[Cite as State v. Workman, 2019-Ohio-5379.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              AUGLAIZE COUNTY




STATE OF OHIO,
                                                        CASE NO. 2-19-09
       PLAINTIFF-APPELLEE,

      v.

TIMOTHY SCOTT WORKMAN,                                  OPINION

       DEFENDANT-APPELLANT.



                Appeal from Auglaize County Common Pleas Court
                           Trial Court No. 2014-CR-75

                                    Judgment Affirmed

                         Date of Decision: December 30, 2019



APPEARANCES:

        Timothy Workman Appellant

        Benjamin R. Elder for Appellee
Case No. 2-19-07


WILLAMOWSKI, 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 Timothy S. Workman (“Workman”) appeals the judgment of

the Auglaize County Court of Common Pleas, alleging that the trial court erred in

dismissing his petition for post-conviction relief without an evidentiary hearing. For

the reasons set forth below, the judgment of the trial court is affirmed.

                           Facts and Procedural History

       {¶2} On October 3, 2014, Workman was found guilty of thirty-nine counts

of illegal use of a minor in nudity-oriented material in violation of R.C.

2907.323(A)(1), thirty-nine counts of illegal use of a minor in nudity-oriented

material in violation of R.C. 2907.323(A)(3), and one count of tampering with

evidence in violation of R.C. 2921.12(A)(1).        Doc. 202-280.     Workman was

sentenced to an aggregate forty-year prison term. Doc. 368. He filed his direct

appeal on March 9, 2015. Doc. 381. On December 7, 2015, this Court affirmed his

conviction. Doc. 424. State v. Workman, 3d Dist. Auglaize No. 2-15-05, 2015-

Ohio-5049.

       {¶3} Since his conviction was affirmed by this Court, Workman has filed

numerous motions relative to his conviction with the trial court. Workman filed a

motion for a Franks hearing on April 8, 2015 and February 16, 2016. Doc. 394,

446. The trial court subsequently denied both of these motions. Doc. 402, 448. He

                                         -2-
Case No. 2-19-07


appealed the denial of one of these motions. Doc. 479. This Court then affirmed

the decision of the trial court. Doc. 502.

         {¶4} Workman has filed a motion for a new trial on August 12, 2016;

December 12, 2016; November 3, 2017; and February 22, 2018. Doc. 512, 533,

577, 599. On March 18, 2018, Workman filed a motion for leave to file a motion

for a new trial. Doc. 603. The trial court subsequently denied each of these motions.

Doc. 530, 549, 585, 600, 607. Workman then appealed the denial of two of these

motions. Doc. 588, 610. In both of these appeals, this Court affirmed the decision

of the trial court. Doc. 606, 646.

         {¶5} Workman has also filed a petition for postconviction relief on

September 16, 2015; on April 10, 2017; on May 17, 2018; on September 24, 2018;

and on June 20, 2019. Doc. 414, 553, 618, 648, 672. The trial court subsequently

dismissed or denied each of these petitions.       Doc. 441, 558, 627, 653, 681.

Workman then appealed the trial court’s disposition of each of these petitions. Doc.

463, 561, 630, 657, 684. This Court has, on appeal, affirmed the trial court’s

decision regarding each of the prior petitions. Doc. 502, 575, 665, 667, State v.

Workman, 3d Dist. Auglaize No. 2-19-07, unreported judgment entry (Dec. 16,

2019).

         {¶6} On August 12, 2019, Workman filed a successive petition for

postconviction relief that requested an evidentiary hearing. Doc. 690. The trial

court dismissed Workman’s petition on August 12, 2019, concluding that it lacked

                                         -3-
Case No. 2-19-07


jurisdiction to entertain Workman’s petition. Doc. 695. The appellant filed his

notice of appeal on August 22, 2019. Docket 2: 1. On appeal, Workman raises the

following assignments of error:

                           First Assignment of Error

       The trial court abused its discretion when it dismissed
       Workman’s Petition for Post Conviction [Relief], when the record
       shows that Workman was unavoidably prevented from discovery
       of the facts which he relies.

                          Second Assignment of Error

       The trial court abused its discretion when it failed to hold an
       evidentiary hearing on Workman’s Petition for Post Conviction
       Relief [because] Workman meets the statutory requirements that
       allow this Court to entertain this successive Petition for Post
       Conviction Relief.

We will consider both of these assignments of error in one analysis.

                      First and Second Assignments of Error

       {¶7} In his successive petition for postconviction relief, Workman alleges

that he received documents after his conviction that had not been provided to him

before or during his trial. He argues, based on this alleged newly discovered

evidence, that he is entitled to an evidentiary hearing regarding the matters in his

petition.

                                  Legal Standard

       {¶8} “R.C. 2953.21, Ohio’s postconviction-relief statute, provides ‘a remedy

for a collateral attack upon judgments of conviction claimed to be void or voidable


                                        -4-
Case No. 2-19-07


under the United States or the Ohio Constitution.’” State v. Keith, 176 Ohio App.3d

260, 2008-Ohio-741, 891 N.E.2d 1191, ¶ 24 (3d Dist.), quoting State v. Scott-

Hoover, 3d Dist. Crawford No. 3-04-11, 2004-Ohio-4804, ¶ 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.” Keith at ¶ 26. A petition for postconviction

relief is timely filed if the petition is submitted “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).

       {¶9} “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. R.C. 2953.23(A) reads, in its relevant part, as follows:

       (A) * * *[A] court may not entertain a petition filed after the
       expiration of the period prescribed in [R.C. 2953.21(A)] of that
       section or a second petition or successive petitions for similar
       relief on behalf of a petitioner unless * * *:

       (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, 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.

                                           -5-
Case No. 2-19-07



       (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 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)(1). “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.

       {¶10} “However, ‘[t]he filing of a petition for postconviction relief does not

automatically entitle the petitioner to an evidentiary hearing.’” State v. Lewis, 3d

Dist. Logan No. 8-19-08, 2019-Ohio-3031, ¶ 12 quoting State v. Andrews, 3d Dist.

Allen No. 1-11-42, 2011-Ohio-6106, ¶ 11. Rather, “[a] hearing on a petition for

post-conviction relief is not necessary unless the trial court finds that the petition

sets forth substantive grounds for relief.” State v. Brown, 3d Dist. Allen No. 1-11-

68, 2012-Ohio-2126, ¶ 6, citing State v. Calhoun, 86 Ohio St.3d 279, 282-83, 714

N.E.2d 905 (1999). To determine whether there are substantive grounds for relief,

       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

                                         -6-
Case No. 2-19-07


       journalized records of the clerk of the court, and the court
       reporter’s transcript.

R.C. 2953.21(C). “Therefore, before a hearing is granted, the petitioner bears the

initial burden to submit evidentiary documents containing sufficient operative facts

to demonstrate the errors alleged in the petition for postconviction relief.” Scott-

Hoover, supra, at ¶ 12.

       {¶11} Further, the doctrine of “[r]es judicata applies to any claim that was

raised or could have been raised in a prior petition for postconviction relief.” State

v. Clemmons, 2d Dist. Montgomery No. 28085, 2019-Ohio-2997, ¶ 25. See Coulson

v. Coulson, 5 Ohio St.3d 12, 13, 448 N.E.2d 809 (1983) (holding that “[p]rinciples

of res judicata prevent relief on successive, similar motions raising issues which

were or could have been raised originally.”). “‘Res judicata’ means that a final

decision has previously been made * * * [and] serves to preclude a party who had

his or her day in court from seeking a second hearing on the same issue.” Clemmons

at ¶ 25. Thus, res judicata operates to “bar raising piecemeal claims in successive

postconviction relief petitions * * *.” State v. Lawson, 12th Dist. Clermont No.

CA2013-12-093, 2014-Ohio-3554, ¶ 53, quoting State v. Johnson, 5th Dist.

Guernsey No. 12 CA 19, 2013-Ohio-1398, ¶ 47.

       {¶12} “[I]f the court determines that there are no substantive grounds for

relief, it may dismiss the petition without an evidentiary hearing.” State v. Driskill,

3d Dist. Mercer Nos. 10-07-03 and 10-07-04, 2008-Ohio-827, ¶ 13, quoting State v.


                                         -7-
Case No. 2-19-07


Jones, 3d Dist. Defiance No. 4-07-02, 2007-Ohio-5624, ¶ 14. “The decision to grant

the petitioner an evidentiary hearing is left to the sound discretion of the trial court.”

Andrews at ¶ 11, citing Calhoun at 284. Thus, we review a trial court’s dismissal

of an untimely or successive petition for post-conviction relief without a hearing for

an abuse of discretion. State v. Baker, 3d Dist. Auglaize No. 2-16-07, 2016-Ohio-

5669, ¶ 10.

       {¶13} “An abuse of discretion is not merely an error 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. When

the abuse of discretion standard applies, an appellate court is not to substitute its

judgment for that of the trial court. State v. Thompson, 2017-Ohio-792, 85 N.E.3d

1108, ¶ 11 (3d Dist.).

                                    Legal Analysis

       {¶14} Since Workman’s direct appeal occurred in 2015, this successive

petition for postconviction relief was not filed within the time limit prescribed in

R.C. 2953.21(A)(2). Thus, unless one of the exceptions in R.C. 2953.23(A) applies,

the trial court did not have jurisdiction to consider Workman’s petition for

postconviction relief. In this case, Workman argues that he was unavoidably



                                           -8-
Case No. 2-19-07


prevented from discovering the evidence that forms the basis of his petition and that,

but for this constitutional error, he would not have been found guilty.

       {¶15} In his petition, Workman claims that he did not, at the time of his trial,

have access to an incident report that documented the investigative activities of the

police on September 30, 2013 (“Incident Report”). Doc. 690. One page of this

incident report is attached to Workman’s petition and forms the basis of his

arguments. Doc. 690. However, the State, in its response to Workman’s petition,

represents that this Incident Report was provided to Workman on January 6, 2014

as part of the State’s initial discovery disclosure to the Defense. Doc. 698. For this

reason, the State argues that the evidence that forms the basis of Workman’s petition

was available to him at the time of his trial and during his direct appeal. Doc. 698.

Thus, the State argued that Workman’s petition was barred by res judicata. Doc.

698.

       {¶16} Even if the State did not provide Workman with this Incident Report

during discovery, this petition is still barred by res judicata because Workman

submitted this exact same page of the Incident Report with a prior petition for

postconviction relief on May 17, 2018. Doc. 618, 690. See State v. McKelton, 2016-

Ohio-3216, 55 N.E.3d 26, ¶ 15 (12th Dist.). This earlier petition was dismissed by

the trial court on May 23, 2018. Doc. 627. After Workman appealed the dismissal

of his petition, this Court affirmed the decision of the trial court. Doc. 630, 665.

The fact that he had this document at the time he filed his previous petition for

                                         -9-
Case No. 2-19-07


postconviction relief means he could have raised this exact issue in his prior petition.

Further, beyond the Incident Report, the remaining facts and arguments raised in

this successive petition have been raised previously in Workman’s prior petitions

for postconviction relief. Thus, res judicata bars the claims raised in his petition.

       {¶17} Workman has not demonstrated that one of the exceptions in R.C.

2953.23(A) applies to this case. After reviewing the evidence in the record, we

conclude that the trial court did not abuse its discretion in dismissing Workman’s

untimely, successive petition for postconviction relief without an evidentiary

hearing. Thus, the appellant’s first and second assignments are overruled.

                                     Conclusion

       {¶18} Having found no error prejudicial to the appellant in the particulars

assigned and argued, the judgment of the Auglaize County Court of Common Pleas

is affirmed.

                                                                  Judgment Affirmed

ZIMMERMAN, P.J. and SHAW, J., concur.

/hls




                                         -10-
