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9th District upholds Akron murderer’s sentence
TRACEY BLAIR
Legal News Reporter
Published: March 31, 2022
The 9th District Court of Appeals has affirmed the sentence of an intellectually disabled man who fatally shot two women with deer slugs at his Akron apartment.
On Christmas Eve in 1995, Clifton White III killed Deborah Thorpe and Julie Schrey and then tried to kill Thorpe’s 19-year-old son, Michael, inside of a Kentucky Fried Chicken restaurant. Michael Thorpe suffered serious injuries in the attack, including the loss of most of his right ear, part of his skull and the right upper lobe of his brain.
Prosecutors said White had dated Schrey’s daughter and had been upset because his former girlfriend was now dating Michael Thorpe.
After a jury trial, White was convicted of aggravated murder with two death specifications, murder and attempted aggravated murder, along with firearm specifications for each count. The trial court sentenced him to prison terms for murder and attempted aggravated murder and imposed a death sentence for aggravated murder. The Ohio Supreme Court affirmed his convictions and death sentence on appeal.
White then filed a petition for post-conviction relief in the trial court, which was denied. The 9th District affirmed the trial court’s judgment on appeal. Years later, he filed a second petition for post-conviction relief, which the trial court denied.
The 9th District again affirmed the trial court’s judgment on appeal, but that decision was reversed by the Ohio Supreme Court in 2008, which found White to be intellectually disabled and thus ineligible for the death penalty pursuant to Atkins v. Virginia, 536 U.S. 304 (2002), and State v. Lott, 97 Ohio St.3d 303, 2002-Ohio-6625.
The case was then remanded to the trial court for resentencing. On remand, the trial court resentenced White to 61-to-76 years to life in prison. Years later, White filed a motion to vacate void judgment in the trial court, challenging his original indictment as defective. The court reclassified the motion as a petition for post-conviction relief and denied it as being both untimely and successive.
In White’s most recent appeal, he argued the trial court erred in denying his motion to vacate void judgment because the indictment was allegedly never signed by a foreperson or deputy foreperson. According to White, the defective indictment violated his due process rights and his right to fundamentally fair grand jury proceedings, so the trial court never had jurisdiction and should have vacated his sentence and convictions as void.
However, the appellate court disagreed in a recent 3-0 decision written by 9th District Judge Thomas Teodosio.
The trial court found White’s petition was untimely and successive under R.C. 2953.21 and that he failed to argue any of the exceptions in R.C. 2953.23 applied.
“Mr. White filed a direct appeal from his convictions, and his sentence of death was later overturned by the Supreme Court. Thus, {under former R.C. 2953.21(A)(2)} he was required to file his petition no later than 365 days after the date on which the trial transcript was filed in his direct appeal,” Judge Teodosio wrote. “The trial transcript was filed in Mr. White’s direct appeal to the Supreme Court on January 22, 1997. He filed his petition in this matter on March 4, 2021, more than 24 years past the statutory deadline. Apart from being untimely, Mr. White’s petition was also successive, as the record reveals that he filed two prior petitions for post-conviction relief in 1998 and 2002.”
Former R.C. 2953.23(A)(1) states: A trial court may not entertain untimely or successive petitions for postconviction relief unless the petitioner shows either (1) he was “unavoidably prevented” from discovering the facts he relies on, or (2) subsequent to the 365-day deadline, “the United States Supreme Court recognized a new federal or state right that applies retroactively to persons in [his] situation, and the petition asserts a claim based on that right.” In addition, the petitioner must show “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 he was convicted * * *.”
Judge Teodosio noted that raising a defective indictment argument does not constitute an exception to R.C. 2953.23’s procedural requirements, citing State v. Morris, 9th Dist. Summit No. 24613, 2009-Ohio-3183.
The appellate panel added that even if the trial court had authority to entertain White’s petition, his claims would nonetheless be precluded by res judicata.
“Mr. White argued in his petition that the indictment in this case was defective because it was not signed by the foreperson or deputy foreperson,” Judge Teodosio said. “As a result, he argued that his ‘due process rights and right to fundamentally fair grand jury proceedings were denied by the prosecutor’s failure to present a valid indictment’ and ‘the trial court never invoked its jurisdiction [] by the [r]eturn of a valid indictment.’ Any alleged error in the indictment would have been apparent in the record, however, and Mr. White could have raised that issue prior to trial pursuant to Crim.R. 12(C) and then later on direct appeal.
“… Mr. White’s argument that his sentence and convictions are void because the court ‘never invoked its jurisdiction’ does not change that result. In fact, his contention that the indictment was unsigned does not actually implicate the court’s jurisdiction.
Because the trial court here had both subject matter jurisdiction over the case and personal jurisdiction over White, his sentence was not void, the panel concluded.
“Accordingly, Mr. White’s arguments are now barred by res judicata, and we can only conclude that the trial court did not err in denying his petition for post-conviction relief,” Judge Teodosio said.
Ninth District judges Lynne Callahan and Betty Sutton concurred. The case is cited State v. White, 2022-Ohio-605.