State v. Tidwell

2021 Ohio 1286

• Court: Ohio Court of Appeals
• Decided: March 31, 2021
• Docket: 20 JE 0003
• Status: Published

Opinion

[Cite as State v. Tidwell, 2021-Ohio-1286.]

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

STATE OF OHIO,

Plaintiff-Appellee,

v.

JOHN B. TIDWELL,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY Case No. 20 JE 0003

Criminal Appeal from the Court of Common Pleas of Jefferson County, Ohio Case No. 80-CR-4

BEFORE: Cheryl L. Waite, Gene Donofrio, David A. D’Apolito, Judges.

JUDGMENT: Affirmed.

Atty. Jane M. Hanlin, Jefferson County Prosecutor, Jefferson County Justice Center, 16001 State Route 7, Steubenville, Ohio 43952, for Plaintiff-Appellee. No Brief Filed.

Mr. John B. Tidwell, Pro se, #A-760-721, 2240 Hubbard Road, Youngstown, Ohio 44505, for Defendant-Appellant –2–

Dated: March 31, 2021

WAITE, J.

{¶1} Appellant John B. Tidwell appeals a January 13, 2020 Jefferson County

Court of Common Pleas judgment entry which denied his postconviction petition without

a hearing. Appellant argues that he was convicted of and sentenced for murder in the

second degree, pursuant to a code section that did not exist at the time of his conviction

and sentence. As such, he argues that his conviction should be reduced from murder in

the second degree to voluntary manslaughter. Appellant also argues that the trial court

improperly denied his petition without either holding an evidentiary hearing or filing its

findings of facts and conclusions of law. For the reasons provided, Appellant’s arguments

are without merit and the judgment of the trial court is affirmed.

Factual and Procedural History

{¶2} In May of 1977, Appellant was indicted in Trumbull County on four counts

of murder, felonies of the first degree in violation of R.C. 2901.01, and one count of

burglary of an inhabited dwelling, a violation of R.C. 2907.09. The case was transferred

to Jefferson County after the trial court granted defense counsel’s motion for change of

venue. During the pendency of the case, Appellant was convicted of a homicide offense

in the state of California and sentenced in California to twenty-five years to life in prison.

It appears Appellant unsuccessfully appealed that conviction.

{¶3} On April 25, 1980, Appellant pleaded no contest in the instant case to one

count of murder in the second degree, a violation of R.C. 2901.05. The remaining charges

were dismissed. On the same date, Appellant was sentenced to fifteen years to life in

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prison, to be served “while he serves his Life sentence” in California. (4/25/80 J.E.)

Although the exact date is unclear, Appellant was released on parole in California and

was transferred to Ohio to begin serving his sentence in the instant case.

{¶4} On August 19, 2019, the Ohio Parole Board denied Appellant parole based

on the seriousness of his crimes and the fact that he had only served six months of his

Ohio prison sentence. Thus, it appears Appellant was transferred from California to Ohio

around February of 2019.

{¶5} On October 8, 2019, Appellant filed a series of motions in the Jefferson

County Court of Common Pleas. His filing included a motion for transcripts and records,

a motion for stay and bond, and a motion seeking post-conviction relief. On November

4, 2019, Appellant filed a motion for summary judgment. On January 13, 2020, the trial

court overruled all of Appellant’s motions without a hearing. It is from this entry that

Appellant timely appeals.

Service

{¶6} Appellant’s notice of appeal was properly served on the Jefferson County

Prosecutor. However, the certificate of service attached to his brief states that it was

served on “the Attorney General Office, 100 W. Federal Plaza., East Youngstown, OH,

44503.” Despite the apparent service error, a review of the Jefferson County online

docket shows that Appellant’s brief in this matter was placed in the prosecutor’s tray on

March 2, 2020. The state has not filed a brief nor has it filed a motion to dismiss the

appeal for failure of service.

Postconviction Petition

Case No. 20 JE 0003 –4–

{¶7} In order to successfully assert a postconviction petition, “the petitioner must

demonstrate a denial or infringement of his rights in the proceedings resulting in his

conviction sufficient to render the conviction void or voidable under the Ohio or United

States Constitutions.” State v. Agee, 7th Dist. Mahoning No. 14 MA 0094, 2016-Ohio-

7183, ¶ 9, citing R.C. 2953.21(A)(1).

{¶8} The petitioner bears the burden of demonstrating “substantive grounds for

relief” through the record or any supporting affidavits. Agee at ¶ 9. However, as a

postconviction petition does not provide a forum to relitigate issues that could have been

raised on direct appeal, res judicata bars many claims. Agee at ¶ 10.

Timeliness

{¶9} R.C. 2953.21(A)(2) requires a petitioner to file a petition within one year

after the trial transcripts are filed in the court of appeals. In relevant part, R.C.

2953.21(A)(2) provides that a postconviction petition:

[S]hall 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 no appeal is taken, except as

otherwise provided in section 2953.23 of the Revised Code, the petition

shall be filed no later than three hundred sixty-five days after the expiration

of the time for filing the appeal.

{¶10} Ohio law provides a two-part exception to this rule if the petitioner can

demonstrate that he meets the criteria found in R.C. 2953.23(A)(1)(a)-(b). Pursuant to

R.C. 2953.23(A)(1)(a), the petitioner must either show that he: “was unavoidably

Case No. 20 JE 0003 –5–

prevented from discovery of the facts upon which [he] must rely to present the claim for

relief, or, * * * the United States Supreme Court recognized a new federal or state right

that applies retroactively to persons in the petitioner's situation, and the petition asserts a

claim based on that right.”

{¶11} Appellant was sentenced on April 25, 1980. We glean from the Jefferson

County online docket that Appellant attempted to file a pro se notice of appeal in State v.

Tidwell, 03 JE 0003. From the limited docket, it appears this appeal was dismissed as

untimely on February 4, 2003. No opinion in the matter is unavailable. Regardless,

Appellant’s time to file an appeal expired thirty days after his April 25, 1980 sentencing

entry was filed.

{¶12} Appellant argues that the date of his transfer from incarceration in California

to his incarceration in Ohio should substitute for the filing of trial transcripts in order to

trigger his postconviction filing timeline to begin to run. Appellant argues that his

California incarceration somehow prevented him from filing a direct appeal in Ohio.

Appellant has provided no legal authority to support his argument that incarceration in

California serves as a tolling event for purposes of R.C. 2953.21. Appellant also provides

no legal support for his argument that his failure to timely file a direct appeal tolls the

postconviction petition timeline. In fact, R.C. 2953.21(A)(2) states that if no appeal is

taken, “the petition shall be filed no later than three hundred sixty-five days after the

expiration of the time for filing the appeal.” Here, Appellant filed his petition approximately

forty years after his time to file a direct appeal expired.

{¶13} Thus, Appellant’s petition is untimely.

ASSIGNMENT OF ERROR NO. 1

Case No. 20 JE 0003 –6–

THE COURT OF COMMON PLEAS ERRED BY OVERRULING WITHOUT

A HEARING APPELLANT'S MOTION FOR POST CONVICTION RELIEF

ON THE CONSTITUTIONALITY OF A [SIC] UNAUTHOROIZED

SENTENCE IN VIOLATION OF THE U.S. CONSTITUTION FIFTH, SIXTH,

EIGHTH AND FOURTEENTH AMENDMENTS AND OHIO

CONSTITUTION, ARTICLE 1, SECTIONS 2, 9, 10, AND 16.

{¶14} Appellant argues that he was convicted of and sentenced for murder in the

second degree pursuant to R.C. 2901.05, however, that code section had been

reassigned to another offense at the time of his sentencing in 1980. Because he was

incarcerated out-of-state, he argues that he was prevented from learning of the error in

his sentencing entry and was unable to file a direct appeal.

{¶15} The doctrine of res judicata “bars an individual from raising a defense or

claiming a lack of due process that was or could have been raised at trial or on direct

appeal.” State v. Croom, 7th Dist. Mahoning No. 13 MA 98, 2014-Ohio-5635, ¶ 7, citing

State v. Ishmail, 67 Ohio St.2d 16, 18, 423 N.E.2d 1068 (1981). However, where “an

alleged constitutional error is supported by evidence that is de hors the record, res

judicata will not bar the claim because it would have been impossible to fully litigate the

claim on direct appeal.” State v. Green, 7th Dist. Mahoning No. 02 CA 35, 2003-Ohio-

5142, ¶ 21, citing State v. Smith, 125 Ohio App.3d 342, 348, 708 N.E.2d 739 (12th

Dist.1997). To overcome the res judicata bar, the petitioner must demonstrate that the

claim could not have been appealed based on the original trial record. Agee at ¶ 11,

citing State v. Combs, 100 Ohio App.3d 90, 97, 652 N.E.2d 205 (1st Dist.1994).

Case No. 20 JE 0003 –7–

{¶16} Pursuant to the Ohio Supreme Court’s recent decision in State v.

Henderson, -- Ohio St.3d --, 2020-Ohio-4784, -- N.E.3d --, “[a] sentence is void only if the

sentencing court lacks jurisdiction over the subject matter of the case or personal

jurisdiction over the accused.” Id. at ¶ 27. Here, there is no argument and the record

does not reflect that the trial court lacked subject matter or personal jurisdiction over

Appellant. Thus, Appellant’s sentence is voidable rather than void and res judicata bars

Appellant’s claims, as they could have been raised on direct appeal.

{¶17} Appellant argues that he could not have raised this issue in a direct appeal

because, due to his incarceration in California, he was unaware that the code section had

been reclassified. However, the sentencing entry that references the code section at

issue was filed on April 25, 1980. There is no evidence, and Appellant does not claim,

that he did not receive a copy of the sentencing entry. Thus, he was put on notice of the

exact code section that was listed in the April 25, 1980 entry at the time it was filed.

{¶18} Even if Appellant’s claims were not barred by res judicata, his arguments

are without merit. Appellant’s plea agreement reflects that he pleaded guilty to second

degree murder, a violation of R.C. 2901.05. Appellant correctly states that R.C. 2901.05

was reclassified as part of the new criminal code on January 1, 1974. State v. Kinkopf,

8th Dist. Cuyahoga No. 33991, 1975 WL 182839, *3.

{¶19} This issue had been addressed in three Ohio Supreme Court cases. See

State ex rel. Ridenour v. O’Connell, 147 Ohio St.3d 351, 2016-Ohio-7368, 65 N.E.3d 742

(“Ridenour I”); Ridenour v. Shoop, 156 Ohio St.3d 412, 2019-Ohio-1313, 128 N.E.3d 197

(“Ridenour II”); State v. Craig, 110 Ohio St.3d 306, 2006-Ohio-4571, 853 N.E.2d 621.

Case No. 20 JE 0003 –8–

{¶20} In Ridenour I and II, the defendant was indicted for conduct that occurred in

1972. In 1974, he pleaded guilty to second-degree murder. In both cases, he argued

that second-degree murder did not exist at the time he pleaded guilty and was sentenced

for the offense. Id. at ¶ 2. As a remedy, he sought to be resentenced to manslaughter.

In Ridenour I, he filed a writ, framing his argument as a sentencing error. The Ridenour

I Court denied the writ, holding that that sentencing errors are not remedied by means of

a writ but on direct appeal. Id. at ¶ 3.

{¶21} In Ridenour II, he raised the same arguments, this time framed as a

statutory interpretation argument. Id. at ¶ 8. The Court again rejected his argument,

holding that “[a] defendant is subject to the sentencing scheme in effect at the time of his

offense.” Id. at ¶ 6, citing Craig, supra, at ¶ 121-122. Because the law in effect at the

time he committed his offense provided for a second-degree murder charge, the

defendant was subject to prosecution for second-degree murder.

{¶22} In contrast, the Supreme Court reversed the conviction of a defendant who

was convicted of kidnapping and rape for offenses committed in February and March of

1996. Craig, supra, at ¶ 121. In reversing the convictions, the Craig Court explained that

the rape and kidnapping charges were based on law that did not become effective until

July 1, 1996, several months after the relevant conduct occurred. Id.

{¶23} According to Appellant’s indictment, the offense in this matter occurred on

July 7, 1973. Thus, the offense predates the statutory change of murder in the second

degree which occurred on January 1, 1974. In accordance with the established law of

Ohio, Appellant was subject to conviction and sentencing in accordance with the law in

effect at the time he committed his crime, which in this case was second-degree murder.

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{¶24} Accordingly, Appellant’s first assignment of error is without merit and is

overruled.

ASSIGNMENT OF ERROR NO. 2

A HEARING APPELLANT'S MOTION FOR POSTCONVICTION RELIEF.

{¶25} Appellant argues that the trial court erroneously denied his request for an

evidentiary hearing.

{¶26} A petitioner is not automatically entitled to a hearing. State v. Cole, 2 Ohio

St.3d 112, 113, 443 N.E.2d 169 (1982). The Ohio Supreme Court has held “res judicata

to be a proper basis upon which to dismiss without hearing an R.C. 2953.21 petition.”

Cole, supra, at 113, citing State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967); State

v. Duling, 21 Ohio St.2d 13, 254 N.E.2d 670 (1970). Although the basis of the trial court’s

decision to deny the petition is unclear from the court’s one-line judgment entry, it is

readily apparent that Appellant’s petition is untimely and barred by res judicata. These

negate the need for a hearing.

{¶27} As such, Appellant’s second assignment of error is without merit and is

Conclusion

{¶28} Appellant argues that he was convicted and sentenced pursuant to a code

section that did not exist at the time of sentencing. Appellant also argues that the trial

court erroneously denied his petition without either holding an evidentiary hearing or by

Case No. 20 JE 0003 – 10 –

filing findings of facts and conclusions of law. For the reasons provided, Appellant’s

arguments are without merit and the judgment of the trial court is affirmed.

Donofrio, P.J., concurs.

D’Apolito, J., concurs.

Case No. 20 JE 0003 [Cite as State v. Tidwell, 2021-Ohio-1286.]

For the reasons stated in the Opinion rendered herein, the 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 Jefferson 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.