State v. Reed
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[Cite as State v. Reed, 2003-Ohio-4848.] IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO STATE OF OHIO : Plaintiff-Appellee vs. : : C.A. CASE NO. 03-CA-0004 T.C. CASE NO. 78-CR-86 JEFF REED : (Criminal Appeal from Common Pleas Court) Defendant-Appellant : . . . . . . . . . O P I N I O N Rendered on the 12th day of September, 2003. . . . . . . . . . Stephen A. Schumaker, Pros. Attorney; Andrew P. Pickering, Asst. Pros. Attorney, 50 E. Columbia Street, Springfield, Ohio 45502, Atty. Reg. No. 0068770 Attorney for Plaintiff-Appellee Jeff Reed, A152-241/ N.C.C.I., P.O. Box 1812, Marion, Ohio 43301 Defendant-Appellant, Pro Se . . . . . . . . . GRADY, J. {¶1} second, relief. Defendant, Jeff Reed, appeals from a denial of his successive R.C. 2953.21 petition for post-conviction The trial court dismissed the petition for lack of jurisdiction. Reed presents three assignments of error on appeal. {¶2} Pertinent to the trial court s order, R.C. 2953.23(A)(1)(b) provides that a court may 2 entertain not second or successive petitions unless, subsequent to the filing of an earlier recognized a petition new the federal United or States state right Supreme that Court applies retroactively to person in the petitioner s situation, and the petitioner asserts requirement is governing claim based on that right. This narrower in its compass than R.C. 2953.21(A)(1), original infringements a of petitions, rights that which render speaks the of denials judgment void or or voidable under the Ohio Constitution or the Constitution of the United States . . . That standard comprehends rulings of The Supreme Court of Ohio as well as those of the United States Supreme Court. {¶3} Reed s second petition relies on a decision of The Supreme Court of Ohio in State v. Parker, 95 Ohio St.3d 524, 2002-Ohio-2833, which held: {¶4} A defendant charged with a crime punishable by death who has waived his right to trial by jury must, pursuant to R.C. 2945.06 and Crim.R. 11(C)(3), have his case heard and decided by a three-judge panel even if the state agrees that it will not seek the death penalty. {¶5} Reed s Id, Syllabus by the Court. contention in his petition was that his conviction for aggravated murder is void because, contrary to Parker, it was accepted by a single judge in a negotiated plea, 3 when the death penalty specification in his indictment had not been deleted. Reed was sentenced to life imprisonment. Parker had not yet been decided. {¶6} In his first assignment of error, Reed argues that R.C. 2953.23(A)(1) is unconstitutional because by its terms it limits the jurisdiction of The Supreme contention must fail on two accounts. Court of 22 Ohio St.3d 120. The First, it was not raised in the trial court, and is therefore waived. (1986), Ohio. Second, the State v. Awan statute in no way interferes with the original or appellate jurisdiction conferred on The Supreme Court by Article IV, Section 2(B) of the Ohio Constitution. authority Rather, it represents a valid exercise of the conferred on the General Assembly by Article IV, Section 4(B), to determine the jurisdiction of the courts of common pleas. {¶7} Reed s first assignment of error is overruled. For his second assignment of error, Reed argues that the trial court erred because he is entitled to relief under the rule of State v. Parker. That decision was not one rendered by the United States Supreme Court. The Supreme Court of Ohio. It was instead rendered by By the terms of R.C. 2953.23(A)(1)(b), the rule of Parker cannot create an exception to the bar which that section otherwise imposes against second or successive petitions for post-conviction second assignment of error is overruled. relief. Reed s {¶8} 4 Reed argues in his third assignment of error that he is not barred from relying on Parker because Parker involves jurisdictional error which may be raised at any time, and even collaterally That is attacked true with in a post-conviction respect to a court s jurisdiction and any error in its exercise. of Parker is not jurisdictional. failure to comply with the relief proceeding. subject-matter However, the rule Rather, it merely holds that three judge requirement of R.C. 2945.06 and Crim.R. 11(C)(3) is error in the court s procedure. Procedural error must be raised in a direct appeal from the judgment affected by it, not by way of collateral attack in a subsequent proceeding. 2000-Ohio-217. {¶9} Kirklin v. Enlow, 89 Ohio St.3d 455, Reed s third assignment of error is overruled. Having overruled the assignments of error presented, we will affirm the judgment from which this appeal was taken. FAIN, P.J. and BROGAN, J., concur. Copies mailed to: Andrew P. Pickering, Esq. Jeff Reed Hon. Gerald F. Lorig
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