[Cite as State v. Newlon, 2025-Ohio-2462.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES: : Hon. Craig R. Baldwin, P.J. Plaintiff - Appellee : Hon. Robert G. Montgomery, J. : Hon. David M. Gormley, J. -vs- : : JASON G. NEWLON, : Case No. CT2025-0034 : Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2023-0126
JUDGMENT: Affirmed
DATE OF JUDGMENT: July 9, 2025
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOSEPH A. PALMER PAUL SCARSELLA MUSKINGUM COUNTY PROSECUTING 511 South High Street ATTORNEY’S OFFICE Columbus, OH 43215 27 North Fifth Street Zanesville, OH 43702 Montgomery, J.
{¶1} Defendant-Appellant, Jason Newlon (“Appellant”) appeals the decision of
the Muskingum County Court of Common Pleas Judgment Entry dated February 20,
2025, denying his Petition to Vacate or Set Aside Judgment of Conviction and Sentence
without a hearing. For the reasons set forth below, we AFFIRM.
STATEMENT OF THE CASE
{¶2} After Appellant was indicted on 31 counts of sexual abuse involving his two
stepdaughters and pleading not guilty, a jury trial was conducted in the Muskingum
County Court of Common Pleas. The jury found Appellant guilty of all charges. Appellant
was sentenced to 66 1/2 years in prison. On November 1, 2023, Appellant, through
counsel, filed a Notice of Appeal to this Court asserting seven (7) assignments of error.1
On December 4, 2023, the trial transcript was filed with this Court. On September 6,
2024, this Court affirmed the convictions and overruled the assignments of error in their
entirety. State v. Newlon, 2024-Ohio-3433 (5th Dist.), appeal not allowed, 2025-Ohio-
231. On December 24, 2024, Appellant filed a Petition to Vacate or Set Aside Judgment
of Conviction and Sentence (“Petition”) and requested a hearing on the matter. On
February 20, 2025, after appropriate briefing, the trial court denied the Motion without an
1 The assignments of error asserted in the direct appeal were as follows: (1) the trial court erred in amending Appellant's indictment (counts one through three) to include a two-year time period when the victim was nine and ten; (2) the introduction of inadmissible evidence was reversibly prejudicial in Appellant's trial; (3) the evidence against Appellant was legally insufficient as to the rape counts to which R.C. 2971.03 applies, and should be reversed. The evidence against Appellant of serious physical harm as to the child endangering counts, should be reversed; (4) the manifest weight of the evidence weighs in favor of not convicting Appellant (5) Appellant's convictions should be reversed because his counsel was prejudicially ineffective; (6) Appellant's convictions should be reversed due to prosecutorial misconduct in rebuttal closing remarks; and (7) Appellant was denied his right to a fair trial in this case because of cumulative error. evidentiary hearing. See Judgment Entry, filed December 24, 2024. Appellant filed the
instant appeal.
ASSIGNMENT OF ERROR
{¶3} “I. THE TRIAL COURT ERRED IN DENYING APPELLANT’S POST- CONVICTION MOTION WITHOUT CONDUCTING AN EVIDENTIARY HEARING IN VIOLATION OF R.C. 2953.21.”
STANDARD OF REVIEW AND ANALYSIS
Postconviction Generally – R.C. 2953.21
{¶4} In Ohio, “[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 under the Ohio Constitution or the Constitution of
the United States” is permitted to “file a petition in the court that imposed [the] sentence,
* * * asking the court to vacate or set aside the judgment or sentence.” R.C.
2953.21(A)(1)(a)(i); State v. Johnson, 2024-Ohio-134. The Ohio Supreme Court defines
a postconviction proceeding as a collateral civil attack on the judgment, such that the right
to file for such relief is a statutory right, not a constitutional one. State v. Calhoun, 86 Ohio
St.3d 279, 281 (1999); State v. Broom, 2016-Ohio-1028, ¶ 28. Therefore, a
postconviction petitioner “receives no more rights than those granted by the statute.”
Calhoun, at 281.
{¶5} An individual must file his or her petition within the required statutory time
frame. R.C. 2953.21(A)(2)(a) provides “[e]xcept as otherwise provided in [R.C. 2953.23],
a petition * * * shall be filed no later than three hundred sixty-five days after the date on
which the trial transcript is filed in the court of appeals in the direct appeal of the judgment
of conviction * * *.” If a postconviction petition is untimely, a trial court generally lacks subject-matter jurisdiction to adjudicate the petition unless an exception applies. State v.
Apanovitch, 2018-Ohio-4744, ¶¶ 36, 38. Whether a court of common pleas possesses
subject-matter jurisdiction to entertain an untimely petition is a question of law, which
appellate courts review de novo. Apanovitch, ¶ 24.
{¶6} In turn, R.C. 2953.23 governs the trial court's jurisdiction to hear untimely
and successive petitions. R.C. 2953.23 states, in pertinent part:
(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 petition
filed after the expiration of the period prescribed in division (A) of that
section or a second petition or successive petitions for similar relief on
behalf of a petitioner unless division (A)(1) or (2) of this section applies2:
(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 * * *
(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 * * *.
{¶7} A petitioner's failure to satisfy R.C. 2953.23(A) deprives the trial court of
jurisdiction to adjudicate the merits of an untimely or successive petition. Ohio appellate
courts have reached the same conclusion. Apanovitch, ¶¶ 36, 38 (numerous citations
omitted); State v. Martin, 2025-Ohio-144, ¶ 23 (11th Dist.) (noting that Ohio’s
2 Subsection (A)(2) clearly does not apply to this case. postconviction statute permits a petitioner to file an untimely or successive petition for
postconviction relief only under specific, limited circumstances). Indeed, in Apanovitch,
the Court stated:
Subject-matter jurisdiction “connotes the power to hear and decide a case
upon its merits.” Morrison v. Steiner, 32 Ohio St.2d 86, 290 N.E.2d 841
(1972), paragraph one of the syllabus. By providing that a court “may not
entertain” an untimely or successive postconviction petition except in limited
circumstances, R.C. 2953.23(A) plainly prohibits a court from hearing and
deciding on the merits a petition that does not meet one of the exceptions.
Id. at ¶ 38.
{¶8} Regarding entitlement to a hearing, a petitioner’s right is not automatic.
State v. Calhoun, 86 Ohio St.3d 279, 282 (1999); State v. Jackson, 64 Ohio St.2d 107,
111 (1980). Indeed, R.C. 2953.21(D) provides that before granting such a hearing, the
court shall determine whether there are “substantive grounds for relief.” In making that
determination, “the court shall consider, in addition to the petition, the supporting
affidavits, and the documentary evidence, all the files and records pertaining to the
proceedings against the petitioner, including, but not limited to, the indictment, the court's
journal entries, the journalized records of the clerk of the court, and the court reporter's
transcript.” R.C. 2953.21(F) further states the trial court must hold a prompt hearing
“unless the petition and the files and records of the case show the petitioner is not entitled
to relief.” “[B]road assertions without a further demonstration of prejudice do not warrant
a hearing for all post-conviction petitions. General conclusory allegations to the effect that
a defendant has been denied effective assistance of counsel are inadequate as a matter of law to impose an evidentiary hearing.” State v. Lichtenwalter, 2021-Ohio-1394, ¶ 42
(5th Dist.), citing State v. Jackson, 64 Ohio St.2d 107, 111 (1980).
{¶9} Thus, a petitioner bears the initial burden to “submit evidentiary documents
containing sufficient operative facts to demonstrate * * * “ “that [constitutional] errors did
occur and that the errors resulted in prejudice.” (Emphasis added) Calhoun at 283,
quoting Jackson, supra, at syllabus; State v. Bunch, 2022-Ohio-4723, ¶ 24. If the record
on its face disproves the petitioner’s claims, the court may dismiss the petition without a
hearing. State v. Wright, 2023-Ohio-2895, ¶ 21. Stated another way, the trial court
performs a gatekeeping role as to whether a defendant will receive a hearing and may
dismiss a petition without a hearing “where the petition, the supporting affidavits, the
documentary evidence, the files, and the records do not demonstrate that petitioner set
forth sufficient operative facts to establish substantive grounds for relief.” State v.
Calhoun, 1999-Ohio-102, paragraph two of the syllabus; State v. Clinton, 2024-Ohio-
4720, ¶¶ 17-19, quoting Bunch, ¶ 23.
{¶10} Importantly, the decision to deny a petition for postconviction relief without
holding an evidentiary hearing is within the sound discretion of the trial court. State v.
Lichtenwalter, 2021-Ohio-1394 (5th Dist.). An abuse of discretion means a decision is
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217
(1983).
Appellant’s Petition was Untimely Filed, thus Triggering R.C. 2953.23
{¶11} Here, Appellant argues that the trial court erred in denying his petition
without first conducting a hearing. However, as an initial matter, we must address
whether Appellant’s petition was timely filed. The full trial transcript associated with his direct appeal was filed with this Court on December 4, 2023, but his Motion for
postconviction relief was filed on December 24, 2024, more than 365 days after the
transcript. Thus, pursuant to R.C. 2953.21, Appellant’s petition was untimely filed and
the trial court lacked jurisdiction to adjudicate Appellant’s post-conviction petition unless
Appellant meets the standard set forth in R.C. 2953.23(A)(1)(a) and (b). Apanovitch,
¶ 38. Appellant must demonstrate he was both “unavoidably prevented” from discovering
the facts upon which he must rely to present the claim for relief and “but for constitutional
error” at trial (ineffective assistance of counsel), the result would have been different. We
conclude that Appellant fails to meet these statutory requirements.
{¶12} First, Appellant does not explain how any such “facts” are new or how he
was unavoidably prevented from discovering them prior to his trial. Martin, ¶ 47. A
petitioner is “unavoidably prevented” from the discovery of facts only if he had “no
knowledge of the existence of those facts and could not have learned of their existence
within the time specified for filing his petition in the exercise of reasonable diligence.”
State v. Holnapy, 2013-Ohio-4307, ¶ 32 (11th Dist.). Thus, “facts” as contemplated by the
statute are the historical facts of the case, which occurred up to and including the time of
conviction. State v. Turner, 2007-Ohio-1468, ¶ 11 (10th Dist.); State v. Black, 2022-Ohio-
3119, ¶ 11 (10th Dist.) (“[T]he exception provided in R.C. 2953.23(A)(1)(a) involves newly
discovered evidence.”). Newly discovered legal arguments or defenses are not newly
discovered facts as contemplated by the statute. Martin, ¶ 59.
{¶13} Here, Appellant’s “new” evidence is an alleged witness/witnesses “that can
testify to a [c]ontradictory statement made by witnesses that took the stand and made
perjurious statements against me, and physical evidentiary documents and recordings of the witnesses themselves speaking in contradiction of their own statements.” See Reply
Brief to State’s Memo in Opposition to Petition, at p. 2, filed Jan. 21, 2025. Appellant
does not provide any information regarding the witness(es), whether said witness(es)
previously testified, and there are no supporting affidavits from said witness(es). Most
importantly, Appellant completely fails to demonstrate, or even allege, how or why he was
“unavoidably prevented” from discovering same. Likewise, Appellant does not set forth
the nature of any documents or recordings or that he claims contain “exculpatory”
evidence. Simply stated, Appellant’s Petition contains nothing more than self-serving
statements and arguments that are insufficient to meet the standard set forth in R.C.
2953.23(A)(1)(a).
{¶14} Similarly, Appellant cannot demonstrate by clear and convincing evidence
that “but for constitutional error” at trial - alleged ineffective assistance of counsel – the
result would have been different. See R.C. 2953.23(A)(1)(b); Lichtenwalter, ¶¶ 45-46.
Appellant asserts that his trial counsel failed to do the following: (1) to investigate or
introduce exculpatory evidence provided by the Appellant; (2) to adequately cross
examine prosecution witnesses; (3) to object to perjured testimony; (4) to investigate
concerns that a juror fell asleep during trial; and (5) to object to instances of prosecutorial
misconduct. Notably, Appellant raised similar claims in his direct appeal and his claims
were rejected.3 Importantly, when a petition for post-conviction relief is based on
ineffective assistance of counsel, the petitioner must submit “evidence dehors the record.”
State v. Schlee, 1998 WL 964291, at *5-6 (11th Dist.). The evidence outside the record
“must meet some threshold standard of cogency.” Id. at *5 (holding that the evidence
3 See the analysis below regarding res judicata. must be genuinely relevant, and it must materially advance a petitioner's claim that there
has been a denial or infringement of his or her constitutional rights).
{¶15} To prevail on a Sixth Amendment claim alleging ineffective assistance of
counsel, a defendant must show that his counsel's performance was deficient and that
his counsel's deficient performance in fact prejudiced him or her.4 Strickland v.
Washington, 466 U.S. 668, 694 (1984); Mansfield v. Studer, 2012-Ohio-4840 (5th Dist.).
To show deficiency, a defendant must show that “counsel's representation fell below an
objective standard of reasonableness.” Id. at 688. Regarding prejudice, a defendant must
show “that there is a reasonable probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different.” Id. at 694. To warrant a finding
that trial counsel was ineffective, the petitioner must meet both the deficient performance
and prejudice prongs. Knowles v. Mirzayance, 556 U.S. 111 (2009).
{¶16} Importantly, due to “the variety of circumstances faced by defense counsel
[and] the range of legitimate decisions regarding how best to represent a criminal
defendant,” the performance inquiry necessarily turns on “whether counsel's assistance
was reasonable considering all the circumstances.” Strickland at 689. At all points,
“[j]udicial scrutiny of counsel's performance must be highly deferential.” Strickland at 689;
Studer at ¶¶ 58-61.
{¶17} Here, Appellant’s direct appeal argued ineffective assistance of counsel
alleging some of the same arguments as asserted in the instant petition. The record
reveals that trial counsel properly requested any exculpatory evidence from the
prosecution prior to trial, that trial counsel objected to evidence at appropriate times, that
4 Although the instant claim is presented in a Petition for postconviction relief, the Sixth Amendment analysis remains instructive. trial counsel fully cross-examined each witness at trial to expose discrepancies in
testimony, and that trial counsel zealously argued and advocated on behalf of Appellant
at all stages leading up to trial, at the trial itself, and through the sentencing phase. That
Appellant does not agree with some of the strategic decisions made by trial counsel falls
short of demonstrating constitutional error. This Court will not second guess trial strategy,
particularly in a case such as this with very serious charges and strong evidence against
Appellant. Strickland at 689; Studer at ¶¶ 58-61.
{¶18} Further, the evidence in the record is beyond sufficient to convince a
reasonable factfinder of Appellant’s guilt. Both victims testified in detail about how the
abuse started when they were only 9 years old, how often it occurred, the specific acts
that occurred, and the fact that it took place for many, many years. In the direct appeal,
this Court stated:
Based upon the entire record in this matter, we find Appellant's convictions
are not against the sufficiency or the manifest weight of the evidence. To
the contrary, the jury appears to have fairly and impartially decided the
matters before them. The jury heard the witnesses, evaluated the evidence,
and was convinced of Appellant's guilt. * * *
There is substantial evidence on which the jury could properly conclude
beyond a reasonable doubt that Appellant committed the acts for which he
was indicted and convicted. * * * Therefore, in light of the evidence, as well
as the record in its entirety, we find the jury clearly did not lose its way
concluding that Newlon was guilty. We find that the jury did not disregard or
overlooked compelling evidence that weighed against conviction. Newlon, ¶¶ 130, 131.
{¶19} Upon our de novo review under R.C. 2953.23 regarding untimely petitions,
we conclude Appellant cannot demonstrate (1) that he was unavoidably prevented from
discovering the “facts” that he now relies upon and/or (2) that his trial counsel’s alleged
errors in fact prejudiced Appellant such that no reasonable factfinder would have found
him guilty of the offenses for which he was convicted. On its face, the record disproves
Appellant’s entitlement to any relief. Accordingly, the trial court did not abuse its discretion
in denying Appellant’s untimely petition without conducting a hearing.
Res Judicata also bars Appellant’s renewed claim of ineffective assistance of counsel
{¶20} Relatedly, the State argues that the doctrine of res judicata bars Appellant’s
“renewed claim” of ineffective assistance of counsel. The doctrine of res judicata applies
to postconviction relief proceedings. State v. Perry, 10 Ohio St.2d 175, 179 (1967). The
general rule of res judicata is that “a final judgment of conviction bars the convicted
defendant from raising and litigating in any proceeding, except an appeal from that
judgment, any [claim] that was raised or could have been raised by the defendant at the
trial which resulted in that judgment of conviction or on an appeal from that judgment.”
State v. Blanton, 2022-Ohio-3985, ¶ 91, quoting Perry at 180; State v. Weaver, 2018-
Ohio-2509, ¶ 17 (5th Dist.) (a defendant is barred from raising an issue in a petition for
postconviction relief if the defendant raised or could have raised the issue at trial or on
direct appeal).
{¶21} Specifically, as applied to claims of ineffective assistance of counsel and
postconviction relief, res judicata does not bar a postconviction ineffective-assistance-of-
counsel claim when either of the following apply: (1) the petitioner had the same attorney at trial and on appeal; or (2) the petitioner must rely on evidence “outside the trial record”
to establish his or her claim for relief. State v. Clinton, 2024-Ohio-4720, ¶ 21 (6th Dist.).
The converse is that when the petitioner had a new attorney on appeal, and the claim
could have been litigated based on the trial record, res judicata applies and the
postconviction claim is barred. Id.; see also McGuire v. Warden, Chillicothe Corr. Inst.,
738 F.3d 741 (6th Cir. 2013) (stating that under Ohio law, res judicata does not bar a
defendant from raising ineffective assistance of counsel in a petition for postconviction
relief if the claim is based on evidence outside the record, even when the issue of
ineffective assistance of counsel was raised on direct appeal).
{¶22} Here, Appellant’s counsel for his direct appeal was different than his trial
counsel, and said counsel asserted a claim of ineffective assistance of counsel as an
assignment of error. This Court rejected Appellant’s claim. As set forth in the analysis
above, Appellant’s handwritten statements attached to the current Petition citing
additional claims of “constitutional violations” are self-serving at best and certainly do not
constitute actual evidence outside the trial record. Indeed, Appellant’s direct appellate
brief was over 40 pages, raising similar if not the same “constitutional errors” Appellant
states in the Petition at issue. Because Appellant’s “renewed” ineffective assistance of
counsel claim could have been litigated in his direct appeal, res judicata also bars
Appellant’s Petition. For the reasons set forth in this opinion, Appellant’s sole assignment
of error is overruled. CONCLUSION
{¶23} The decision of the Muskingum County Court of Common Pleas
denying Appellant’s Petition to Vacate or Set Aside Conviction and Sentence,
without a hearing, is affirmed. Appellant’s sole assignment of error is overruled.
By: Montgomery, J.
Baldwin, P.J. and
Gormley, J. concur.