[Cite as State v. Russell, 2017-Ohio-2871.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 

 Plaintiff-Appellee, : No. 16AP-542 

 (C.P.C. No. 01CR-6462) 

v. : 

 (ACCELERATED CALENDAR) 

Mark R. Russell, : 

 

 Defendant-Appellant. : 

 

 

D E C I S I O N 

Rendered on May 18, 2017 

 

On brief: Ron O'Brien, Prosecuting Attorney, and Laura R. 

Swisher, for appellee. 

On brief: Mark R. Russell, pro se. 

 

APPEAL from the Franklin County Court of Common Pleas 

BROWN, J. 

{¶ 1} This is an appeal by defendant-appellant, Mark R. Russell, from a judgment 

of the Franklin County Court of Common Pleas denying his successive petition for postconviction relief. 

{¶ 2} On November 1, 2001, appellant was indicted on one count of murder with a 

firearm specification. The indictment arose out of the shooting death of Kenneth Sartin 

on August 11, 2000. A jury subsequently found appellant guilty of the murder charge and 

the trial court sentenced him to a term of 15 years to life, with an additional term of 3 

years incarceration for the firearm specification. 

{¶ 3} Appellant appealed his conviction asserting that he received ineffective 

assistance of counsel and that the trial court erred in refusing to allow into evidence tape-
No. 16AP-542 2 

recorded interviews between appellant and police detectives. In State v. Russell, 10th 

Dist. No. 03AP-666, 2004-Ohio-2501 ("Russell I"), this court overruled appellant's 

assignments of error and affirmed the judgment of the trial court. 

{¶ 4} On July 3, 2003, appellant filed a motion for new trial citing the following 

three grounds: "(1) improper impeachment of appellant with his prior inconsistent 

statements; (2) denial of his request to play audio and video tapes of his previous 

statements; and (3) exclusion of evidence." State v. Russell, 10th Dist. No. 04AP-1149, 

2005-Ohio-4063, ¶ 3 ("Russell II"). The trial court denied appellant's motion for new trial 

on the grounds of res judicata, holding that appellant's arguments were raised or could 

have been raised in his direct appeal. Appellant appealed the trial court's decision, and 

this court affirmed the judgment of the trial court in Russell II. 

{¶ 5} On November 2, 2004, appellant filed a petition for post-conviction relief, 

pursuant to R.C. 2953.21, asserting the following grounds for relief: "(1) prosecutorial 

misconduct; (2) trial counsel coercion; (3) ineffective assistance of trial counsel; and 

(4) improper admission of evidence." State v. Russell, 10th Dist. No. 05AP-391, 2006-

Ohio-383, ¶ 3 ("Russell III"). By decision and entry filed March 22, 2005, the trial court 

denied appellant's petition without a hearing. In Russell III, this court affirmed the 

judgment of the trial court finding the petition was untimely. 

{¶ 6} On January 20, 2005, appellant filed a motion to produce grand jury 

testimony. On November 21, 2005, the trial court denied the motion on the basis that it 

failed to set forth a particularized need for the disclosure. Appellant appealed that 

decision, and this court affirmed the judgment of the trial court in State v. Russell, 10th 

Dist. No. 05AP-1325, 2006-Ohio-5945 ("Russell IV"). 

{¶ 7} On December 12, 2005, appellant filed a second motion for new trial 

asserting the state had failed to disclose the identity and statement of an individual to 

whom appellant had allegedly confessed to the crime. The trial court denied appellant's 

motion for new trial, concluding that his claims were barred by the doctrine of res 

judicata. Following an appeal, this court affirmed the judgment of the trial court in State 

v. Russell, 10th Dist. No. 06AP-498, 2006-Ohio-6221 ("Russell V"). 

{¶ 8} On July 23, 2010, appellant filed a motion for leave to file a delayed motion 

for new trial, asserting newly discovered evidence. The trial court denied the motion by 
No. 16AP-542 3 

decision and entry filed January 14, 2011. Appellant appealed that decision, and this 

court affirmed the judgment of the trial court in State v. Russell, 10th Dist. No. 11AP-108, 

2011-Ohio-4519 ("Russell VI"). 

{¶ 9} On November 9, 2011, appellant filed a second petition for post-conviction 

relief. In response, the state filed a motion to dismiss the petition. By decision and entry 

filed February 13, 2012, the trial court granted the state's motion to dismiss. This court 

subsequently affirmed the judgment of the trial court. See State v. Russell, 10th Dist. No. 

12AP-197, 2012-Ohio-4515 ("Russell VII"). 

{¶ 10} On May 5, 2016, appellant filed a "delayed petition for post-conviction relief 

and challenge to the constitutionality of Ohio Rev. Code § 2953.23(A)(1)(a) & (b)." On 

June 7, 2016, the state filed an answer and motion to dismiss appellant's petition. By 

decision and entry filed June 23, 2016, the trial court granted the state's motion to 

dismiss and denied the petition. 

{¶ 11} On appeal, appellant sets forth the following three assignments of error for 

this court's review: 

[I.] APPELLANT'S 6TH AND 14TH AMENDMENT RIGHTS 

OF THE U.S. CONSTITUTION WERE VIOLATED WHEN 

THE TRIAL COURT ABUSED ITS DISCRETION DENYING 

APPELLANT'S DELAYED POST CONVICTION PETITION. 

[II.] ORC 2953.21, 2953.22, 2953.23(A)(1)(a) & (b) ARE 

UNCONSTITUTIONAL UPON THEIR FACE AND AS 

APPLIED IN VIOLATION OF THE SUPREMACY, DUE 

PROCESS, AND EQUAL PROTECTION CLAUSES OF THE 

U.S. CONSTITUTION UNDER THE RETROACTIVE 

DECISION IN MARTINEZ, TR[E]VINO, AND 

MONTGOMERY, BECAUSE SUCH DENIES INDIGENT 

PRISONERS POST CONVICTION DISCOVERY 

PROCEDURES THAT FORECLOSES THEIR RIGHT-OFREMEDY TO PROVE BRADY VIOLATIONS. 

[III.] ORC 2953.21, 2953.22, 2953.23(A)(1)(a) & (b) ARE 

UNCONSTITUTIONAL UPON THEIR FACE AND AS 

APPLIED IN VIOLATION OF THE SUPREMACY, DUE 

PROCESS, AND EQUAL PROTECTION CLAUSES OF THE 

U.S. CONSTITUTION UNDER RETROACTIVE DECISIONS 

IN MARTINEZ, TR[E]VINO, AND MONTGOMERY, 

BECAUSE SUCH DENIES INDIGENT PRISONERS POST 

CONVICTION DISCOVERY PROCEDURES THAT 
No. 16AP-542 4 

FORECLOSES THEIR RIGHT-OF-REMEDY TO PROVE 

INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL CLAIMS 

WITH EVIDENCE OUTSIDE THE RECORD. 

{¶ 12} Appellant's three assignments of error are interrelated and will be 

considered together. Under his first assignment of error, appellant, pro se, contends the 

trial court erred in denying his successive petition for post-conviction relief. Under his 

second and third assignments of error, appellant asserts that Ohio's post-conviction relief 

statutes are unconstitutional as denying post-conviction discovery procedures that 

foreclose a prisoner's right to prove Brady1 violations as well as the right to prove 

ineffective assistance of counsel. 

{¶ 13} Under Ohio law, a post-conviction relief proceeding "is a collateral civil 

attack on a judgment," and therefore an appellate court reviews the trial court's ruling "for 

an abuse of discretion." State v. King, 8th Dist. No. 103947, 2017-Ohio-181, ¶ 10. Ohio's 

post-conviction relief statute, R.C. 2953.21(A), "permits a person who has been convicted 

of a criminal offense and who claims that there was a constitutional violation that 

rendered the judgment void or voidable to file a petition asking the court to set aside the 

judgment or grant other appropriate relief." Id. at ¶ 11. At the time of appellant's 

conviction, R.C. 2953.21(A)(2) required that a petition be filed no later than 180 days after 

the date the trial transcript was filed in the court of appeals in the direct appeal. 

{¶ 14} A trial court may not entertain an untimely or successive petition for postconviction relief unless the petitioner "initially demonstrates either (1) he was 

unavoidably prevented from discovering the facts necessary for the claim for relief, or (2) 

the United States Supreme Court recognized a new federal or state right that applies 

retroactively to persons in the petitioner's situation." State v. Chavis, 10th Dist. No. 

15AP-557, 2015-Ohio-5549, ¶ 9, citing R.C. 2953.23(A)(1)(a). Further, "[i]f the petitioner 

can satisfy one of those two conditions, he must also demonstrate that but for the 

constitutional error at trial no reasonable finder of fact would have found him guilty." Id., 

citing R.C. 2953.23(A)(1)(b). The time period defined under R.C. 2953.21(A)(2) "is 

jurisdictional," and unless a defendant makes the showings required by R.C. 2953.23(A), 

 

1 Brady v. Maryland, 373 U.S. 83 (1963). 
No. 16AP-542 5 

a trial court lacks jurisdiction to consider either an untimely or a successive petition for 

post-conviction relief. State v. Norris, 7th Dist. No. 11 MO 4, 2013-Ohio-866, ¶ 10. 

{¶ 15} In his pro se petition before the trial court, appellant claimed he met the 

exception for filing a successive petition "based upon several United States Supreme 

Court cases that recognize 'new' federal and state rights that apply retroactively to 

defendant-petitioner's situation." Appellant's underlying claim in his petition for postconviction relief was that the prosecutor presented misleading testimony during the grand 

jury proceedings that resulted in his indictment. Specifically, appellant argued the state 

presented improper testimony before the grand jury as to whether he confessed to a 

witness regarding the death of the shooting victim. 

{¶ 16} In Russell IV, appellant raised a similar claim in challenging the trial court's 

denial of his motion to produce grand jury testimony. In that case, appellant asserted 

someone had falsely testified before the grand jury because "the state indicated at pre-trial 

hearings that defendant had confessed to a witness," but "no one testified to the 

confession at trial." Id. at ¶ 12. This court rejected appellant's argument, finding the fact 

that a witness "may have testified before the grand jury but not at trial does not 

demonstrate a particularized need for the disclosure of grand jury testimony. * * * Nor 

would that fact demonstrate that the witness falsely testified before the grand jury." Id. 

{¶ 17} In Russell V, appellant again raised this issue in challenging the trial court's 

denial of his second motion for new trial, asserting that "the state had failed to disclose, 

prior to trial, the identity and statement of an individual to whom appellant had allegedly 

confessed to the crime." Id. at ¶ 7. This court found no error by the trial court in denying 

the motion, holding in part: 

Appellant maintains he is entitled to a new trial because the 

prosecutor failed to disclose discovery material essential to his 

defense. More specifically, appellant argues that the 

prosecutor, during an arraignment hearing on October 23, 

2001, stated that appellant confessed to an individual about 

killing the victim. Appellant argues that the identity of this 

individual was never disclosed, nor did this individual ever 

testify in subsequent court proceedings. Appellant contends 

that false or misleading testimony regarding this individual 

was given to the grand jury to secure the indictment. 

* * * 
No. 16AP-542 6 

Upon review, we find no abuse of discretion by the trial court 

in denying appellant's motion based upon the doctrine of res 

judicata. * * * In the present case, as noted above, in addition 

to the direct appeal of his conviction, appellant previously 

filed a petition for post-conviction relief and a motion for new 

trial. The state argues, and we agree, that appellant fails to 

explain how the matters raised in the instant successive 

motion for new trial could not have been raised in appellant's 

earlier filings. Under these circumstances, the trial court had 

discretion to deny, on the grounds of res judicata, appellant's 

second motion for new trial. 

Russell V at ¶ 10-12. 

{¶ 18} In the instant case, the trial court found the claims raised in appellant's 

petition for post-conviction relief, "the latest of many" filed by appellant, "are barred by 

the doctrine of res judicata." (Emphasis sic.) On review of the record, including this 

court's previous determination in Russell V that appellant failed to demonstrate why he 

could not have raised the issue of the state's alleged misleading testimony in his earlier 

filings, we find no error by the trial court. 

{¶ 19} The trial court further found no merit to appellant's "argument that the 

cases he cites recognize new rights that apply retroactively to [his] claims." (June 7, 2016 

Entry at 2.) We also find no error with the trial court's determination on that issue. 

{¶ 20} Appellant argued before the trial court that the United States Supreme 

Court had released three decisions recognizing new federal or state rights that affect a 

state's post-conviction procedures on substantive constitutional grounds that apply 

retroactively to individuals in his situation. Specifically, appellant relied on Martinez v. 

Ryan, 566 U.S. 1 (2012); Trevino v. Thaler, 569 U.S. ___, 133 S.Ct. 1911 (2013); and 

Montgomery v. Louisiana, 577 U.S. ___, 136 S.Ct. 718 (2016). 

{¶ 21} In Martinez, the Supreme Court held that a federal habeas petitioner could 

overcome federal procedural default rules if a state law required a defendant could only 

raise ineffective assistance of counsel in a collateral proceeding (i.e., the Arizona state law 

at issue in Martinez did "not permit a convicted person alleging ineffective assistance of 

trial counsel to raise that claim on direct review"). Id. at 4. Ohio, however, "does not 

require claims of ineffective assistance of trial counsel to be brought in such a proceeding, 
No. 16AP-542 7 

and it regularly considers these claims on direct appeal." In re Hartman, 6th Cir. No. 12-

4255 (Nov. 8, 2012).2 Further, "the Supreme Court has not determined that Martinez

announced a new rule that should be retroactively available to cases on collateral review." 

Id. See also State v. Stephens, 9th Dist. No. 27957, 2016-Ohio-4942, ¶ 10 ("Unlike the 

circumstances in Martinez, Stephens had the opportunity to, and did, raise an ineffective 

assistance challenge on direct appeal," and it therefore follows that "Martinez did not 

establish a new right enabling Stephens to file an untimely petition" for post-conviction 

relief.). 

{¶ 22} Thus, "Martinez does not provide a free-standing constitutional right to the 

appointment of counsel in postconviction proceedings. Rather, it established an equitable 

doctrine for overcoming procedural default in certain limited circumstances." State v. 

Glover, 8th Dist. No. 100330, 2014-Ohio-3228, ¶ 28. See also State v. Waddy, 10th Dist. 

No. 15AP-397, 2016-Ohio-4911, ¶ 61 ("Martinez * * * does not recognize a constitutional 

right to counsel or effective assistance of counsel in post-conviction proceedings. Nor does 

it find any particular state procedural or substantive rules akin to Ohio's post-conviction 

relief scheme to be unconstitutional."). 

{¶ 23} In Trevino, the Supreme Court "extended the rationale of Martinez to Texas 

convictions when state procedural rules do not require the defendant to raise an 

ineffective-assistance-of-trial-counsel claim in an initial-review collateral proceeding but 

also do not provide a meaningful opportunity to raise such a claim on direct appeal." 

Clark v. Davis, 850 F.3d 770, 776 (5th Cir.2017). Trevino, however, "does not recognize a 

constitutional right to counsel or effective assistance of counsel in postconviction 

proceedings, nor does it find any state laws unconstitutional." State v. Boles, 12th Dist. 

No. CA2016-07-014, 2017-Ohio-786, ¶ 30. Rather, "[w]hile Trevino expands the Martinez

rule to cases where defendants have been denied the effective assistance of counsel at the 

'initial review' stage of litigation such as direct appeal, it does not extend the rule to 

'attorney errors [in] second or successive collateral proceedings' or 'in any proceeding 

beyond the first occasion the State allows a prisoner to raise a claim of ineffective 

assistance at trial, even though that initial-review collateral proceeding may be deficient 

for other reasons.' " Id., quoting Martinez at 16. Stated otherwise, "the Martinez/Trevino

 

2 As noted under the facts, appellant raised a claim of ineffective assistance of counsel in his direct appeal. 
No. 16AP-542 8 

rule does not apply to successive [post-conviction relief] petitions and simply addresses 

when a federal court may ignore state procedural default and allow federal habeas claims 

to proceed." Id. 

{¶ 24} The final case cited by appellant, Montgomery, in which the Supreme Court 

addressed mandatory life imprisonment without parole for juvenile offenders, likewise 

does not support his position for filing a successive petition. In Montgomery, the 

Supreme Court held that "when a new substantive rule of constitutional law controls the 

outcome of a case, the Constitution requires state collateral review courts to give 

retroactive effect to that rule." Id. at 729. However, as discussed above, neither Martinez 

nor Trevino involve a new substantive rule of constitutional law that controls the outcome 

of this case. Accordingly, because none of the cases cited by appellant establish a new 

right that applies retroactively to his situation, the trial court did not err in dismissing his 

successive petition for post-conviction relief. 

{¶ 25} Based on the foregoing, appellant's three assignments of error are without 

merit and are overruled, and the judgment of the Franklin County Court of Common 

Pleas is hereby affirmed. 

Judgment affirmed. 

TYACK and HORTON, JJ., concur. 

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