[Cite as State v. Boware, 2013-Ohio-5225.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26952
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
MELVIN L. BOWARE COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 93 06 1412
DECISION AND JOURNAL ENTRY
Dated: November 27, 2013
WHITMORE, Judge.
{¶1} Appellant, Melvin Boware, appeals from the judgment of the Summit County
Court of Common Pleas. This Court affirms.
I
{¶2} On August 31, 1993, Boware pleaded guilty to one count of gross sexual
imposition. The court sentenced him to one year in prison, suspended, and two years of
probation. No appeal was filed. In December 1994, the court granted Boware’s motion to
terminate his probation.
{¶3} In 2013, Boware filed a “PETITION TO VACATE OR SET ASIDE
JUDGMENT OF CONVICTION OR SENTENCE,” a “MOTION FOR APPOINTMENT OF
COUNSEL,” a “MOTION FOR EXPERT ASSISTANCE,” a “MOTION TO VACATE MY
PLEA CONVICTION OR HAVE A NEW TRIAL,” and a “MOTION TO HAVE PLEA
CONVICTION VACATED OR HAVE A NEW TRIAL.” The State filed memoranda in
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opposition. The trial court denied all of his motions. Boware now appeals and raises one
assignment of error for our review.
II
Assignment of Error
APPELLANT’S CONVICTION FOR GROSS SEXUAL IMPOSITION WAS
BECAUSE THE PROSECUTION DENIED THE APPELLANT THE
OPPORTUNITY. TO IMPEACH ITS KEY WITNESS. WHOSE TESTIMONY
WAS NOT ONLY MATERIAL TO HIS DEFENCE. BUT, WAS ALSO
FAVORABLE TO HIS DEFENCE. IT, ALSO HAD EXCULPATORY VALUE
TO PROVING HIM ACTUALLY INNOCENT OF THE CHARGES AGAINST
HIM. (Sic.)
{¶4} In his sole assignment of error, Boware argues that the trial court erred in denying
his petition for post-conviction relief. We disagree.
{¶5} “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. Therefore, a de novo standard of review is applicable here.
{¶6} “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 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 provides, in
relevant part, that:
[a]ny 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
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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.
R.C. 2953.21(A)(1)(a). R.C. 2953.21(A)(2) provides, in relevant part, that, “[i]f no appeal is
taken, * * * the petition shall be filed no later than one hundred eighty days after the expiration
of the time for filing the appeal.”
{¶7} A trial court may not entertain an untimely petition for post-conviction relief
unless the petitioner shows that: (1) either he or she “was unavoidably prevented from discovery
of the facts upon which the petitioner must rely to present the claim for relief, or, [after the filing
deadline], the United States Supreme Court recognized a new federal or state right that applies
retroactively to persons in the petitioner’s situation, and that the petition asserts a claim based on
that right”; and (2) the petitioner shows, by clear and convincing evidence, that, but for the
constitutional error at trial, no reasonable fact-finder would have found petitioner guilty. R.C.
2953.23(A)(1)(a)-(b).
{¶8} The trial court accurately summarized Boware’s claims as follows: “(1) The
victim’s brother told another woman that the victim lied in the underlying case; (2) Hearsay
evidence was used to arrest and convict the Defendant for a crime he did not commit; (3) [t]he
Defendant was denied his right to face witnesses in his case; (4) [t]he Defendant was either
forced or coerced to incriminate himself; (5) [t]he Defendant was entrapped by the Akron Police
Department; (6) Tampering with witnesses; (7) Unreasonable seizure; (8) Fabrication of
evidence; (9) Denial of right to counsel; (10) Abuse of authority; (11) Denial of due process
rights; (12) the Akron Police Department withheld DNA evidence favorable to the Defendant;
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(13) Malicious prosecution; (14) Ineffective assistance of counsel; (15) Miscarriage of justice;
(16) Prosecutorial misconduct; and (17) Sufficiency of evidence.”
{¶9} Boware pleaded guilty in August 1993. Therefore, his deadline for filing a
petition for post-conviction relief expired long ago. Further, Boware has failed to satisfy the
requirements of R.C. 2953.23(A)(1) which would have permitted the filing of a delayed petition.
Because Boware’s petition did not comply with the statutory requirements, the court lacked
jurisdiction to consider his petition for post-conviction relief. See State v. Cleveland, 9th Dist.
Lorain No. 08CA009406, 2009-Ohio-397, ¶ 27. Accordingly, the court did not err when it
denied his petition. Boware’s sole assignment of error is overruled.
III
{¶10} Boware’s assignment of error is overruled. The judgment of the Summit County
Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, 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.
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
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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.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
BELFANCE, P. J.
CARR, J.
CONCUR.
APPEARANCES:
MELVIN L. BOWARE, pro se, Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.