State v. Reese

2025 Ohio 337

• Court: Ohio Court of Appeals
• Decided: January 30, 2025
• Docket: 24 MA 0075
• Status: Published

Opinion

[Cite as State v. Reese, 2025-Ohio-337.]

IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT MAHONING COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

v.

LAMAR REESE,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY Case No. 24 MA 0075

Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 2013 CR 00828 A

BEFORE: Cheryl L. Waite, Mark A. Hanni, Katelyn Dickey, Judges.

JUDGMENT: Affirmed.

Atty. Lynn Maro, Mahoning County Prosecutor and Atty. Edward A. Czopur, Assistant Prosecutor, for Plaintiff-Appellee

Lamar Reese, Pro se, Defendant-Appellant

Dated: January 30, 2025 –2–

WAITE, J.

{¶1} Appellant Lamar Reese was convicted of aggravated murder in 2014. In

2015, while his direct appeal was pending, he filed a pro se petition seeking

postconviction relief. This appeal involves two procedural matters regarding his petition.

Appellant first argues that the trial court should have given him more time to file a

response to the state's motion to dismiss the petition. R.C. 2953.21, which governs

petitions for postconviction relief, does not provide for a reply to a motion to dismiss a

petition. Regardless, a trial court is permitted to rule on a meritless petition at any time,

so there was no error in ruling on the petition before Appellant responded to the state's

motion to dismiss. Appellant also argues that the trial court should have allowed him to

amend his petition. Appellant's motions to amend were filed several years after the

petition was filed and final judgment was entered. The court was well within its discretion

to deny untimely motions to amend filed long after the petition had already been ruled

upon. Appellant's two assignments of error are overruled, and the judgment of the trial

court is affirmed.

Facts and Procedural History

{¶2} The facts of this case stem from the murder of Joshua Davis in 2011,

Appellant's conviction for the murder, and the post-judgment proceedings that followed.

Appellant attacks both the 2015 denial of his petition for postconviction relief and a recent

order denying Appellant’s motion to amend his 2015 petition.

{¶3} On September 16, 2011, Appellant and three others went to the home of

Joshua Davis to steal marijuana from him. During the theft, Davis was shot and killed.

Appellant and one other assailant were charged with aggravated murder. The case went

Case No. 24 MA 0075 –3–

to jury trial and the jury convicted him on aggravated murder. The court sentenced

Appellant to 20-years-to-life in prison for aggravated murder, 10 years for aggravated

robbery, and three years on two firearm specifications. The sentences were ordered to

be served consecutively, for a total of 33-years-to-life in prison. Appellant filed an appeal

on August 19, 2014. We affirmed his conviction and sentence on February 10, 2016.

{¶4} While the appeal was pending, Appellant filed a pro se petition for

postconviction relief on March 23, 2015. On April 7, 2015, the state filed a motion to

dismiss. The court granted the motion and dismissed the petition on April 10, 2015.

Appellant filed a response to the state’s motion to dismiss on April 16, 2015.

{¶5} On April 20, 2015 Appellant filed a request for findings of fact and

conclusions of law relating to the order dismissing his petition for postconviction relief.

Nothing else was filed in this case for eight years.

{¶6} On March 1, 2023, Appellant filed a motion to amend his original 2015

petition for postconviction relief. On March 21, 2023, the trial court denied this motion.

{¶7} On December 4, 2023, Appellant filed a notice of appeal of the April 10,

2015 final order overruling his March 23, 2015 petition for postconviction relief. Although

the appeal was filed eight-and-one-half years later, as Appellant was never served with

the original order, we accepted his appeal. Appellant filed a brief containing seven

assignments of error. One of the issues raised was that the trial court failed to enter

findings of fact and conclusions of law. The state conceded error on this issue and agreed

the case should be remanded. On June 17, 2024, we reversed the trial court’s denial of

the petition for postconviction relief and remanded the case so that the trial court could

issue findings of fact and conclusions of law.

Case No. 24 MA 0075 –4–

{¶8} On July 1, 2024, Appellant filed an "omnibus motion" in which he again

requested leave to amend his petition for postconviction relief, which had been filed nine

years earlier. The state opposed the motion. On July 17, 2024, the trial court issued

findings of fact and conclusions of law pertaining to the court’s 2015 denial and once

again denied the petition. The trial court noted that it had "now considered the entire

record, Defendant's petition and all of his subsequent filings, and the State's responses."

(7/17/24 J.E., p. 4.) The trial court reviewed the issue alleged in the petition, which was

that Appellant's counsel was ineffective by subjecting him to a polygraph test. The court

denied Appellant’s petition because he failed to support his claim with evidence de hors

the record, and because his most recent filings did not sufficiently allege or advance the

claim of ineffective assistance of counsel. The court also denied Appellant’s requests for

leave to amend the petition. Appellant filed a timely pro se appeal on August 19, 2024.

Applicable Law

{¶9} Appellant is not directly challenging the trial court's denial of his 2015

petition for postconviction relief. In this appeal he advances two procedural arguments:

the first deals with the timing of the trial court's April 10, 2015 ruling on the state's motion

to dismiss, filed on April 7, 2015; and the second challenges the trial court's decision to

overrule his two motions to amend the petition. Again, Appellant’s petition was filed on

March 23, 2015. The first motion to amend was filed on March 1, 2023. The second was

filed as part of Appellant's omnibus motion on July 1, 2024.

R.C. 2953.21(A)(1)(a) permits a petitioner to collaterally attack his or

her judgment of conviction on the grounds that “there was such a denial or

infringement of the person's rights as to render the judgment void or

Case No. 24 MA 0075 –5–

voidable under the Ohio Constitution or the Constitution of the United

States.” With the exception of an appeal, a petition for postconviction relief

is `the exclusive remedy by which a person may bring a collateral challenge

to the validity of a conviction or sentence in a criminal case. R.C.

2953.21(K).

State v. Parker, 2019-Ohio-3848, ¶ 15.

{¶10} "[A] postconviction proceeding is not an appeal of a criminal conviction but,

rather, a collateral civil attack on the judgment." State v. Calhoun, 86 Ohio St.3d 279,

281 (1999). "[A] petitioner receives no more rights than those granted by the statute." Id.

Although the civil and local rules generally apply to postconviction

proceedings, dismissals rendered under R.C. 2953.21 differ from those

made under Civ.R. 12(B). The statutory scheme for postconviction relief

requires the court to look beyond the petition and response, and it

specifically permits the prosecution to respond by motion rather than by

answer. Because postconviction proceedings are created and governed by

statute, specific requirements set out by statute take priority where they

conflict with the civil or local rules. (Internal citations omitted)

State v. Mitchell, 2006-Ohio-1601, ¶ 5 (2d Dist.); see R.C. 2953.21(E).

{¶11} "R.C. 2953.21, Ohio's postconviction relief statute, does not specify that the

petitioner be given an opportunity to reply to any motion filed on behalf of the respondent."

State v. Caldero, 2004-Ohio-2337, ¶ 5 (8th Dist.). "A trial court has the discretion to

dismiss a petition for post-conviction relief without any responses from the State or the

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Petitioner, if 'the petition fails to set forth any substantive ground upon which relief can be

granted.'" State v. Peterson, 2009-Ohio-1504, ¶ 10 (7th Dist.), quoting In re J.B., 2006-

Ohio-2715 (12th Dist.). "[I]f the petition is meritless on its face, the trial court may dismiss

it without reviewing the record, and without waiting for a response from either the

petitioner or the state." State v. Haschenburger, 2009-Ohio-6527, ¶ 33 (7th Dist.).

{¶12} "Pursuant to R.C. 2953.21(G)(3), one may amend a postconviction petition

after the opposing party has filed a response only if granted leave to do so by the trial

court." State v. Hart, 2021-Ohio-767, ¶ 23 (6th Dist.). "Trial courts have discretion to

grant or deny leave to amend a postconviction-relief petition." State v. Clark, 2021-Ohio-

2771, ¶ 28 (8th Dist.). Absent an abuse of that discretion, an appellate court will not

overturn the trial court's decision overruling a motion to amend a petition for

postconviction relief. State v. Barrett, 2004-Ohio-725, ¶ 7 (9th Dist.) "Abuse of discretion

means an error in judgment involving a decision that is unreasonable based upon the

record; that the appellate court merely may have reached a different result is not enough."

State v. Dixon, 2013-Ohio-2951, ¶ 21 (7th Dist.).

{¶13} The Ninth District Court of Appeals has held that a trial court does not

commit an abuse of discretion in overruling a motion for leave to amend a petition for

postconviction relief filed three months after the state has filed its motion to dismiss.

Barrett at ¶ 8. The Second District Court of Appeals has held that a trial court does not

abuse its discretion in denying a motion for leave to amend a petition for postconviction

relief that was filed five days after its decision had been rendered. State v. Bays, 2003-

Ohio-3234, ¶ 24 (2d Dist.).

Case No. 24 MA 0075 –7–

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRED IN NOT ALLOWING DEFENDANT TO

PROPERLY RESPOND TO THE STATE'S MOTION TO DISMISS.

{¶14} Appellant contends the trial court erred nine years ago by ruling on the

state's motion to dismiss his petition for postconviction relief before he had a chance to

respond to the motion. Judgment was entered on April 10, 2015, three days after the

state filed its motion to dismiss. Appellant filed a response to the motion on April 16,

2015. Appellant claims that he was entitled to have time to respond under the due

process clause of the Fourteenth Amendment of the U.S. Constitution.

{¶15} A petition for postconviction relief is a creature of statute, and both the

substantive and procedural aspects of such relief are governed by the postconviction

relief statute, R.C. 2953.21. Calhoun at 281. The statute allows the state to respond to

the petition by motion, but does not provide for a reply or rebuttal response from the

petitioner. Mitchell at ¶ 5; R.C. 2953.21(E). It is also true a petition may be dismissed by

the trial court prior to any response from the state, if the petition has no merit on its face.

Peterson at ¶ 10.

{¶16} Appellant cites three cases intended to support his argument, but they are

inapposite to the issue in this appeal. State v. Pickens, 2016-Ohio-5257 (1st Dist.), State

v. Roberts, 2006-Ohio-3665, and State v. Jenkins, 15 Ohio St.3d 164 (1984), all deal with

error regarding ex parte communications between the prosecutor and the trial judge.

Appellant does not allege, or provide evidence, that there was any such ex parte

communication in this matter, and these cases are wholly inapplicable.

Case No. 24 MA 0075 –8–

{¶17} The trial court entered its final judgment three days after the prosecutor filed

a motion to dismiss the petition for postconviction relief. This was permitted under R.C.

2953.21. Appellant has not shown how the timing of the judgment, or his inability to file

a further responsive memorandum, constitutes error.

{¶18} Appellee points out that the court actually did consider Appellant's April 16,

2015 response to the state's motion to dismiss. In its July 17, 2024 judgment entry the

court states that it considered the entire record, including all of Appellant's filings, prior to

entering judgment. Therefore, even if Appellant could advance a valid argument, it would

be moot, since the record shows that the court did consider Appellant’s reply to the state’s

motion to dismiss.

{¶19} Appellant's first assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 2

AMEND THE POST-CONVICTION PETITION.

{¶20} Appellant contends that the trial court should have granted one or both

motions to amend his petition for postconviction relief. Appellant argues that the trial court

was required to allow him to amend the petition pursuant to Civ.R. 15(A), R.C.

2953.21(H), and Crim.R. 35(C).

{¶21} R.C. 2953.21(H) does not deal with the issue of amending a postconviction

relief petition and is incorrectly cited by Appellant. R.C. 2953.21(G)(2), does address

amendment, but allows a petitioner to amend the petition only one of two ways: "at any

time before the answer or motion is filed, the petitioner may amend the petition with or

Case No. 24 MA 0075 –9–

without leave or prejudice to the proceedings." Otherwise, the petitioner may only amend

if the court grants leave to amend. R.C. 2953.21(G)(3). The state filed its motion to

dismiss on April 7, 2015. Any motion to amend filed after that date was only permissible

by leave of the court. Hart at ¶ 23. The decision to grant or deny such leave is reviewed

on appeal only for abuse of discretion. Barrett at ¶ 7.

{¶22} The timing of the request to file a motion to amend is one factor a trial court

is to consider in these circumstances. Periods of time as short as a few days or a few

months following response have been upheld as too long. Barrett at ¶ 8; Bays at ¶ 24.

In the instant case, the motions to amend were filed eight and nine years after the motion

to dismiss was filed. This fact alone supports the conclusion that the trial court did not

abuse its discretion.

{¶23} Appellee raises a further reason in support of the trial court’s decision.

Appellee argues that there is no abuse of discretion in denying a motion to amend when

the motion is filed after final judgment has already been issued. Final judgment on

Appellant’s petition was rendered on April 10, 2015. The motions to amend were filed

several years later. Appellant claims the April 10, 2015 judgment entry was not a final

appealable order because no findings of fact and conclusions of law were issued.

Appellant relies on a case based on precedent that has since been reversed. Appellant

cites State v. Everson, 2016-Ohio-3419 (7th Dist.) for the proposition that a judgment

dismissing a petition for postconviction relief that does not contain findings of fact and

conclusions of law is not a final appealable order. Everson was based on the holding of

State ex rel. Ferrell v. Clark, 13 Ohio St.3d 3 (1984), which has since been overruled by

State ex rel. Penland v. Dinkelacker, 2020-Ohio-3774. Dinkelacker held that an order

Case No. 24 MA 0075 – 10 –

granting or denying a petition for postconviction relief is final and appealable, and any

error regarding whether findings of fact and conclusions of law were issued can be

corrected in the direct appeal of that judgment. Id. at ¶ 3. Hence, as earlier discussed,

Appellant's motions to amend were filed eight and nine years after a valid, final judgment

was ordered in this case, and are barred for this reason, as well.

{¶24} The trial court did not abuse its discretion in denying two motions to amend

the petition for postconviction relief when those motions were filed several years after the

motion to dismiss was filed, and after final judgment had been rendered. Therefore,

Appellant's second assignment of error is overruled.

Conclusion

{¶25} Appellant contends the trial court committed two procedural errors

regarding his 2015 petition for postconviction relief. He claims the trial court should have

given him time to file a response to the state's motion to dismiss, but the postconviction

relief statute does not provide for response, and the trial court had the authority to rule on

the petition at any time, sua sponte. Appellant also believes he should have been

permitted to amend his petition several years after the petition was filed and final judgment

entered. The trial court did not abuse its discretion in denying these untimely motions.

Appellant's two assignments of error are overruled, and the judgment of the trial court is

affirmed.

Hanni, J. concurs.

Dickey, J. concurs.

Case No. 24 MA 0075 [Cite as State v. Reese, 2025-Ohio-337.]

For the reasons stated in the Opinion rendered herein, Appellant’s assignments of

error are overruled and it is the final judgment and order of this Court that the judgment

of the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs waived.

A certified copy of this opinion and judgment entry shall constitute the mandate in

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a

certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.