[Cite as State v. King, 2011-Ohio-4529.]

COURT OF APPEALS 

 MUSKINGUM COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : 

 : Hon. W. Scott Gwin, P.J. 

 Plaintiff-Appellee : Hon. John W. Wise, J. 

 : Hon. Patricia A. Delaney, J. 

-vs- : 

 : Case No. CT2011-0006 

RICHARD KING : 

 : 

 : 

 Defendant-Appellant : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court 

of Common Pleas, Case No. CR2004-0327 

 

JUDGMENT: AFFIRMED 

DATE OF JUDGMENT ENTRY: September 6, 2011 

APPEARANCES: 

For Appellant: For Appellee: 

 

RICHARD KING (#489-103) D. MICHAEL HADDOX 

Chillicothe Correctional Institution MUSKINGUM COUNTY PROSECUTOR

P.O. Box 5500 

Chillicothe, OH 45601 ROBERT L. SMITH 0039297 

 Assistant Prosecuting Attorney 

 27 N. Fifth Street 

 Zanesville, OH 43701 

Delaney, J. 
{¶1} Defendant-Appellant Richard King appeals the January 20, 2011 decision 

of the Muskingum County Court of Common Pleas to deny Appellant’s Successive 

Petition to Vacate or Set Aside Judgment of Conviction of Sentence. Plaintiff-Appellee 

is the State of Ohio. 

STATEMENT OF THE CASE1

{¶2} Appellant was indicted on one count of pandering obscenity involving a 

minor, a felony of the second degree, in violation of Ohio R.C. 2907.321(A)(1) and sixtyone counts of pandering obscenity involving a minor, felonies of the third degree, in 

violation of R.C. 2907.321(A)(5). Appellant pled not guilty to all counts contained in the 

indictment. On January 24, 2005, the State filed a motion to amend the indictment. 

The trial court granted the motion and amended counts two through sixty-two of the 

indictment to felonies of the fourth degree. 

{¶3} A jury trial was held. On January 27, 2005, the jury found Appellant guilty 

on sixty-one counts of the indictment. The remaining count was dismissed. 

{¶4} On February 28, 2005, the trial court conducted a classification hearing 

finding Appellant to be a sexual predator and a habitual sex offender. The trial court 

sentenced Appellant to 36 1⁄2 years in prison. 

{¶5} Appellant timely appealed his conviction, sexual predator classification, 

and sentence. Appellant was represented by new counsel on appeal. 

{¶6} By Judgment Entry and Opinion dated January 19, 2006, this Court 

affirmed the trial court's actions as to the errors raised in assignments I, II and III but 

remanded with instructions as to assignment of error IV that alleged error in sentencing. 

State v. King, 5th Dist. No. CT05-17, 2006-Ohio-226. Appellant filed a timely appeal of 
the decision to the Ohio Supreme Court. On May 24, 2006, the Ohio Supreme Court 

denied leave to appeal and dismissed the appeal as not involving any substantial 

constitutional question. State v. King (2006), 109 Ohio St.3d 1482, 847 N.E.2d 1226. 

{¶7} On February 6, 2006, Appellant was brought before the trial court for 

resentencing pursuant to our remand in State v. King, 5th Dist. No. CT05-17, 2006-

Ohio-226. The trial court resentenced Appellant to a sentence of an aggregate of 36 1⁄2 

years in the Ohio Department of Corrections. The trial court did not journalize the 

resentencing conducted on February 6, 2006, due to the issuance of State v. Foster,

109 Ohio St.3d 1, 845 N.E.2d 470, 2006-Ohio-856 on February 27, 2006. The trial 

court held a resentencing hearing on March 6, 2006 pursuant to our remand and the 

requirements of State v. Foster, supra. The trial court resentenced Appellant to a 

sentence of an aggregate of 36 1⁄2 years in the Ohio Department of Corrections. The 

resentencing entry was journalized and filed on March 8, 2006. 

{¶8} Appellant appealed the March 8, 2006 resentencing. On November 13, 

2006, this Court affirmed Appellant's sentence. State v. King, 5th Dist. No. 06-20, 2006-

Ohio-6566. The Ohio Supreme Court declined to accept Appellant's appeal of that 

decision. State v. King (2007), 114 Ohio St.3d 1508, 2007-Ohio-4285. 

{¶9} Additionally, on October 20, 2005, Appellant filed a petition for postconviction relief in the trial court. On March 6, 2006, the trial court denied Appellant's 

post-conviction petition. Represented by new counsel, Appellant filed a timely appeal of 

the trial court's decision to this Court. On May 30, 2007, this Court affirmed the trial 

court's decision dismissing Appellant's petition for post-conviction relief. State v. King,

5th Dist. No. CT2006-0021, 2007-Ohio-2810. 

 1

 A Statement of Facts is not necessary to the resolution of this appeal. 
{¶10} On July 21, 2006, Appellant filed a pro se petition for a writ of habeas 

corpus pursuant to 28 U.S.C. § 2254, which was denied. King v. Wolfe (S.D. Ohio), 

2007 WL 666626. 

{¶11} On August 15, 2006, Appellant filed a Motion for a New Trial claiming 

newly discovered evidence. On January 9, 2007, the trial court denied Appellant's 

motion. On September 28, 2007, this Court affirmed the trial court's decision denying 

Appellant's motion for new trial. State v. King, 5th Dist. No. CT2007-0004, 2007-Ohio5297. 

{¶12} On October 8, 2008, Appellant filed a “Motion For Relief From Judgment” 

pursuant to Civ.R. 60(B). On October 15, 2008, the trial court summarily denied 

Appellant's motion. Appellant appealed the trial court's denial of his motion and on 

January 29, 2009, this Court denied the appeal, finding that his arguments were barred 

by res judicata and that they were substantively without merit. State v. King, 5th Dist. 

No. CT2008-0062, 2009-Ohio-412. 

{¶13} Appellant then filed a “Petition to Vacate or Set Aside Judgment of 

Conviction or Sentence” on March 13, 2009. On April 8, 2009, the trial court issued an 

entry denying Appellant's motion. Appellant continued to file papers in this matter, filing 

a “Motion to Correct Record and Reconsideration” on April 23, 2009, and a “Reply to 

State's Response to Defendant's Motion to Correct Record and Reconsideration.” On 

April 27, 2009, the trial court denied Appellant's motion. Appellant appealed the April 8, 

2009 judgment entry denying his post-conviction petition. 

{¶14} On July 30, 2009, this Court affirmed the decision of the trial court in State 

v. King, 5th Dist. No. CT2009-0022, 2009-Ohio-3854. Appellant filed a motion for 
reconsideration, which this Court denied on September 2, 2009. On October 5, 2009, 

Appellant filed a Notice of Appeal with the Ohio Supreme Court. The Ohio Supreme 

Court dismissed the appeal for want of prosecution on December 23, 2009. 

{¶15} On September 15, 2009, Appellant filed a Motion to Correct Sentence/ReSentence Defendant with the trial court. The trial court issued its decision on October 

14, 2009 denying Appellant's motion. Appellant filed an appeal of the trial court’s 

decision and this Court affirmed the decision of the trial court in State v. King, 5thDist. 

No. CT2009-0047, 2010-Ohio-798. 

{¶16} On November 2, 2010, Appellant filed the instant Successive Petition to 

Vacate or Set Aside Judgment of Conviction of Sentence. The trial court denied 

Appellant’s petition on January 20, 2011. It is from this decision Appellant now appeals. 

ASSIGNMENTS OF ERROR 

{¶17} Appellant raises two Assignments of Error: 

{¶18} “I. THE APPELLANT’S UNITED STATES SIXTH AMENDMENT RIGHTS 

TO EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED WHEN COUNSEL 

FAILED TO OBJECT TO THE PRESENTATION OF AN ANALYSIST [SIC] REPORT 

AT TRIAL WITHOUT THE ANALYSIST [SIC] BEING PRESENT AT TRIAL TYO [SIC] 

CROSS EXAMINE THEREBY VIOLATING THE APPELLANT’S RIGHTS TO 

CONFRONT WITNESSES AGAINST HIM. 

{¶19} “II. THE APPELLANT’S SIXTH AMENDMENT RIGHT [SIC] EFFECTIVE 

ASSISTANCE OF COUNSEL WAS VIOLATED WHEN TRIAL COUNSEL FAILED TO 

OBJECT TO THE AMENDING OF THE INDICTMENT THE DAY THE TRIAL 

STARTED.” 
{¶20} R.C. 2953.21(A) states, in part, as follows: “(1) Any person who has been 

convicted of a criminal offense or adjudicated a delinquent child and who claims that 

there was such a denial or infringement of the person's rights as to render the judgment 

void or voidable under the Ohio Constitution or the Constitution of the United States * * * 

may file a petition in the court that imposed sentence, stating the grounds for relief 

relied upon, and asking the court to vacate or set aside the judgment or sentence or to 

grant other appropriate relief. The petitioner may file a supporting affidavit and other 

documentary evidence in support of the claim for relief.” 

{¶21} Pursuant to R.C. 2953.21(A)(2), a petition for post-conviction relief “shall 

be filed no later than one hundred eighty 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 or 

adjudication or, if the direct appeal involves a sentence of death, the date on which the 

trial transcript is filed in the Supreme Court. If no appeal is taken, except as otherwise 

provided in section 2953.23 of the Revised Code, the petition shall be filed no later than 

one hundred eighty days after the expiration of the time for filing the appeal.” 

{¶22} “A petition for postconviction relief is a means to reach constitutional 

issues that would otherwise be impossible to reach because the evidence supporting 

those issues is not contained in the record of the petitioner's criminal conviction.” State 

v. Perry, 5th Dist. No. 2010CA00185, 2011-Ohio-274, ¶ 12, citing State v. Murphy

(Dec. 26, 2000), Franklin App. No. 00AP-233. “Although designed to address claimed 

constitutional violations, the post-conviction relief process is a civil collateral attack on a 

criminal judgment, not an appeal of that judgment.” Id., citing State v. Calhoun (1999), 

86 Ohio St.3d 279, 281, 714 N.E.2d 905, 1999-Ohio-102; State v. Steffen (1994), 70 
Ohio St.3d 399, 410, 693 N.E.2d 67, 1994-Ohio-111. “A petition for post-conviction 

relief, thus, does not provide a petitioner a second opportunity to litigate his or her 

conviction, nor is the petitioner automatically entitled to an evidentiary hearing on the 

petition.” Id., citing State v. Jackson (1980), 64 Ohio St.2d 107, 110, 413 N.E.2d 819; 

State v. Lewis, Stark App. No. 2007CA00358, 2008-Ohio-3113 at ¶ 8. A court need not 

issue findings of fact and conclusions of law when it dismisses an untimely petition or 

successive petitions for postconviction relief. State ex rel. Kimbrough v. Greene, 98 

Ohio St.3d 116, 2002-Ohio-7042, 781 N.E.2d 155; State ex rel. Fuller v. Sutula (1999), 

86 Ohio St. 3d 301, 714 N.E.2d 924. 

{¶23} As an initial matter, we must examine the trial court’s ability to review the 

Appellant's petition for postconviction relief. 

{¶24} Appellant filed a direct appeal of his conviction and sentence. Appellant 

has also previously filed a petition for postconviction relief. It is undisputed that 

Appellant’s second petition for postconviction relief was filed beyond the time 

requirement in R.C. 2953.21(A)(2). Accordingly, we must look to R.C. 2953.23(A)(1) to 

determine if the trial court could consider Appellant’s successive petition for 

postconviction relief. 

{¶25} The statute provides, in pertinent part: 

{¶26} “* * * [A] court may not entertain a petition filed after the expiration of the 

period prescribed in division (A) of that section or a second petition or successive 

petitions for similar relief on behalf of a petitioner unless division (A)(1) or (2) of this 

section applies: 

{¶27} “(1) Both of the following apply: 
{¶28} “(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. 

{¶29} “(b) The petitioner shows by clear and convincing evidence that, but for 

constitutional error at trial, no reasonable fact finder 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 fact finder would have found the petitioner eligible for the death sentence.” 

{¶30} We now examine Appellant’s Assignments of Error as to his petition to 

determine whether it was timely filed under R.C. 2953.23(A)(1). 

I. 

{¶31} Appellant argues in his first Assignment of Error that his trial counsel was 

ineffective because he failed to object to police officer testimony referring to a report 

from the National Center for Missing and Exploited Children regarding the identity and 

ages of the minors depicted in the images found on Appellant’s computer. Appellant 

contends that his Sixth Amendment right to confront witnesses was violated when the 

officers testified regarding the report when the preparer of the report was not made 

available as a witness. 

{¶32} Appellant relies upon the United States Supreme Court’s decision in 

Melendez-Diaz v. Massachusetts (2009), -- U.S. -- 129 S.Ct. 2527, 174 L.Ed.2d 314, to 
contend the Confrontation Clause was violated. In Melendez-Diaz, the U.S. Supreme 

Court held that laboratory reports prepared for trial were testimonial and failure to 

provide the testimony of the lab analyst was a violation of the Confrontation Clause. 

Appellant argues that the report prepared by the National Center for Missing and 

Exploited Children was within the purview of Melendez-Diaz and therefore Appellant 

should have been permitted to confront the preparer of that report. Appellant argues 

that Melendez-Diaz is significant to Appellant’s petition for postconviction relief for two 

reasons: (1) Melendez-Diaz, decided in 2009, is a new federal right that applies 

retroactively therefore making Appellant’s petition for post-conviction relief timely filed 

and (2) Appellant’s counsel’s failure to object to the testimony demonstrated ineffective 

assistance of counsel. 

{¶33} In Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354, 158 

L.Ed.2d 177, the Supreme Court held that, under the Confrontation Clause of the Sixth 

Amendment, testimonial statements made out of court cannot be admitted unless the 

witness is available for cross examination. Later, in Melendez–Diaz, the Court clarified 

Crawford to include that laboratory reports prepared for trial are testimonial and that 

admission of such reports into evidence without the testimony of the lab analyst 

presents a Confrontation Clause violation. 

{¶34} The State argues that the holding in Melendez-Diaz is not a new federal 

right, but the application of a right already established by Crawford at the time of 

Appellant’s original trial in 2005. Further, the report at issue in Melendez-Diaz was a 

laboratory report. The report in the present case was the examination of images by the 

National Center for Missing and Exploited Children. 
{¶35} The Northern District of Ohio in Mitchell v. Kelly (N.D. Ohio 2011), 2011 

WL 2579784, supports the State’s supposition that Melendez-Diaz did not create a new 

federal right. The district court in that case examined Melendez-Diaz for the disposition 

of a writ of habeas corpus. The court stated, “[t]he Supreme Court characterized 

Melendez-Diaz's holding as ‘little more than the application of our holding in 

Crawford[.]’” The court in Mitchell further held that Melendez-Diaz did not establish a 

new rule of law that required retroactive application. 

{¶36} We find the Appellant’s utilization of Melendez-Diaz to argue that his 

petition for postconviction for relief is timely filed under R.C. 2953.23(A)(1) is meritless. 

We therefore hold the trial court did not err in denying Appellant’s petition for 

postconviction relief on that argument because it was without jurisdiction to consider 

such a petition. Based on our decision, it is unnecessary for this Court to further 

examine whether Appellant’s counsel was ineffective for failing to object to the officers’ 

testimony about the report. 

{¶37} Appellant’s first Assignment of Error is overruled. 

II. 

{¶38} We next address Appellant’s second Assignment of Error to determine 

whether the petition for postconviction relief was timely filed under the statutory rules or 

is otherwise procedurally barred. Appellant states in his second Assignment of Error 

that he received ineffective assistance of counsel when his counsel failed to object 

when the trial court permitted the State to amend the indictment on the day of trial. 
{¶39} As an initial matter, we find Appellant has failed to set forth any grounds 

under R.C. 2953.23 for the filing of an untimely petition. Accordingly, the trial court 

properly denied the petition on this basis. 

{¶40} We further find the doctrine of res judicata bars Appellant’s argument. 

Under the doctrine of res judicata, a final judgment of conviction bars a convicted 

defendant who was represented by counsel from raising and litigating in any 

proceeding, except an appeal from that judgment, any defense or any claimed lack of 

due process that was raised or could have been raised by the defendant at the trial, 

which resulted in that judgment of conviction, or on an appeal from that judgment. State 

v. Szefcyk (1996), 77 Ohio St.3d 93, 671 N.E.2d 233, syllabus, approving and following 

State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104, paragraph nine of the 

syllabus. It is well settled that, “pursuant to res judicata, a defendant cannot raise an 

issue in a [petition] for post conviction relief if he or she could have raised the issue on 

direct appeal.” State v. Reynolds (1997), 79 Ohio St.3d 158, 161, 679 N.E.2d 1131. 

Similarly, regarding claims of ineffective assistance of trial counsel in post conviction 

proceedings, the Ohio Supreme Court has stated that where a defendant, represented 

by different counsel on direct appeal, “fails to raise [in the direct appeal] the issue of 

competent trial counsel and said issue could fairly have been determined without resort 

to evidence dehors the record, res judicata is a proper basis for dismissing defendant's 

petition for post conviction relief.” State v. Cole (1982), 2 Ohio St.3d 112, 443 N.E.2d 

169, syllabus; see, also, Lentz, 70 Ohio St.3d at 530, 639 N.E.2d 784. 

{¶41} Appellant in this case made a direct appeal of his conviction and 

sentence. Appellant was represented by different counsel on direct appeal. There 
appears no reason in the record that Appellant could not have raised the issue in his 

direct appeal. Therefore, we find that Appellant’s argument is prohibited by res judicata. 

{¶42} Appellant’s second Assignment of Error is overruled. 

{¶43} The judgment of the Muskingum County Court of Common Pleas is 

affirmed. 

By: Delaney, J. 

Gwin, P.J. and 

Wise, J. concur. 

HON. PATRICIA A. DELANEY 

HON. W. SCOTT GWIN 

HON. JOHN W. WISE 

 IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 : 

 Plaintiff-Appellee : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

RICHARD KING : 

 : 

 : Case No. CT2011-0006 

 Defendant-Appellant : 
 For the reasons stated in our accompanying Opinion on file, the judgment of the 

Muskingum County Court of Common Pleas is affirmed. Costs assessed to Appellant. 

 

HON. PATRICIA A. DELANEY 

HON. W. SCOTT GWIN 

HON. JOHN W. WISE