ohio-4851, ¶ 14 (2d Dist.), citing State v. Finfrock, 1998 WL 726478, *5

(2d Dist. Oct. 16, 1998). Indeed, “[p]ostconviction review is a narrow remedy, since res

judicata bars any claim that was or could have been raised at trial or on direct appeal.”

Steffen, 1994-Ohio-111, at ¶ 60, citing State v. Duling, 21 Ohio St.2d 13 (1970), and State

v. Perry, 10 Ohio St.2d 175 (1967). Under the doctrine of res judicata, “‘[a] valid, final

judgment rendered upon the merits bars all subsequent actions based upon any claim

arising out of the transaction or occurrence that was the subject matter of the previous

8 action.’” State ex rel. O'Malley v. Russo, 2019-Ohio-1698, ¶ 27, quoting Grava v. Parkman

Twp., 1995-Ohio-331, syllabus. “‘Accordingly, if the claims brought in a second petition for

post-conviction relief are ones that were or could have been brought in an earlier petition for

post-conviction relief, a trial court does not abuse its discretion in denying the second petition

for post-conviction relief on the basis of res judicata.’” Weber at ¶ 15, quoting Finfrock at

*5.

{¶ 21} The arguments raised by Moody in his January 22, 2025 petition for

postconviction relief were or could have been raised in his two prior petitions for

postconviction relief and his 2021 motion for leave to file a motion for a new trial. Therefore,

the arguments raised in Moody’s January 22, 2025 petition were barred by res judicata.

{¶ 22} The trial court did not abuse its discretion by denying Moody’s successive

petition for postconviction relief. Moody’s assignment of error is overruled.

IV. Conclusion

{¶ 23} Having overruled the assignment of error, we affirm the judgment of the trial

court.

.............

EPLEY, J., and HANSEMAN, J., concur.