[Cite as State v. Burns, 2016-Ohio-4833.]

COURT OF APPEALS 

LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsROBERT BURNS, JR. 

 Defendant-Appellant 

JUDGES: 

Hon. William B. Hoffman, P.J. 

Hon. John W. Wise, J. 

Hon. Craig R. Baldwin, J. 

Case No. 15-CA-98 

O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Licking County Court of 

Common Pleas, Case No. 12 CR 00116 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: July 6, 2016 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

KENNETH OSWALT ROBERT BURNS, PRO SE 

Licking County Prosecutor No. 659-615 

 P.O. Box 5500 

CHRISTOPHER REAMER Chillicothe, Ohio 45601 

Assistant Prosecutor 

20 South Second Street, 4th Floor 

Newark, Ohio 43055 
Licking County, Case No. 15-CA-98 2

Hoffman, P.J. 

{¶1} Defendant-appellant Robert Burns, Jr. appeals the November 25, 2015 

Judgment Entry entered by the Licking County Court of Common Pleas denying his 

petition for post-conviction relief. Plaintiff-appellee is the State of Ohio. 

STATEMENT OF THE CASE1

{¶2} Following a jury trial, Appellant was convicted of three counts of illegal use 

of a minor in a nudity oriented performance, in violation of R.C. 2907.323; three counts of 

corruption of a minor, in violation of R.C. 2907.04(A); and one count of corrupting another 

with drugs, in violation of R.C. 2925.02. The victim of all of the above offenses was 

Appellant’s minor son’s girlfriend. 

{¶3} On May 2, 2012, Appellant filed a direct appeal from his conviction and 

sentence. 

{¶4} Via Opinion and Judgment Entry filed October 9, 2012, this Court affirmed 

Appellant’s conviction and sentence in the Licking County Court of Common Pleas. 

{¶5} On October 22, 2015, Appellant filed a petition for post-conviction relief. 

{¶6} Via Judgment Entry entered November 25, 2015, the trial court denied 

Appellant’s petition for post-conviction relief as untimely. 

{¶7} Appellant appeals, assigning as error, 

{¶8} “I. THE TRIAL COURT ERRED IN ITS DENIAL OF APPELLANT’S FIRST 

CLAIM FOR RELIEF IN VIOLATION OF THE FIFTH AND FOURTEENTH 

AMENDMENT’S [SIC] OF THE UNITED STATES CONSTITUTION, ARTICLE I, 

 

1 A rendition of the underlying facts is unnecessary for resolution of this appeal. 
Licking County, Case No. 15-CA-98 3

SECTION 10 OF THE OHIO CONSTITUTION, AND BRADY VS. MARYLAND, 373 U.S. 

83, 10 L. ED. 2D 215, 83 S. CT. 1197 (1963). 

{¶9} “II. THE TRIAL COURT ERRED IN ITS DENIAL OF APPELLANT’S 

SECOND CLAIM FOR RELIEF IN VIOLATION OF THE FOURTH, FIFTH, SIXTH, AND 

FOURTEENTH AMENDMENT’S [SIC] OF THE UNITED STATES CONSTITUTION, AND 

ARTICLE I, SECTION 10, AND 14 OF THE OHIO CONSTITUTION. 

{¶10} “III. THE TRIAL COURT ERRED IN ITS DENIAL OF APPELLANT’S [SIC] 

THIRD CLAIM FOR RELIEF, IN VIOLATION OF THE FIFTH AND FOURTEENTH 

AMENDMENT’S [SIC] OF THE UNITED STATES CONSTITUTION, AND THE RIGHT 

TO EQUAL PROTECTION OF THE LAW. 

{¶11} “IV. THE TRIAL COURT ERRED IN ITS DENIAL OF APPELLANT’S [SIC] 

FOURTH CLAIM FOR RELIEF WITHOUT HOLDING AN EVIDENTRY [SIC] HEARING, 

IN VIOLATION OF HIS DUE PROCESS [SIC] AND A SPEEDY TRIAL, IN VIOLATION 

OF THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENT’S [SIC] OF THE UNITED 

STATES CONSTITUTION AND ARTICLE 1, SECTION 10 OF THE OHIO 

CONSTITUTION. 

{¶12} “V. APPELLANT WAS DENIED THE RIGHT TO A FAIR TRIAL, AND DUE 

PROCESS OF LAW, DUE TO THE INEFFECTIVE ASSISTANCE OF COUNSEL, IN 

VIOLATION OF THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENT’S [SIC] OF 

THE UNITED STATES CONSTITUTION, AND ARTICLE 1, SECTION 10 OF THE OHIO 

CONSTITUTION?” 
Licking County, Case No. 15-CA-98 4

I. II. III. IV. and V. 

{¶13} We decline to address the merits of Appellant’s assigned errors as we find 

the trial court’s determination Appellant’s petition for post-conviction relief was untimely 

was correct. Accordingly, we affirm the judgment of the trial court. 

{¶14} R.C. 2953.21(A)(2) provides, 

 (2) Except as otherwise provided in section 2953.23 of the Revised 

Code, a petition under division (A)(1) of this section shall be filed 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 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 three hundred sixtyfive days after the expiration of the time for filing the appeal. 

{¶15} R.C. 2953.23, reads, 

 (A) Whether a hearing is or is not held on a petition filed pursuant to 

section 2953.21 of the Revised Code, 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: 

 (1) Both of the following apply: 
Licking County, Case No. 15-CA-98 5

 (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. 

 (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. 

{¶16} Appellant herein does not provide any justification for the untimely filing of 

his petition for post-conviction relief, and does not satisfy any of the exceptions provided 

for in R.C. 2953.23. 

{¶17} Appellant’s assignments of error are overruled. 
Licking County, Case No. 15-CA-98 6

{¶18} The judgment of the trial court is affirmed. 

By: Hoffman, P.J. 

Wise, J. and 

Baldwin, J. concur