[Cite as State v. Johnson, 2012-Ohio-2542.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24775
v. : T.C. NO. 10CR1201/2
WILLIAM A. JOHNSON : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 8th day of June , 2012.
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MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
JAY A. ADAMS, Atty. Reg. No. 0072135, 424 Patterson Rd., Dayton, Ohio 45419
Attorney for Defendant-Appellant
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FROELICH, J.
{¶ 1} William Johnson appeals from the denial of his petition for
post-conviction relief. Because the trial court properly denied the petition, the judgment of
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the trial court will be affirmed.
I.
{¶ 2} In May 2010, Johnson was indicted on two counts of aggravated robbery
with firearm specifications, four counts of kidnapping with firearm specifications, and one
count of tampering with evidence. Two months later, Johnson pled guilty to all counts and
specifications. On August 18, 2010, the trial court sentenced him to fourteen years in
prison.
{¶ 3} Johnson timely appealed from his conviction. State v. Johnson, 2d Dist.
Montgomery No. 24260. On October 27, 2010, a CD with a video recording of the hearing
on his “motion for costs of expert” and his sentencing was filed with this Court. The
following day, the clerk of court issued its App.R. 11(B) notification, which informed the
parties that the record on appeal was complete. No written transcript was filed, and there is
nothing in the record to suggest that Johnson made any effort to have a written transcript
prepared. In March 2011, after notice to Johnson, we dismissed his appeal because he had
failed to file a brief.
{¶ 4} On April 26, 2011, Johnson filed a petition for post-conviction relief,
claiming that his trial counsel rendered ineffective assistance and that counsel’s deficiencies
could not have been raised on direct appeal. Johnson supported his petition with his own
affidavit and an affidavit from his grandfather. The State moved for summary judgment on
the grounds that Johnson’s petition failed to state substantive grounds for relief and his
claims were barred by res judicata.
{¶ 5} The trial court granted the State’s motion for summary judgment and
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overruled Johnson’s petition without a hearing. It found that Johnson had “failed to submit
evidentiary documents containing sufficient operative facts to demonstrate the lack of
competent counsel and that his defense was prejudiced by counsel’s ineffectiveness.” The
court noted that Johnson’s “broad, conclusory statements” did not warrant an evidentiary
hearing.
{¶ 6} Johnson appeals from the trial court’s judgment.
II.
{¶ 7} In his sole assignment of error, Johnson claims that “[t]he trial court
committed error by granting the State’s motion for summary judgment and overruling
Appellant’s petition for post-conviction relief without granting a hearing.”
{¶ 8} An appellate court reviews a trial court’s denial of a petition for
post-conviction relief under an abuse-of-discretion standard. State v. Gondor, 112 Ohio
St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58. An abuse of discretion implies an
arbitrary, unreasonable, unconscionable attitude on the part of the trial court. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 9} A post-conviction proceeding is not an appeal of a criminal conviction; it is
a collateral civil attack on the judgment. Gondor at ¶ 48; State v. Steffan, 70 Ohio St.3d
399, 410, 639 N.E.2d 67 (1994); R.C. 2953.21(J). For this reason, a defendant’s petition
for post-conviction relief is not a constitutional right; the only rights afforded to a defendant
in post-conviction proceedings are those specifically granted by the legislature. Steffan, 70
Ohio St.3d at 410; State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905 (1999).
{¶ 10} Petitions for post-conviction relief are governed by R.C. 2953.21 through
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R.C. 2953.23. Under these statutes, any defendant who has been convicted of a criminal
offense and who claims to have experienced a denial or infringement of his or her
constitutional rights may petition the trial court to vacate or set aside the judgment and
sentence. R.C. 2953.21(A).
{¶ 11} The State asserts, as a preliminary matter, that no hearing was necessary
because Johnson’s petition was not timely filed. Although the State did not raise this
argument in the trial court, the issue was not waived, as the trial court lacks jurisdiction to
consider an untimely petition for post-conviction relief, unless the untimeliness is excused
under R.C. §2953.23(A). See State v. James, 10th Dist. Franklin No. 11AP-246,
2011-Ohio-6457, ¶ 14 (the State “neither may waive nor forfeit” the jurisdictional limitation
in R.C. 2953.21); State v. West, 2d Dist. Clark No. 08 CA 102, 2009-Ohio-7057, ¶ 7 (“The
time bar imposed by R.C. 2953.21(A) is jurisdictional.”).
{¶ 12} When a direct appeal has been taken, a petition for post-conviction relief
must be filed “no later than one hundred and eighty days after the date on which the trial
transcript is filed in the court of appeals * * *.” R.C. 2953.21(A)(2). If no direct appeal is
filed, “the petition shall be filed no later than one hundred eighty days after the expiration of
the time for filing the appeal.” Id.
{¶ 13} The State argues that, because no written transcript was filed in his direct
appeal, Johnson was required to file his petition for post-conviction relief within 180 days of
the expiration of the time for filing the direct appeal. The State thus contends that any
petition for post-conviction relief needed to have been filed by March 16, 2011; Johnson did
not file his petition until April 26, 2011, six weeks after that date. We disagree with the
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State’s contention that we should treat Johnson’s petition as if no appeal had been filed.
{¶ 14} The Ohio Supreme Court recently addressed when the “trial transcript” is
filed for purposes of calculating the time by which to file a petition for post-conviction
relief. State v. Everette, 129 Ohio St.3d 317, 2011-Ohio-2856, 951 N.E.2d 1018. In that
case, Everette’s petition was filed within 180 days of the filing of the written transcript, but
more than 180 days after the filing of the videotapes of the proceedings. The supreme court
noted that the post-conviction relief statute did not define “trial transcript,” and it concluded
that the common usage of the terms “transcript” or “transcript of proceedings” required that
a transcript be in written, typed, or printed form. Id. at ¶ 16-20. (The court further
commented that its holding was consistent with the soon-to-be effective July 1, 2011
amendments to App.R. 9, which now requires a written transcript for the record on appeal,
regardless of the method of recording the proceedings.)
{¶ 15} The Ohio Supreme Court expressly rejected the State’s assertion that the
issue was governed by the portion of then-App.R. 9(A), which provided, “A videotape
recording of the proceedings constitutes the transcript of proceedings other than hereinafter
provided, and, for purposes of filing, need not be transcribed into written form.” The court
explained,
Significantly, the rule later states: “When the written form is certified by the
reporter in accordance with App.R. 9(B), such written form shall then
constitute the transcript of proceedings.” (Emphasis added.) Thus,
although it is true that a videotape recording of the proceedings constitutes
the transcript of the proceedings when a written transcript is not provided,
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pursuant to this exception, when a written transcript is certified by the
reporter, it constitutes the “transcript of proceedings” under App.R. 9(A).
We thus hold that whenever a written transcript is certified by the reporter in
accordance with App.R. 9(A), the written transcript shall constitute the trial
“transcript” or “transcript of proceedings” for purposes of calculating the time
by which to file a petition for postconviction relief. A videotape recording
constitutes the trial transcript or transcript of proceedings only when there is
no written transcript certified by the reporter.
(Emphasis added.) Everette at ¶ 27. The supreme court concluded in Everette’s case that
the time for filing his petition began to run when the written transcript was filed.
{¶ 16} In this case, Johnson was sentenced on August 18, 2010, and he timely filed
a notice of appeal. Consequently, Johnson had 180 days from the filing of the trial
transcript in his appeal to file his petition for post-conviction relief. A CD containing a
video recording of the hearing was filed on October 27, 2010. Because no written transcript
was filed, the filing of the CD constituted the trial transcript for purposes of calculating the
date by which Johnson was required to file his petition for post-conviction relief. Johnson’s
petition was filed on April 26, 2011, which was 181 days after the filing of the CD.
{¶ 17} Pursuant to R.C. 2953.23(A), a defendant may file an untimely petition for
post-conviction relief if he was unavoidably prevented from discovering the facts upon
which he relies to present his claim, or if the United States Supreme Court recognizes a new
federal or state right that the petitioner alleges applies retroactively to his situation. The
petitioner must also show by clear and convincing evidence that, if not for the constitutional
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error from which he suffered, no reasonable factfinder could have found him guilty. Id.
{¶ 18} Johnson offers no explanation for the late filing of his petition. He
proffers no evidence that he was unavoidably prevented from discovering, and he makes no
claim that the Supreme Court has recognized a new right that applies to him. Thus, he does
not meet the first requirement set forth in R.C. 2953.23(A). Having failed to demonstrate
the first statutory requirement, it is impossible for him to meet the second. Because
Johnson fails to establish either of the conditions that could excuse an untimely filing, the
trial court was without jurisdiction to entertain the petition. When a trial court lacks
jurisdiction to consider an untimely petition, it is not necessary for the court to hold an
evidentiary hearing on that petition. State v. Foster, 10th Dist. Franklin No. 09AP-227,
2009-Ohio-5202, ¶ 8.
{¶ 19} Even if Johnson’s petition were timely filed, an evidentiary hearing is not
required for every petition seeking post-conviction relief. Gondor at ¶ 51. A petition may
be dismissed without a hearing when the petitioner fails to set forth sufficient operative facts
to establish substantive grounds for relief in his petition, the supporting affidavits or
documentary evidence, or in the trial court record. Id.; R.C. 2953.21(C).
{¶ 20} In both his petition and in his appellate brief, Johnson offers five cursory
arguments that his trial counsel was ineffective. He insists that (1) counsel failed to file a
motion to suppress, (2) counsel failed to request severance of the various counts of the
indictment, (3) counsel did not interview potential alibi witnesses, (4) counsel did not
sufficiently explain the discovery to Johnson, and (5) counsel led Johnson to believe that he
would receive no more than a ten-year sentence if he pled guilty to the offenses. In support
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of these claims, Johnson provided the trial court only with his self-serving affidavit and with
an affidavit from his grandfather, which purports to provide some evidence of alibi.
{¶ 21} Johnson provides no explanations of what evidence counsel should have
sought to have suppressed or why, and he offers no argument in support of which counts
should have been severed, or on what bases. Johnson fails to explain how his grandfather’s
affidavit would support an alibi defense. Similarly, he offers no explanation of what
discovery he failed to understand, or why he believed that there was an agreement to a
ten-year sentence, when the record rebuts both claims. Therefore, we would agree with the
trial court’s conclusion that he “failed to submit evidentiary documents containing sufficient
operative facts to demonstrate the lack of competent counsel and that his defense was
prejudiced by counsel’s ineffectiveness.”
{¶ 22} Accordingly, the trial court did not abuse its discretion in denying
Johnson’s untimely petition for post-conviction relief without a hearing. Johnson’s
assignment of error is overruled.
III.
{¶ 23} The trial court’s judgment will be affirmed.
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FAIN, J. and HALL, J., concur.
Copies mailed to:
Michele D. Phipps
Jay A. Adams
Hon. Mary Katherine Huffman
State v. Johnson
Combined Opinion