Opinion
No. 08-CA-88.
Rendered on September 4, 2009.
Criminal Appeal from Common Pleas Court, Trial Court Case Nos. 2004-CR-216.
Stephen K. Haller, Atty. Reg. #0009172, by Elizabeth A. Ellis, Atty. Reg. #0074332, Greene County Prosecutor's Office, Attorney for Plaintiff-Appellee.
Jason Michael Guthrie, #A478845, Toledo Correctional Institution, Defendant-Appellant, pro se.
OPINION
{¶ 1} In September 2004, Appellant Jason Guthrie was convicted of ten counts of rape of a child under ten years of age and two counts of gross sexual imposition of a child under thirteen. He was sentenced to ten concurrent life sentences and two four-year terms to be served concurrently for a total of a mandatory life term. Guthrie did not appeal his convictions, but in August, 2008 Guthrie filed a post-conviction relief petition based on the holding of State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624. The trial court denied his petition as untimely.
{¶ 2} Guthrie argues in his assignment of error that the trial court erred in deciding that it did not have jurisdiction to consider his petition. Guthrie contends he was unavoidably prevented from discovering the facts upon which he must rely to present his claim and that but for the constitutional error at trial, no reasonable factfinder would have found him guilty of the crimes for which he was indicted. Specifically, he contends his indictment was defective because the word "knowingly" was omitted from the indicted offenses, citing State v. Colon, supra.
{¶ 3} The State argues that Guthrie cannot meet the requirements of the exception to the time requirements of R.C. 2953.21 by relying on new case law as opposed to newly discovered facts. See State v. Gulertekin (June 8, 2000), Franklin App. No. 99 A.P.-900. We agree.
{¶ 4} R.C. 2953.23(A)(1) provides as follows:
{¶ 5} "(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:
{¶ 6} "(1) Both of the following apply:
{¶ 7} "(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 of 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.
{¶ 8} "(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 factfinder would have found the petitioner eligible for the death sentence."
{¶ 9} The United States Supreme Court has not recognized a new federal or state right that applies retroactively to persons in Guthrie's situation. Furthermore, there was nothing preventing Guthrie from raising the issue of a purported missing mens rea element in his direct appeal. This is true even though an assignment of that purported error would have predated Colon I. Thus, res judicata prevents him raising that issue in his post-conviction relief proceeding. See State v. John T. Hibbler II (July 24, 2009), Clark App. No. 2008-CA-103.
{¶ 10} Lastly, the indictment related to the rape charges is not defective for its failure to include the mens res element of knowingly because rape of a child under 13 is a strict liability offense. See State v. Randall Todd O'Dell (March 9, 2009), Montgomery App. No. 22691. The Appellant's assignment of error is Overruled.
{¶ 11} The judgment of the trial court is Affirmed.
FAIN and FROELICH, JJ., concur.