[Cite as State v. Dunlap, 2015-Ohio-4644.]



                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                           HAMILTON COUNTY, OHIO




STATE OF OHIO,                               :        APPEAL NO. C-140594
                                                      TRIAL NO. B-9107546
         Respondent-Appellee,                :
                                                          O P I N I O N.
   vs.                                       :

TIMOTHY DUNLAP,                              :

         Petitioner-Appellant.               :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: November 10, 2015




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Respondent-Appellee,

Office of the Ohio Public Defender, and Randall L. Porter, Assistant State Public
Defender, for Petitioner-Appellant.
                    OHIO FIRST DISTRICT COURT OF APPEALS



STAUTBERG, Judge.

       {¶1} Petitioner-appellant Timothy Dunlap appeals from the Hamilton County
Common Pleas Court’s judgment dismissing his petition under R.C. 2953.21 et seq. for
postconviction relief. We affirm the court’s judgment.
       {¶2} In 1993, a Hamilton County jury found Dunlap guilty of aggravated
murder and aggravated robbery for killing and robbing his girlfriend, Belinda Bolanos.
For aggravated murder, the trial court sentenced Dunlap to death.
       {¶3} Dunlap unsuccessfully challenged his convictions in direct appeals to this
court, the Ohio Supreme Court, and the United States Supreme Court, State v. Dunlap,
1st Dist. Hamilton No. C-930121, 1994 Ohio App. LEXIS 3277 (July 27, 1994), aff’d, 73
Ohio St.3d 308, 652 N.E.2d 988 (1995), certiorari denied, 516 U.S. 1096, 116 S.Ct. 822,
133 L.Ed.2d 765 (1996), and in a postconviction petition filed in 1994. State v. Dunlap,
1st Dist. Hamilton No. C-970117, 1998 Ohio App. LEXIS 2870 (June 26, 1998), appeal
not accepted, 83 Ohio St.3d 1472, 701 N.E.2d 380 (1998). His petition for a writ of
habeas corpus is pending before the United States District Court for the Southern
District of Ohio.
       {¶4} In 2012, Dunlap again petitioned the common pleas court for
postconviction relief. In his petition, he challenged the adequacy of the corrective

process provided by the postconviction statutes and sought relief on the ground that his
trial counsel had been ineffective in investigating, preparing, and presenting his case in
mitigation. In this appeal from the dismissal of his 2012 petition, Dunlap advances four
assignments of error.
                           The Jurisdictional Standard
       {¶5} The postconviction petition from which this appeal derives was Dunlap’s
second petition and was filed well after the time prescribed by R.C. 2953.21(A)(2) had

expired. R.C. 2953.23 closely circumscribes a common pleas court’s jurisdiction to
entertain a late or successive postconviction petition filed in a case in which a sentence

of death has been imposed. The petitioner must show either that he was unavoidably


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                      OHIO FIRST DISTRICT COURT OF APPEALS



prevented from discovering the facts upon which his postconviction claim depends, or
that his claim is predicated upon a new and retrospectively applicable right recognized
by the United States Supreme Court since the time for seeking postconviction relief had

expired. R.C. 2953.23(A)(1)(a). And he must show “by clear and convincing evidence
that, but for constitutional error at trial, no reasonable factfinder would have found
[him either] guilty of the offense of which [he] was convicted or * * * eligible for the
death sentence.” R.C. 2953.23(A)(1)(b).
                 Constitutionality of the Jurisdictional Standard
       {¶6} In his first assignment of error, Dunlap contends that the common pleas
court erred in failing to declare unconstitutional, both on its face and as applied to him,
R.C. 2953.23(A)(1)(b)’s “clear and convincing evidence” jurisdictional standard. He
argues that requiring this showing before a common pleas court may entertain a late or

successive postconviction claim violates the Supremacy Clause of the United States

Constitution. We overrule this assignment of error for the reasons set forth in our
decision in State v. Bies, 1st Dist. Hamilton No. C-020306, 2003-Ohio-442, ¶ 14-15.

Accord State v. Cook, 1st Dist. Hamilton No. C-140118, 2014-Ohio-4900, ¶ 6.
                No Jurisdiction to Entertain Postconviction Claims
       {¶7} The balance of Dunlap’s assignments of error challenge the common pleas
court’s failure to grant relief on the grounds advanced in his postconviction petition.
We overrule the assignments of error, because the court had no jurisdiction to entertain
the petition.
       {¶8} Constitutionality of postconviction proceedings. In his first
ground for relief, Dunlap contended that the postconviction procedures provided by
R.C. 2953.21 et seq. and Crim.R. 35 are unconstitutional.           He argued that the
procedures do not provide “an adequate corrective process” or permit “meaningful
[postconviction] review,” because discovery is not afforded in the initial stages of a
postconviction proceeding, because argument on each ground for relief is limited to
three pages, and because the doctrine of res judicata applies to preclude granting relief


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upon any ground that could fairly have been determined in the direct appeal or in an
earlier postconviction proceeding.
       {¶9} R.C. 2953.21(A)(1) requires a postconviction petitioner to demonstrate a
constitutional deprivation that both occurred during the proceedings resulting in his

conviction and rendered his conviction void or voidable.            The constitutional
deprivations asserted by Dunlap in his first ground for relief did not occur during the
proceedings resulting in his convictions. And a determination that the postconviction

statutes were constitutionally infirm would not have rendered his convictions void or
voidable. See State v. Fitzpatrick, 1st Dist. Hamilton No. C-030804, 2004-Ohio-5615,

¶ 60. We, therefore, conclude that the common pleas court properly declined to grant
relief upon the first ground.
       {¶10} Ineffective assistance of trial counsel. In his second, third, and
fourth grounds for relief, Dunlap challenged his trial counsel’s effectiveness in
investigating, preparing, and presenting his case in mitigation. Dunlap asserted that
his trial counsel had failed to conduct a reasonable investigation to identify relevant

records and lay and expert witnesses to aid in presenting, during the penalty phase of
his trial, an adequate and complete social and mental-health history. But Dunlap did
not argue, nor does the record demonstrate, either that he had been unavoidably
prevented from discovering the facts underlying these claims, or that the claims were

predicated upon a new and retrospectively applicable right recognized by the United
States Supreme Court since his time for filing a postconviction petition had expired.
Thus, with respect to his second, third, and fourth grounds for relief, Dunlap satisfied

neither the time strictures of R.C. 2953.21(A)(2) nor the jurisdictional requirements of
R.C. 2953.23(A). Accordingly, the postconviction statutes did not confer upon the

common pleas court jurisdiction to entertain those claims on their merits.
       {¶11} Cumulative error. In his fifth ground for relief, Dunlap asserted that
he had been denied a fair trial by the accumulation of constitutional deprivations
alleged in his other grounds for relief. Under the doctrine of cumulative error, a


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                     OHIO FIRST DISTRICT COURT OF APPEALS



conviction may be reversed if the cumulative effect of errors deemed separately
harmless is to deny the defendant a fair trial. State v. DeMarco, 31 Ohio St.3d 191, 509
N.E.2d 1256 (1987), paragraph two of the syllabus. But Dunlap’s claim of cumulative

error depended upon proof of, and thus fell upon his failure to demonstrate, multiple
constitutional violations in the proceedings leading to his convictions. Therefore, his
cumulative-error claim did not provide a ground for relief from his convictions. See
State v. Madrigal, 87 Ohio St.3d 378, 398, 721 N.E.2d 52 (2000); State v. Were, 1st
Dist. Hamilton No. C-080697, 2009-Ohio-4494, ¶ 88.
       {¶12} Convictions were not void.                 Finally, a trial court always has

jurisdiction to correct a void judgment. State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d
353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 18-19. But none of Dunlap’s postconviction
claims, even if demonstrated, would have rendered his convictions void. See State v.

Grant, 1st Dist. Hamilton No. C-120695, 2013-Ohio-3421, ¶ 9-16 (holding that a

judgment of conviction is void only to the extent that a sentence is unauthorized by
statute or does not include a statutorily mandated term or if the trial court lacks

subject-matter jurisdiction or the authority to act).
                             The Judgment is Affirmed
       {¶13} Because Dunlap failed to satisfy R.C. 2953.21’s time requirements and
R.C. 2953.23’s jurisdictional requirements, the common pleas court had no jurisdiction
to entertain his postconviction petition. We, therefore, hold that the court properly
dismissed the petition and, accordingly, affirm the court’s judgment.

                                                                     Judgment affirmed.
CUNNINGHAM, P.J., and DEWINE, J., concur.


Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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