[Cite as State v. Marrero, 2014-Ohio-553.]
IN THE COURT OF APPEALS
NINTH APPELLATE DISTRICT
LORAIN COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 12CA010282
- vs - :
TITO MARRERO, :
Defendant-Appellant. :
Criminal Appeal from the Lorain County Court of Common Pleas, Case No. 08 CR
075288.
Judgment: Affirmed.
Dennis Will, Prosecuting Attorney, Lorain County Prosecutor’s Office, 225 Court Street,
3rd Floor, Elyria, OH 44035 (For Plaintiff-Appellee).
Tito Marrero, pro se, 604-839, P.O. Box 540, St. Clairsville, OH 43950 (Defendant-
Appellant).
PER CURIAM.
{¶1} Appellant, Tito Marrero, pro se, appeals the judgment of the Lorain County
Court of Common Pleas denying his petition for post-conviction relief. At issue is
whether the trial court erred in finding Marrero’s petition was time-barred. For the
reasons that follow, we affirm.
{¶2} Police officers from the Lorain Police Department developed an interest in
an individual named Jose Rodriguez after receiving a tip that he was involved in drug
trafficking. Physical surveillance, monitored phone calls, and trash pulls at Rodriguez’
residence all confirmed that he was involved in the drug trade. After conducting
surveillance for several months, the police executed a search warrant at the residence
just after midnight on January 17, 2008. Marrero, Rodriguez’ nephew, arrived at the
residence shortly before the police entered. In searching the entire residence, the police
opened Marrero’s duffel bag and found cocaine inside. Upon opening the bag, the
officer who examined its contents commented that the bag appeared to contain “almost
a key,” meaning one kilogram of cocaine. Marrero corrected the officer, stating “[n]o, it’s
only about 14,” meaning fourteen grams of cocaine. Following this statement, Marrero
was handcuffed.
{¶3} On February 28, 2008, a grand jury indicted Marrero on the following
counts: (1) trafficking in cocaine, in violation of R.C. 2925.03(A)(1); (2) possession of
cocaine, in violation of R.C. 2925.11(A); and (3) possession of drug paraphernalia, in
violation of R.C. 2925.14(C)(1). Marrero pled not guilty.
{¶4} On August 8, 2008, Marrero filed a motion to suppress, challenging the
search of his duffel bag. The trial court held a suppression hearing, following which the
court denied the motion.
{¶5} Subsequently, the trial court allowed Marrero to act pro se, but ordered his
former counsel to remain on the case in an advisory capacity. Marrero filed another
motion to suppress the oral statement he made at the scene. The trial court agreed to
consider the motion and held an additional suppression hearing. On October 15, 2009,
the court denied the motion.
{¶6} Thereafter, Marrero withdrew his not guilty plea and pled no contest to all
counts in the indictment. The trial court sentenced him to a total of three years in prison.
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{¶7} Marrero filed a direct appeal, challenging the trial court’s denial of his
motion to suppress the cocaine found in his duffel bag, the court’s denial of his motion
to suppress his statement regarding the amount of cocaine in his duffel bag, and the
court’s order requiring him to repay court-appointed attorney fees. In State v. Marrero,
9th Dist. Lorain No. 10CA009867, 2011-Ohio-3745 (“Marrero I”), this court affirmed the
trial court’s rulings on Marrero’s suppression motions, but reversed the court’s order that
Marrero repay court-appointed fees on the ground that the trial court did not make any
findings on the record that Marrero was financially able to pay attorney fees. Id. at ¶21-
22. This court remanded for a determination of Marrero’s ability to pay his court-
appointed attorney fees. The trial court re-sentenced Marrero. He did not appeal the
re-sentencing.
{¶8} On October 28, 2011, Marrero filed an application to reopen his direct
appeal in Marrero I in this court pursuant to App.R. 26(B). He argued his appellate
counsel was ineffective in not arguing judicial bias and prosecutorial misconduct. This
court denied Marrero’s motion to reopen.
{¶9} Marrero filed an untimely notice of appeal of this court’s decision in
Marrero I and a motion for a delayed appeal in the Supreme Court of Ohio. The
Supreme Court denied the motion and dismissed the appeal on November 30, 2011, at
130 Ohio St.3d 1474, 2011-Ohio-6124.
{¶10} On May 9, 2012, Marrero filed a motion in the trial court to withdraw his no
contest plea. The trial court denied that motion. Marrero did not appeal the trial court’s
ruling.
{¶11} On November 14, 2012, Marrero filed a petition for a writ of habeas corpus
in the Seventh District, asserting, inter alia, violations of his due process and equal
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protection rights, judicial bias, prosecutorial misconduct, and ineffective assistance of
his trial counsel. On January 29, 2013, the Seventh District dismissed that petition in
Marrero v. Miller, 7th Dist. Belmont No. 12 BE 37, 2013-Ohio-363.
{¶12} Meanwhile, on August 10, 2012, Marrero filed a petition for post-conviction
relief in the trial court, alleging, inter alia, a violation of his due process rights, judicial
bias, prosecutorial misconduct, and ineffective assistance of his trial and appellate
counsel. On August 27, 2012, the trial court denied Marrero’s petition as untimely.
{¶13} Marrero appeals the trial court’s denial of his petition for post-conviction
relief, asserting four assignments of error. Because his assigned errors are disposed of
on identical grounds, they are considered together. They allege:
{¶14} “[1.] Judge Miraldi lacked the proper personal jurisdiction to adjudicate the
appellant’s Rights. He (judge) was not an impartial adjudicator which is mandated by
the 5th and 14th Amendments’ Due Process Clauses rendering his judgments,
decisions, and orders invalid and voidable. Structural error is prejudicial.
{¶15} “[2.] The Lorain County Prosecutor’s Office should have been disqualified
from prosecuting this case due to their involvement (Intimate) with the investigation, with
the production of all search warrants and their affidavits, reviewed all the warrants for
the sufficiency of probable cause, and ultimately, would assist the Lorain Police Officers
in the execution of the premises search warrant where the appellant, Tito E. Marrero’s,
4th Amendment Rights would be violated. Then, the County Prosecutor’s Office would
prosecute case with partialness [sic], bias, and misconduct, which led to witholding [sic]
of discoverable exculpatory evidence, staging of fabricated, false, perjured testimonial
evidence and never correcting it, and blatent [sic] discrimination. This is Structural Error
and manifest injustice.
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{¶16} “[3.] The appellant, Tito E. Marrero, experienced conflict of interest filled
[sic] advocating during ‘critical stages’ of his criminal proceedings rendering his
proceedings to [sic] a hollow formality which renders his ‘no-contest’ plea as if made
involuntarily. Ineffective assistance of counsel is also a structural error. Kenny Lieux
was ineffective during the 18 December, 2008, 4th Amendment Suppression of
Evidence Hearing. And, Erin A. Downs traitorously filed an appellate brief without any
substance and real time facts rendering my Direct Appeal, which is a Constitutionally
protected Right, a mockery of justice.
{¶17} “[4.] Trial Transcripts were not transmitted in complete form, and Affidavit
of Disqualification of Judge Miraldi did not remain on Docket Sheet as filed. This is an
Equal Protections [sic] violation. The appellant, Tito E. Marrero, only recieved [sic] a
partial review of his criminal proceedings, which is relevant to a Post Conviction
Petition.”
{¶18} “Generally, this Court reviews a trial court’s denial of a [post-conviction
relief] petition for an abuse of discretion.” State v. Perry, 9th Dist. Summit No. 26766,
2013-Ohio-4466, ¶7. However, if the petition is denied on the basis of an issue of law,
this Court’s review is de novo. State v. Childs, 9th Dist. Summit No. 25448, 2011-Ohio-
913, ¶9. “Whether a defendant’s post-conviction relief petition satisfied the procedural
requirements set forth in R.C. 2953.21 and R.C. 2953.23 is an issue of law.” Id., citing
State v. Samuels, 9th Dist. Summit No. 24370, 2009-Ohio-1217, ¶3-7. Because we
determine whether Marrero’s petition satisfied the procedural requirements in R.C.
2953.21 and R.C. 2953.23, the de novo standard of review is applicable here.
{¶19} “Where a criminal defendant, subsequent to his or her direct appeal, files
a motion seeking vacation or correction of his or her sentence on the basis that his or
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her constitutional rights have been violated, such a motion is a petition for post-
conviction relief as defined in R.C. 2953.21.” State v. Reynolds, 79 Ohio St.3d 158
(1997), syllabus. R.C. 2953.21(A)(1)(a) provides, in pertinent part:
{¶20} 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.
{¶21} R.C. 2953.21(A)(2) provides, in pertinent part, that, “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 * * *.”
{¶22} Further, R.C. 2953.23(A)(1)(a)-(b) provides that a trial court may not
entertain an untimely petition for post-conviction relief unless the petitioner shows that:
(1) he or she “was unavoidably prevented from discovery of the facts upon which the
petitioner must rely to present the claim for relief * * *;” and (2) “[t]he petitioner shows by
clear and convincing evidence that, but for the constitutional error at trial, no reasonable
factfinder would have found petitioner guilty.”
{¶23} This court’s docket in Marrero I shows the transcript of proceedings was
filed on March 4, 2011. Marrero therefore had until approximately September 5, 2011 to
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file his petition for post-conviction relief. However, he did not file his petition until
August 10, 2012. Thus, the trial court correctly found the filing date for the petition
exceeded the 180-day limit. In fact, Marrero exceeded the limit by nearly one year. The
court also found that Marrero failed to meet the statutory requirement that would allow
his petition to exceed the 180-day time limit. The trial court thus denied Marrero’s
petition as untimely filed.
{¶24} We note that Marrero does not challenge the trial court’s finding that his
petition was untimely. Further, he does not argue he satisfied the requirements of R.C.
2953.23(A)(1), which would have permitted the filing of a delayed petition. He does not
argue he was unavoidably prevented from discovering facts on which he needed to rely
to present his claim for relief. In fact, none of his arguments has anything to do with the
trial court’s finding that his petition for post-conviction relief was untimely.
{¶25} Because Marrero’s petition was untimely and did not comply with the
requirements of R.C. 2953.23(A)(1), the trial court lacked authority to consider his
petition for post-conviction relief. See Samuels, supra, at ¶6; State v. Cleveland, 9th
Dist. Lorain No. 08CA009406, 2009-Ohio-397, ¶27. Accordingly, the court did not err in
denying his petition.
{¶26} For the reasons stated in the opinion of this court, appellant’s assignments
of error are overruled. It is the judgment and order of this court that the judgment of the
Lorain County Court of Common Pleas is affirmed.
{¶27} We order that a special mandate issue out of this Court, directing the
Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into
execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
App.R. 27.
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{¶28} Immediately upon the filing hereof, this document shall constitute the
journal entry of judgment, and it shall be file stamped by the Clerk of the Court of
Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk
of the Court of Appeals is instructed to mail a notice of entry of this judgment to the
parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
{¶29} Any and all pending motions are denied as moot.
{¶30} Costs to be taxed against appellant.
_____________________________________
PRESIDING JUDGE TIMOTHY P. CANNON
Eleventh Appellate District,
Sitting by Assignment.
JOSEPH J. VUKOVICH, J.,
Seventh Appellate District,
Sitting by Assignment,
CYNTHIA WESTCOTT RICE, J.,
Eleventh Appellate District,
Sitting by Assignment,
concur.
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