[Cite as State v. Allen, 2011-Ohio-3843.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96311
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DAVID JIMMIE ALLEN
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-489462
BEFORE: Blackmon, P.J., Rocco, J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: August 4, 2011
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APPELLANT
David Jimmie Allen, Pro Se
Inmate No. 542-502
Lorain Correctional Institution
2075 South Avon Belden Road
Grafton, Ohio 44044
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Katherine Mullin
Aaron Brockler
Assistant County Prosecutors
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, P.J.:
{¶ 1} Appellant David Jimmie Allen (“Allen”) appeals pro se the trial
court’s denial of his untimely petition for post-conviction relief and assigns
the following three errors for our review:
“I. The trial court erred by denying without an
evidentiary hearing appellant’s postconviction petition
alleging ineffective assistance of counsel when appellant
had submitted evidentiary documents containing
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sufficient operative facts to demonstrate ineffective
assistance of counsel as well as proof that appellant was
unavoidably prevented from discovering the facts in
which he must rely to make a timely petition for
postconviction relief pursuant to R.C. 2953.21 180 day time
limit. The trial court thereby violated appellant’s
statutory rights granted by R.C. 2953.23; and deprived him
of due process of law and effective assistance of counsel in
violation of Article I, Section 10 and 16 of the Ohio
Constitution and the Sixth and Fourteenth Amendments
to the United States Constitution.”
“II. When a trial court denies a defendant’s motion for
mistrial and convicts a defendant after undeniable proof
of the states alleged negligence in providing accurate
Criminal Rule 16 discovery renders a defendant’s jury
waiver invalid therefore no valid conviction can be
obtained from this error, in violation of defendant’s right
to due process of law under the Fourteenth Amendment to
the United States Constitution and Article 1, Section 14 of
the Ohio Constitution.”
“III. When trial counsel doesn’t object to a trier of fact
verdict finding defendant not guilty of the indicted charge
and guilty of a lesser, when there was no sufficient
evidence in the record supporting such a conclusion a
defendant is denied his constitutional right to effective
assistance of counsel in violation of his rights under the
Sixth Amendment to the United States Constitution and
Article 1, Section 10 of the Ohio Constitution.”
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{¶ 2} Having reviewed the record and pertinent law, we affirm the trial
court’s decision. The apposite facts follow.
Facts
{¶ 3} In February 2008, Allen was convicted of murder with one-and
three-year firearm specifications. The trial court sentenced Allen to a
15-to-life prison sentence. Allen appealed his conviction, which this court
upheld in State v. Allen, Cuyahoga App. No. 91107, 2009-Ohio-2572.1
{¶ 4} On November 29, 2010, Allen filed a petition for postconviction
relief and requested an evidentiary hearing. He argued that his trial counsel
was ineffective for failing to use a witness statement collected by a private
detective, failed to object to the trial court’s finding him guilty of the lesser
included offense of murder, and the trial court erred by denying his motion
for a mistrial when it was clear the state conducted negligent discovery. The
trial court denied Allen’s petition without holding a hearing.
Untimely Petition for Postconviction Relief
{¶ 5} Before reviewing Allen’s assigned errors, we address the trial
court’s jurisdiction to review an untimely filed petition of postconviction
relief.
For a detailed factual account of the events leading to Allen’s conviction, see
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our decision from Allen’s direct appeal.
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{¶ 6} R.C. 2953.21(A)(2) provides that if a direct appeal is taken, a
petition for postconviction relief shall be filed no later than 180 days after the
filing of the trial transcript in the court of appeals. Here, the trial
transcript was filed in the court of appeals on April 15, 2008. Therefore, his
petition for postconviction relief needed to be filed by October 12, 2008.
Allen waited until November 29, 2010, to file his petition. Because he filed
the petition more than two years after the required deadline, it was untimely
filed.
{¶ 7} A petition challenging a conviction filed after the 180-day
requirement is untimely and the trial court may not entertain it unless one of
the enumerated exceptions apply. See R.C. 2953.23(A); State v. Houston,
Cuyahoga App. No. 95994, 2011-Ohio-2798; State v. Knuckles, Cuyahoga App.
No. 89361, 2008-Ohio-2031; State v. Perotti, Cuyahoga App. No. 89731,
2008-Ohio-1266. Here, the only relevant exception, R.C. 2953.23(A)(1),
allows an untimely petition if the following two prongs apply:
“(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.
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“(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
* * *.”
{¶ 8} We conclude that Allen failed to prove he was unavoidably
prevented from discovering the facts upon which his petition was based.
While he argues his defense counsel refused to give him his file, which
contained the investigator’s report, the record shows he was sent the file in
July 2009. Thus, the delay in receiving the investigator’s report does not
excuse his failure to file his petition until November 2010, more than a year
after receiving the file. Accordingly, Allen’s assigned errors are overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this
judgment into execution. The defendant’s conviction having been affirmed,
any bail pending appeal is terminated. Case remanded to the trial court for
execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
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PATRICIA ANN BLACKMON, PRESIDING JUDGE
KENNETH A. ROCCO, J., and
EILEEN A. GALLAGHER, J., CONCUR