[Cite as State v. Bender,
2021-Ohio-1931.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
STATE OF OHIO,
CASE NO. 14-21-01
PLAINTIFF-APPELLEE,
v.
JASON G. BENDER, OPINION
DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court
Trial Court No. 18-CR-0168
Judgment Affirmed
Date of Decision: June 7, 2021
APPEARANCES:
Jason G. Bender Appellant
Samantha Hobbs for Appellee
Case No. 14-21-01
WILLAMOWSKI, P.J.
{¶1} Although originally placed on our accelerated calendar, we have elected
pursuant to Loc.R. 12(5) to issue a full opinion in lieu of a summary judgment entry.
Defendant-appellant Jason G. Bender (“Bender”) appeals the judgment of the Union
County Court of Common Pleas, alleging that the trial court erred in dismissing his
petition for post-conviction relief. For the reasons set forth below, the judgment of
the trial court is affirmed.
Facts and Procedural History
{¶2} On July 13, 2018, Bender was indicted on one count of felonious assault
in violation of R.C. 2903.11(A)(1), a felony of the second degree; one count of
kidnapping in violation of R.C. 2905.01(A)(3), a felony of the first degree; one
count of rape in violation of R.C. 2907.02(A)(2), a felony of the first degree; and
one count of having weapon while under disability in violation of R.C.
2923.13(A)(2), a felony of the third degree. Doc. 1. After his trial, the jury returned
verdicts of guilty on all of the charges against Bender on April 24, 2019. Doc. 78-
81.
{¶3} On May 29, 2019, the trial court sentenced Bender. Doc. 87. Bender
then filed his notice of appeal on June 18, 2019. Doc. 93. On September 9, 2019,
the trial transcript was filed for his direct appeal. Doc. 114. On his direct appeal,
he raised three assignments of error, including an ineffective assistance of counsel
claim. State v. Bender, 3d Dist. Union No. 14-19-22, 2020-Ohio-722, ¶ 6, 19. On
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March 2, 2020, this Court issued a decision that overruled his assignments of error
and affirmed the judgment of the trial court. Id. at ¶ 37.
{¶4} On December 1, 2020, Bender filed a petition for post-conviction relief
pro se. Doc. 116. In this petition, Bender raised an ineffective assistance of counsel
claim and a prosecutorial misconduct claim. Doc. 116. On January 20, 2021, the
trial court dismissed Bender’s petition without a hearing because this petition was
not timely filed. Doc. 124. Bender filed his notice of appeal on February 1, 2021.
Doc. 126. On appeal, Bender raises the following assignments of error:
First Assignment of Error
Trial Court erred when it determined that Appellant’s Post
Conviction Relief Petition was barred by the statute of limitations.
Second Assignment of Error
Trial Court erred by stating that Appellant’s Post-Conviction
grounds for relief were addressed during direct appeal.
Third Assignment of Error
The denial of Appellant’s petition was principally grounded on
the basis of judicial bias, and not the facts within the evidence
submitted to support the petition.
First Assignment of Error
{¶5} Bender asserts that his petition for post-conviction relief was timely
filed because the Ohio Supreme Court’s order tolling time requirements in response
to the COVID-19 pandemic extended the applicable deadline.
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Case No. 14-21-01
Legal Standard
{¶6} “R.C. 2953.21 governs petitions for post-conviction relief.” State v.
Wine, 3d Dist. Auglaize No. 2-15-07, 2015-Ohio-4726, ¶ 10. “Postconviction
review is not a constitutional right, but is a collateral civil attack on a judgment that
is governed solely by R.C. 2953.21.” State v. Keith,
176 Ohio App.3d 260, 2008-
Ohio-741,
891 N.E.2d 1191, ¶ 24 (3d Dist.). R.C. 2953.21(A)(1)(a)(i) states that a
petition for post-conviction relief may be filed by
[a]ny person who has been convicted of a criminal offense or
adjudicated a delinquent child 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[.]
R.C. 2953.21(A)(1)(a)(i). In general, to be timely filed, a petition for post-
conviction relief must be filed with the trial court “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 ….” R.C. 2953.21(A)(2)(a).
{¶7} “A trial court lacks jurisdiction to entertain an untimely or successive
petition for postconviction relief unless the petitioner establishes that one of the
exceptions in R.C. 2953.23(A) applies.” State v. Cunningham, 2016-Ohio-3106,
65
N.E.3d 307, ¶ 13 (3d Dist.), quoting State v. Chavis, 10th Dist. Franklin No. 15AP-
557,
2015-Ohio-5549, ¶ 14. Under R.C. 2953.23(A)(1), a trial court may consider
a petition for post-conviction that was filed after timeframe set forth in R.C.
2953.21(A) if both of the following criterion apply:
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[1] 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 or state right that
applies retroactively to persons in the petitioner’s situation, and
the petition asserts a claim based on that right.
[2] 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.
R.C. 2953.23(A).
Thus, unless the defendant alleges a new federal or state right has
been recognized, the defendant must prove (1) that he was
unavoidably prevented from discovery of facts upon which his
successive petition for postconviction relief rests and (2) that he
would not have been convicted at trial by a reasonable factfinder
but for the constitutional error.
State v. Workman, 3d Dist. Auglaize No. 2-17-12, 2017-Ohio-7364, ¶ 18, citing
R.C. 2953.23(A)(1). A petitioner is not entitled to an evidentiary hearing simply
because he or she filed a petition for post-conviction relief. State v. Lewis, 3d Dist.
Logan No. 8-19-08,
2019-Ohio-3031, ¶ 11.
{¶8} On appeal, “[w]e review the trial court’s dismissal of a post-conviction
petition without a hearing for abuse of discretion.” State v. Liles, 3d Dist. Allen No.
1-16-33, 2017-Ohio-240, ¶ 10, quoting State v. Jeffers, 10th Dist. Franklin No.
10AP-1112,
2011-Ohio-3555, ¶ 23. “An abuse of discretion is not merely an error
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of judgment.” State v. Sullivan, 2017-Ohio-8937,
102 N.E.3d 86, ¶ 20 (3d Dist.).
“Rather, an abuse of discretion is present where the trial court’s decision was
arbitrary, unreasonable, or capricious.” State v. Kleman, 3d Dist. Hardin No. 6-19-
01,
2019-Ohio-4404, ¶ 18, quoting State v. Howton, 3d Dist. Allen No. 1-16-35,
2017-Ohio-4349, ¶ 23.
Legal Analysis
{¶9} In this case, the trial transcript was filed on September 9, 2019 for
Bender’s direct appeal. Doc. 114. Bender filed his petition for post-conviction
relief on December 1, 2020. Doc. 116. Thus, Bender’s petition for post-conviction
relief was filed more than three hundred and sixty-five days after the trial transcript
was filed for his direct appeal. However, Bender asserts that his petition was, in
fact, timely filed when legislation that tolled statutory time requirements in response
to the COVID-19 pandemic is taken into account.
[O]n March 27, 2020, the Governor of Ohio signed into law
Am.Sub.H.B. No. 197, which immediately tolled, retroactive to
March 9, 2020, all statutes of limitation, time limitations, and
deadlines in the Ohio Revised Code and the Ohio Administrative
Code until the expiration of Executive Order 2020-01D or July 30,
2020, whichever is sooner[.]
In re Tolling of Time Requirements Imposed by Rules Promulgated by Supreme
Court & Use of Technology, 158 Ohio St.3d 1447,
2020-Ohio-1166,
141 N.E.3d
974, 974-975. The Supreme Court subsequently issued guidance for applying this
tolling legislation that explained the following:
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Case No. 14-21-01
The legislation and Supreme Court order toll only time
requirements set to expire during the emergency period. Time
requirements that are set to expire after the emergency period are
not tolled.
(Emphasis sic.) The Supreme Court of Ohio, Assessing Impact of Tolling
Legislation and Supreme Court Order upon Specific Time Requirements
https://www.supremecourt.ohio.gov/coronavirus/resources/tollingAnalysis040220.
pdf (accessed May 25, 2021).
{¶10} In this case, the deadline for timely filing a petition for post-conviction
relief was September 9, 2020, which did not fall in between March 9, 2020 and July
30, 2020. Doc. 114. Since the deadline fell after the emergency period ended on
July 30, 2020, the law tolling statutory time requirements does not apply in this
situation. Thus, Bender had three hundred and sixty-five days from the date on
which the transcripts were filed for his direct appeal to timely file his motion for
post-conviction relief. Since he did not file his petition within this timeframe, his
petition was not timely filed.
{¶11} Finally, in his petition for post-conviction relief, Bender does not
establish that one of the exceptions listed in R.C. 2953.23(A) is applicable in this
case. For these reasons, the trial court did not err in dismissing his petition for post-
conviction relief. As such, Bender’s first assignment of error is overruled.
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Second Assignment of Error
{¶12} Bender argues that the trial court erred in determining that issues
raised in his petition for post-conviction relief could have been raised in his direct
appeal.
Legal Standard
{¶13} “Although a defendant may challenge his conviction and sentence by
either a direct appeal or a petition for postconviction relief, any claims raised in a
postconviction relief petition will be barred by res judicata where the claim was or
could have been raised on direct appeal.” State v. Schwieterman, 3d Dist. Mercer
No. 10-09-12, 2010-Ohio-102, ¶ 23.
Under the doctrine of res judicata, a final judgment of conviction
bars a convicted defendant who was represented by counsel from
raising and litigating in any proceeding except an appeal from
that judgment, any defense or any claimed lack of due process
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. Perry, 10 Ohio St.2d 175,
39 O.O.2d 189
226 N.E.2d 104 (1967), paragraph
nine of the syllabus. In other words, “[a] postconviction relief proceeding is not to
be utilized as an alternative to or substitute for a direct appeal.” State v. Lee, 6th
Dist. Lucas No. L-08-1207,
2008-Ohio-6177, ¶ 5.
However, an ineffective assistance of counsel claim in a petition
for postconviction relief is only barred by res judicata where the
defendant was represented by new counsel on direct appeal, and
where appellate counsel was in no way enjoined from asserting
ineffective assistance of trial counsel.
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Schwieterman, at ¶ 23, citing State v. Bradley, 3d Dist. Union No. 14-08-27, 2008-
Ohio-6071, ¶ 8.
Legal Analysis
{¶14} In his petition for post-conviction relief, Bender raises an ineffective
assistance of counsel claim and a prosecutorial misconduct claim. In support of
these claims, Bender points to a video-recorded interview that the State disclosed to
the Defense during discovery. Doc. 116. In its brief in this appeal, the State
vigorously contests the merits of the arguments that Bender bases on this recorded
interview. But we need not reach the merits of these arguments since both of these
claims could have been raised on direct appeal.
{¶15} Because the arguments in his petition for post-conviction relief rest on
evidence that the Defense had before trial, these arguments could have been raised
at his trial and on direct appeal. Since these arguments were available to him at the
time of his direct appeal, the claims raised in his petition for post-conviction relief
are subject to res judicata. Further, as to his ineffective assistance of counsel claim,
we note that Bender was represented by different attorneys during his trial and on
his direct appeal. Doc. 107. See Schwieterman, supra, at ¶ 24. Bender even raised
an unsuccessful ineffective assistance of counsel claim in his prior direct appeal.
Bender, supra, at ¶ 22-25.
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{¶16} In conclusion, Bender could have raised both of the claims asserted
his petition for post-conviction relief during his direct appeal. Thus, even if his
petition for post-conviction relief had been timely filed, these claims would still
have been barred under the doctrine of res judicata. For these reasons, Bender’s
second assignment of error is overruled.
Third Assignment of Error
{¶17} Bender asserts that his petition for post-conviction relief was denied
because of judicial bias.
Legal Standard
{¶18} R.C. 2701.03(A) addresses the issue of judicial bias for a judge of the
court of common pleas and reads as follows:
If a judge of the court of common pleas allegedly is interested in
a proceeding pending before the court, allegedly is related to or
has a bias or prejudice for or against a party to a proceeding
pending before the court or a party’s counsel, or allegedly
otherwise is disqualified to preside in a proceeding pending before
the court, any party to the proceeding or the party’s counsel may
file an affidavit of disqualification with the clerk of the supreme
court in accordance with division (B) of this section.
R.C. 2701.03(A). Thus, “[t]he determination of a claim that a common pleas judge
is biased or prejudiced is within the exclusive jurisdiction of the Chief Justice of the
Supreme Court of Ohio, or h[er] designee.” (Emphasis sic.) State v. Holdcroft, 3d
Dist. Wyandot No. 16-10-04, 2010-Ohio-6262, ¶ 25.
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{¶19} However, a due process issue may still exist because a “criminal trial
before a biased judge is fundamentally unfair ….” State v. Wieser, 3d Dist. Allen
No. 1-18-15, 2018-Ohio-3619, ¶ 23.
Judicial bias has been described by the Supreme Court of Ohio as
‘a hostile feeling or spirit of ill will or undue friendship or
favoritism toward one of the litigants or his attorney, with the
formation of a fixed anticipatory judgment on the part of the
judge, as contradistinguished from an open state of mind which
will be governed by the law and the facts.’
Wieser at ¶ 23, quoting State ex rel. Pratt v. Weygandt, 164 Ohio St. 463,
58 O.O.
315,
132 N.E.2d 191 (1956), paragraph four of the syllabus.
Legal Analysis
{¶20} In this case, Bender did not avail himself of the statutory process to
address allegations of judicial bias as set forth in R.C. 2701.03(A). Further, Bender
has not raised any evidence that suggests his due process rights were violated. See
State v. Dendinger, 3d Dist. Seneca No. 13-18-38, 2019-Ohio-2158, ¶ 23; State v.
Corchado,
2017-Ohio-4390,
93 N.E.3d 150 (7th Dist.). In this case, the basis for
Bender’s claim of judicial bias is only that his petition was dismissed. See State v.
Smith, 10th Dist. Franklin No. 18AP-525,
2019-Ohio-5199, ¶ 26, quoting Liteky v.
United States,
510 U.S. 540, 555 (1994) (holding that “judicial rulings alone almost
never constitute a valid basis for a bias or partiality motion”). For these reasons, we
conclude that Bender’s assertion of judicial bias lacks merit. As such, his third
assignment of error is overruled.
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Conclusion
{¶21} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgment of the Union County Court of Common Pleas is
affirmed.
Judgment Affirmed
MILLER and SHAW, J.J., concur.
/hls
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