[Cite as State v. Brown, 2012-Ohio-2126.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-11-68
v.
ANTWAYNE D. BROWN, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR 2004 0459
Judgment Affirmed
Date of Decision: May 14, 2012
APPEARANCES:
Antwayne D. Brown, Appellant
Jana E. Emerick for Appellee
Case No. 1-11-68
WILLAMOWSKI, J.
{¶1} Defendant-appellant Antwayne D. Brown (“Brown”) brings this
appeal from the judgment of the Court of Common Pleas of Allen County denying
his motion for post-conviction relief. For the reasons set forth below, the
judgment is affirmed.
{¶2} On January 11, 2005, a jury convicted Brown of one count of
aggravated burglary with a firearm specification, one count of aggravated robbery
with a firearm specification, and felonious assault with a firearm specification.
The trial court then proceeded to immediately sentence Brown to an aggregate
prison term of twenty-nine years. The verdicts and sentence were journalized on
January 14, 2005. A direct appeal was taken and on November 21, 2005, this
court affirmed Brown’s convictions and sentences. State v. Brown, 3d Dist. No. 1-
05-11, 2005-Ohio-6177.
{¶3} On October 14, 2011, Brown filed a petition for post-conviction relief.
The State filed its response on October 17, 2011. On October 26, 2011, the trial
court dismissed Brown’s petition. Brown appeals from this judgment and raises
the following assignments of error.
First Assignment of Error
The trial court erred when [it] denied [Brown’s] petition for
post-conviction relief based on being untimely.
-2-
Case No. 1-11-68
Second Assignment of Error
The trial court erred when [it] denied [Brown’s] petition for
post-conviction relief and abused [its] discretion when doing so
without a hearing.
{¶4} The first assignment of error alleges that the trial court erred in
denying Brown’s petition for post-conviction relief. Petitions for post-conviction
relief are governed by R.C. 2953.21, which states in pertinent part as follows.
Any person who has been convicted of a criminal offense * * *
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.
***
[A] petition under division (A)(1) of this section 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 * * *.
R.C. 2953.21(A)(1-2). A court generally is prohibited from considering a petition
filed past the statutory deadline. R.C. 2953.23(A). However, an untimely motion
may be considered if both of the following requirements are met. R.C. 2953.23.
(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 [R.C. 2953.21(A)(2)] or to
-3-
Case No. 1-11-68
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 * * *.
R.C. 2953.23(A)(1).
{¶5} In this case, Brown claims that he was prevented from filing a timely
petition. He alleges that he did not commit the offenses and that he recently came
into possession of an affidavit from the real offender, one Antwon Dotson
(“Dotson”). Brown also alleges that the State was aware of Dotson’s confessions
prior to his trial and did not disclose the existence of Dotson’s statements to
Brown. However, a review of the record indicates that Brown was aware of
Dotson at the time of the trial and did not call him to testify at trial. Tr. 352. In
addition, the attached affidavit from Dotson was dated November 10, 2009.1 The
petition was not filed until 2011. Since the record indicates that Brown was aware
of Dotson’s connection to this case at the time of trial, it is not newly discovered
evidence. The petition was not filed within the statutory deadline. Thus the trial
court did not err in dismissing the petition. The first assignment of error is
overruled.
1
This court notes that the notary signed the affidavit on November 4, 2009.
-4-
Case No. 1-11-68
{¶6} Brown also alleges that the trial court erred by not holding a hearing
before dismissing the petition. A hearing on a petition for post-conviction relief is
not necessary unless the trial court finds that the petition sets forth substantive
grounds for relief. State v. Calhoun, 86 Ohio St.3d 279, 282-83 (1999) and R.C.
2953.21(C).
{¶7} Here, there is no question that the petition was not timely filed. The
trial court reviewed the attached affidavits and the records. The trial court then
determined that the timeliness exceptions set forth in R.C. 2953.23(A) did not
apply in this case. This court has affirmed this finding above. Thus, since the
petition was not timely filed and the exceptions did not apply, the trial court had
no authority to consider the petition, let alone hold a hearing. The trial court did
not err in dismissing the appeal without a hearing. The second assignment of error
is overruled.
{¶8} Having found no error prejudicial to Brown, the judgment of the Court
of Common Pleas of Allen County is affirmed.
Judgment Affirmed
PRESTON and ROGERS, J.J., concur.
/jlr
-5-