[Cite as State v. Higgins, 2017-Ohio-909.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 28215
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
THOMAS D. C. HIGGINS COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 11 02 0487
DECISION AND JOURNAL ENTRY
Dated: March 15, 2017
HENSAL, Presiding Judge.
{¶1} Thomas Higgins appeals a judgment of the Summit County Court of Common
Pleas that denied his petition to vacate or set aside judgment of conviction or sentence. For the
following reasons, this Court affirms.
I.
{¶2} In 2011, a jury found Mr. Higgins guilty of felonious assault and a related firearm
specification. The trial court sentenced him to a total of eight years imprisonment. This Court
affirmed his conviction and sentence on appeal. State v. Higgins, 9th Dist. Summit No. 26120,
2012-Ohio-5650.
{¶3} On February 22, 2016, Mr. Higgins filed a petition to vacate or set aside judgment
of conviction or sentence. The State opposed his petition, arguing that it was untimely under
Revised Code Section 2953.23. Upon review, the trial court concluded that the petition was
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untimely. It, therefore, denied Mr. Higgins relief. Mr. Higgins has appealed, assigning two
errors that this Court will address together for ease of consideration.
II.
ASSIGNMENT OF ERROR I
THE DEFENDANT WAS NOT AFFORDED A FAIR TRIAL AND THE
RIGHT TO EFFECTIVE ASSISTANCE OF COUNCIL (SIC) GUARANTEED
BY THE SIXTH AMENDMENT.
ASSIGNMENT OF ERROR II
THE DEFENDANT WAS NOT AFFORDED DUE PROCESS OF THE LAW
GUARANTEED BY THE FOURTEENTH AMENDMENT.
{¶4} Mr. Higgins argues that he was not afforded a fair trial or the right to effective
counsel. Specifically, he argues that his counsel should have sought more discovery and filed
pre-trial motions. He also argues that he was not allowed to inspect or examine any of the
evidence that the State intended to use against him at trial. He further argues that the trial court
should have accepted his untimely petition.
{¶5} Under Revised Code Section 2953.21(A)(2), a petition for post-conviction relief
must be filed no later than 365 days after the day the trial transcript is filed in the direct appeal
from the judgment of conviction and sentence, or, if no direct appeal is taken, 365 days after the
expiration of the time to file an appeal. The trial court is not permitted to consider petitions filed
outside of this period unless the petitioner was unavoidably prevented from discovering the facts
on which he relies or, subsequent to the expiration of the deadline, the United States Supreme
Court recognizes a new federal or state right that applies retroactivity to people in the petitioner’s
situation and the petition asserts a claim based on the new right. R.C. 2953.23(A)(1)(a). The
petitioner must also show “by clear and convincing evidence that, but for constitutional error at
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trial, no reasonable factfinder would have found [him] guilty of the offense of which [he] was
convicted * * *.” R.C. 2953.23(A)(1)(b).
{¶6} In his petition, Mr. Higgins did not allege that there is a new federal or state right
that applies to his situation. He also did not allege that he was unavoidably prevented from
discovering the facts upon which he relies in support of his petition. Although he makes a
blanket assertion that none of his arguments were apparent at the time of trial, it is insufficient to
demonstrate that he was unavoidably prevented from discovering the facts that support his
petition. State v. Phillips, 9th Dist. Summit No. 27733, 2016-Ohio-1198, ¶ 20, citing State v.
Jalowiec, 9th Dist. Lorain No. 02CA008130, 2003-Ohio-3152, ¶ 8.
{¶7} Upon review of the record, we conclude that Mr. Higgins did not file his petition
for post-conviction relief within the time required by Section 2953.21(A)(2). He also failed to
establish grounds for filing an untimely petition under Section 2953.23(A). The trial court,
therefore, correctly determined that it lacked authority to consider his petition. Mr. Higgins’s
assignments of error are overruled.
III.
{¶8} Mr. Higgins’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
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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
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.
JENNIFER HENSAL
FOR THE COURT
CARR, J.
SCHAFER, J.
CONCUR.
APPEARANCES:
THOMAS D. C. HIGGINS, pro se, Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.