[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, O P I N I O N 

 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 

 
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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 
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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 
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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 
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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. ScottHoover, 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 sixtyfive 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. 15AP557, 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. 
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(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 
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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.” ScottHoover, 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. 
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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-Ohio5669, ¶ 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 
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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 
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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